Exhibit 3.9
------------------------------------------------------------------------------
WORLD OMNI LEASE SECURITIZATION L.P.,
PNC BANK, DELAWARE, AS OWNER TRUSTEE
AND
THE BANK OF NEW YORK, AS INDENTURE TRUSTEE
WORLD OMNI 1998-A AUTOMOBILE LEASE SECURITIZATION TRUST
SECURITIZATION TRUST AGREEMENT
--------------------
DATED AS OF OCTOBER 1, 1998
------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
RECITALS 1
ARTICLE ONE. DEFINITIONS................................................2
Section 1.01. Definitions................................................2
Section 1.02. Article and Section References............................26
ARTICLE TWO. CREATION OF TRUST.........................................26
Section 2.01. Creation of Trust.........................................26
Section 2.02. Conveyance of the 1998-A SUBI Interest....................26
Section 2.03. Acceptance by Owner Trustee...............................27
ARTICLE THREE. DISTRIBUTIONS; RESERVE FUND; STATEMENTS TO
SECURITYHOLDERS.........................................27
Section 3.01. Distribution Account......................................27
Section 3.02. Collections...............................................27
Section 3.03. Distributions.............................................28
Section 3.04. Reserve Fund..............................................32
Section 3.05. Net Deposits..............................................34
Section 3.06. Statements to Noteholders.................................34
ARTICLE FOUR. THE TRANSFEROR CERTIFICATE................................37
Section 4.01. The Transferor Certificate................................37
Section 4.02. Authentication and Delivery of Transferor Certificate.....37
Section 4.03. No Transfer of Transferor Certificate.....................37
Section 4.04. Mutilated, Destroyed, Lost or Stolen Certificates.........37
Section 4.05. Persons Deemed Owners.....................................38
ARTICLE FIVE. THE TRANSFEROR............................................38
Section 5.01. Representations of Transferor.............................38
Section 5.02. Liability of Transferor; Indemnities......................39
Section 5.03. Merger or Consolidation of, or Assumption of the
Obligations of, Transferor; Certain Limitations.........39
Section 5.04. Limitation on Liability of Transferor and Others..........41
Section 5.05. Transferor May Own Notes..................................41
Section 5.06. No Transfer...............................................41
Section 5.07. Tax Matters Partner.......................................41
ARTICLE SIX. THE OWNER TRUSTEE.........................................41
Section 6.01. Duties of Owner Trustee...................................41
Section 6.02. Certain Matters Affecting the Owner Trustee...............42
Section 6.03. Owner Trustee Not Liable for Notes, Transferor
Certificate or Leases...................................43
Section 6.04. Owner Trustee May Own Notes...............................43
Section 6.05. Owner Trustee's Fees and Expenses.........................44
Section 6.06. Eligibility Requirements for Owner Trustee................44
Section 6.07. Resignation or Removal of Owner Trustee...................44
Section 6.08. Successor Owner Trustee...................................45
Section 6.09. Merger or Consolidation of Owner Trustee..................45
Section 6.10. Appointment of Co-Trustee or Separate Owner Trustee.......45
Section 6.11. Representations and Warranties of Owner Trustee...........46
Section 6.12. Tax Returns...............................................47
Section 6.13. Owner Trustee May Enforce Claims Without Possession of
Transferor Certificate..................................47
i
Section 6.14. Suit for Enforcement......................................47
Section 6.15. Rights of Indenture Trustee to Direct Owner Trustee.......47
Section 6.16. No Petition...............................................48
Section 6.17. Authority to Execute......................................48
Section 6.18. Management of the Trust...................................48
ARTICLE SEVEN. TERMINATION...............................................48
Section 7.01. Termination of the Trust..................................48
Section 7.02. Optional Purchase of the 1998-A SUBI Interest.............49
ARTICLE EIGHT. EARLY AMORTIZATION EVENTS.................................49
Section 8.01. Early Amortization Events.................................49
ARTICLE NINE. MISCELLANEOUS PROVISIONS..................................51
Section 9.01. Amendment.................................................51
Section 9.02. Protection of Title to Trust..............................53
Section 9.03. Limitation on Rights of Transferor........................53
Section 9.04. Governing Law.............................................54
Section 9.05. Notices...................................................54
Section 9.06. Severability of Provisions................................54
Section 9.07. Assignment................................................54
Section 9.08. Transferor Certificate Nonassessable and Fully Paid.......54
Section 9.09. Successors and Assigns....................................55
ARTICLE TEN. AGENT FOR SERVICE.........................................55
Section 10.01. Agent for Service of Transferor...........................55
Section 10.02. Agent of Owner Trustee....................................55
EXHIBITS:
Exhibit A - Form of Transferor Certificate...................A-1
Exhibit B - Form of Certificate of Trust.....................B-1
ii
SECURITIZATION TRUST AGREEMENT
THIS SECURITIZATION TRUST AGREEMENT, dated as of October 1, 1998, is
made with respect to the formation of the WORLD OMNI 1998-A AUTOMOBILE LEASE
SECURITIZATION TRUST (the "Trust"), among WORLD OMNI LEASE SECURITIZATION
L.P., a Delaware limited partnership ("XXXX XX" or, in its capacity as
transferor hereunder, the "Transferor"), PNC BANK, DELAWARE, a Delaware
banking corporation, as owner trustee (the "Owner Trustee"), and THE BANK OF
NEW YORK, a national banking association, as indenture trustee (the "Indenture
Trustee").
RECITALS
A. Auto Lease Finance L.P., a Delaware limited partnership ("ALF
LP"), VT Inc., an Alabama corporation (the "Origination Trustee"), and, for
certain limited purposes set forth therein, U.S. Bank National Association, a
national banking association (formerly known as First Bank National
Association and successor trustee to Bank of America Illinois, an Illinois
banking corporation) (together with its successors, "U.S. Bank"), have entered
into that certain Second Amended and Restated Trust Agreement dated as of July
1, 1994, as amended by that certain Amendment No. 1 to Second Amended and
Restated Trust Agreement dated as of November 1, 1994 and that certain
Amendment No. 2 to Second Amended and Restated Trust Agreement dated as of
September 23, 1998 (as the same may be further amended, supplemented or
modified, the "Origination Trust Agreement"), amending and restating that
certain original Trust Agreement dated as of November 1, 1993 among Auto Lease
Finance, Inc. ("ALFI"), the Origination Trustee and U.S. Bank, and that
certain Amended and Restated Trust Agreement dated as of June 1, 1994 among
ALFI, ALF LP, the Origination Trustee and U.S. Bank, pursuant to which ALF LP
and the Origination Trustee formed World Omni LT, an Alabama trust (the
"Origination Trust"), for the purpose of taking assignments and conveyances
of, holding in trust and dealing in various Trust Assets (as defined in the
Origination Trust Agreement) in accordance with the Origination Trust
Agreement. ALFI and World Omni Financial Corp., a Florida corporation
("WOFCO"), ALFI's parent, have entered into that certain Limited Partnership
Agreement dated as of June 1, 1994, as amended and restated pursuant to that
certain Amended and Restated Limited Partnership Agreement dated as of July 1,
1994, pursuant to which ALF LP was formed and ALFI contributed to ALF LP all
of its right, title and interest in and to the Origination Trust.
B. On September 23, 1998, ALFI was merged with and into Auto Lease
Finance, LLC ("ALF LLC"), a Delaware single member limited liability company
the sole member of which is WOFCO, pursuant to that certain Assignment of
General Partnership Interest and Amendment to Amended and Restated Limited
Partnership Agreement of Auto Lease Finance L.P. dated as of September 23,
1998 among WOFCO, ALFI and ALF LLC and that certain Certificate of Merger
dated September 23, 1998 filed by WOFCO with the Secretary of State for the
State of Delaware whereby ALF LLC succeeded to all of the rights and
obligations of ALFI, including but not limited to those as general partner of
ALF LP, as reflected in the Amended and Restated Certificate of Limited
Partnership of ALF LP filed with the Delaware Secretary of State as of
September 23, 1998.
C. The Origination Trustee, on behalf of the Origination Trust, and
WOFCO (in its capacity as servicer, the "Servicer") also have entered into
that certain Second Amended and Restated Servicing Agreement dated as of July
1, 1994, as amended by that certain Amendment No. 1 to Second Amended and
Restated Servicing Agreement dated as of September 23, 1998 (as the same may
be further amended, supplemented or modified, the "Servicing Agreement"),
amending and restating that certain original Servicing Agreement dated as of
November 1, 1993, and that certain Amended and Restated Servicing Agreement
dated as of June 1, 1994, which provides for, among other things, the
servicing of the Trust Assets by the Servicer.
D. Concurrently herewith, and as contemplated by the terms of the
Origination Trust Agreement, ALF LP, the Origination Trustee, U.S. Bank and
XXXX XX have entered into a Supplement
1
1998-A to Trust Agreement dated as of October 1, 1998 (the "1998-A SUBI
Supplement") pursuant to which the Origination Trustee, on behalf of the
Origination Trust and at the direction of ALF LP, will create and issue to ALF
LP a special unit of beneficial interest in the Origination Trust, or "SUBI"
(as defined in the Origination Trust Agreement) (such SUBI, the "1998-A
SUBI"), whose beneficiaries generally will be entitled to the net cash flow
arising from, but only from, the related SUBI Portfolio (as defined in the
Origination Trust Agreement) (such SUBI Portfolio, the "1998-A SUBI
Portfolio"), which 1998-A SUBI will be evidenced by a SUBI Certificate (as
defined in the Origination Trust Agreement) representing a 100% beneficial
interest in the 1998-A SUBI (the "1998-A SUBI Certificate"), all as set forth
in the Origination Trust Agreement and the 1998-A SUBI Supplement.
E. Also concurrently herewith, and as contemplated by the terms of
the Servicing Agreement, the Origination Trustee, on behalf of the Origination
Trust, and the Servicer also have entered into a Supplement 1998-A to
Servicing Agreement dated as of October 1, 1998 (the "1998-A Servicing
Supplement"), pursuant to which the terms of the Servicing Agreement will be
supplemented insofar as they apply to the 1998-A SUBI Portfolio, providing for
further specific servicing obligations that will benefit the holder of the
1998-A SUBI Certificate and the parties to the Securitized Financing (as
defined in the Origination Trust Agreement) contemplated by this Agreement.
F. Also concurrently herewith, ALF LP and the Transferor have entered
into that certain SUBI Certificate Purchase and Sale Agreement dated as of
October 1, 1998 (the "SUBI Certificate Agreement"), pursuant to which ALF LP
sold to the Transferor, without recourse, all of ALF LP's right, title and
interest in and to the 1998-A SUBI and the 1998-A SUBI Certificate, all monies
due thereon and paid thereon in respect thereof and the right to realize on
any property that may be deemed to secure the 1998-A SUBI, and all proceeds
thereof, all in consideration of the cash payment to ALF LP of an amount equal
to the Aggregate Net Investment Value (as defined below) of the 1998-A SUBI
Portfolio as of the Initial Cutoff Date (as defined in the 1998-A SUBI
Supplement).
G. The parties desire to enter into this Agreement to create the
Trust.
H. Also concurrently herewith, the Indenture Trustee and the Owner
Trustee are entering into that certain Indenture dated as of October 1, 1998
(the "Indenture") pursuant to which, among other things, the Trust will issue
the Notes (as defined in the Indenture) and the Trust will grant a security
interest to the Indenture Trustee with respect to all of the Trust Estate (as
defined herein).
I. The parties hereto desire, pursuant to this Agreement, to provide
for the issuance by the Trust of the Transferor Certificate (as defined
herein) and to provide for the exchange of the Transferor Certificate and the
Notes for the 1998-A SUBI Certificate in connection with a Securitized
Financing (as defined in the Origination Trust Agreement) by the Transferor.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE ONE. DEFINITIONS.
Section 1.01. Definitions.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, (a) unless otherwise
defined herein, all capitalized terms used herein shall have the meanings
attributed to them by Section 0.01 of the Origination Trust Agreement, by
Section 10.01 of the 1998-A SUBI Supplement or Section 6.01 of the 1998-A
Servicing Supplement, as applicable, (b) the capitalized terms defined in this
Agreement have the meanings assigned to them in this Agreement and include (i)
all genders and (ii) the plural as well as the singular, (c) all references to
words such as "herein", "hereof" and the like shall refer to this Agreement as
a whole and not to any particular article
2
or section within this Agreement, (d) the term "include" and all variations
thereon shall mean "include without limitation" and (e) the term "or" shall
include "and/or".
"Accelerated Principal Distribution Amount" has the meaning set forth
in Section 3.03(c)(ii).
"Additional Loss Lease" means a 1998-A Lease that has been sold or
otherwise disposed of to pay an Additional Loss Amount.
"Administrative Expense" means any reasonable administrative cost or
expense associated with the Indenture, the Notes, the Trust or the Origination
Trust, including reasonable fees and expenses of attorneys and accountants.
"Advance" means those advances required or permitted to be made by
the Servicer pursuant to Section 9.04 of the 1998-A Servicing Supplement.
"Aggregate Net Investment Value" means, as of any day, the sum of (i)
the aggregate of the Discounted Principal Balances of all 1998-A Leases at
such date, each such Discounted Principal Balance being derived from the
Schedule of Leases and Leased Vehicles as in effect on such date; provided
that as of the last day of any Collection Period, there shall be eliminated
from the Schedule of Leases and Leased Vehicles for the purpose of this
definition (including, without limitation, the determination at any subsequent
time of the Aggregate Net Investment Value as of the last day of any
Collection Period) each 1998-A Lease that became a Charged-off, Liquidated,
Matured or Additional Loss Lease before the end of such Collection Period,
(ii) the aggregate of the Booked Residual Values of those Leased Vehicles that
have been added to Matured Leased Vehicle Inventory within the three
immediately preceding Collection Periods but have not been sold or otherwise
disposed of as of the last day of the most recent Collection Period for no
more than two full Collection Periods, each such Booked Residual Value being
derived from the Schedule of Leases and Leased Vehicles as in effect on such
date, and (iii) prior to the last Transfer Date, the aggregate amount of
Principal Collections (and amounts treated as Principal Collections pursuant
to the last sentence of Section 3.03(b)) that have not been reinvested in
additional 1998-A Leases and 1998-A Leased Vehicles pursuant to Section 11.02
of the 1998-A SUBI Supplement.
"Aggregate Net Losses" means, with respect to a Collection Period, an
amount equal to the aggregate Discounted Principal Balances of all 1998-A
Leases that became Charged-off Leases during such Collection Period minus all
Net Repossessed Vehicle Proceeds and other Net Liquidation Proceeds collected
during such Collection Period with respect to Charged-off Leases.
"Agreement" means this Securitization Trust Agreement and all
amendments hereof and supplements hereto.
"ALFI" means Auto Lease Finance, Inc. and its successors.
"ALF LLC" means Auto Lease Finance LLC, a Delaware single member
limited liability company, the general partner of ALF LP.
"ALF LP" has the meaning set forth in Recital A.
"Alternate Reserve Fund Formula" means that formula pursuant to which
the Reserve Fund Cash Requirement is to be calculated if any Reserve Fund Test
is not satisfied as of any Distribution Date. Pursuant to the Alternate
Reserve Fund Formula, the Reserve Fund Cash Requirement shall equal two times
the Base Reserve Fund Formula, but which amount shall in no event be greater
than the Note Balance on such Distribution Date (after giving effect to
reductions in the Note Balance on such Distribution Date).
3
"Amortization Date" means December 1, 1999.
"Amortization Period" means the period beginning with the day
immediately succeeding the last day of the Revolving Period and ending on the
day the Notes have been paid in full and all unpaid Class A-1 Note Principal
Loss Amounts, Class A-2 Note Principal Loss Amounts, Class A-3 Note Principal
Loss Amounts, Class A-4 Note Principal Loss Amounts, Class B Note Principal
Loss Amounts and unpaid Class B Note Principal Carryover Shortfalls have been
paid in full, in each case with accrued interest thereon, or the Trust
otherwise terminates.
"Authorized Newspaper" means a newspaper of general circulation in
the Borough of Manhattan, The City of New York, printed in the English
language and customarily published on each Business Day, whether or not
published on Saturdays, Sundays and holidays.
"Base Reserve Fund Formula" means that formula pursuant to which the
Reserve Fund Cash Requirement is to be calculated if all Reserve Fund Tests
are satisfied as of any Distribution Date. Pursuant to the Base Reserve Fund
Formula the Reserve Fund Cash Requirement with respect to any Distribution
Date will equal the lesser of (i) the amount of the Reserve Fund Initial
Deposit and (ii) the Note Balance as of the related Distribution Date (after
giving effect to reductions in the Note Balance on such Distribution Date).
"Book-Entry Notes" means a beneficial interest in the Class A Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.10 of the Indenture.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in New York, New York, Chicago, Illinois,
Wilmington, Delaware, Deerfield Beach, Florida, or Mobile, Alabama are
authorized or obligated by law, executive order or governmental decree to be
closed.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq.
"Capped Indenture Trustee Administrative Expenses" means, with
respect to any Distribution Date, the compensation of the Indenture Trustee
pursuant to Section 6.07 of the Indenture and those other Administrative
Expenses with respect to the Indenture and the Notes, including those due
under Section 6.07 of the Indenture that, together with all such
Administrative Expenses paid since the beginning of the calendar year in which
such Distribution Date occurs, do not exceed $50,000 (or $100,000 in any year
in which an Indenture Event of Default occurs and the Indenture Trustee sells
the property of the Trust pursuant to Section 5.17 of the Indenture).
"Capped Owner Trustee Administrative Expenses" means, with respect to
any Distribution Date, the compensation of the Owner Trustee pursuant to
Section 6.05 and those other Administrative Expenses with respect to the
Trust, including those due under Section 6.05, as are due on such Distribution
Date that, together with all such Administrative Expenses paid since the
beginning of the calendar year in which such Distribution Date occurs, do not
exceed $5,000.
"Certificate" means the Transferor Certificate.
"Certificateholder" means the Transferor.
"Certificate of Trust" means the Certificate of Trust in the form of
Exhibit B filed for the Trust pursuant to the Business Trust Statute.
4
"Charged-off Amount" means, as of any Distribution Date, an amount
equal to the sum of the Discounted Principal Balances, as of the end of the
related Collection Period, of any Charged-off Leases that became Charged-off
Leases during that related Collection Period.
"Charge-off Rate" means, with respect to any Collection Period, a
percentage equivalent to a fraction, the numerator of which is the product of
(a) 12 and (b) the Aggregate Net Losses with respect to such Collection
Period, and the denominator of which is the quotient of (a) the Aggregate Net
Investment Value as of the last day of such Collection Period plus the
Aggregate Net Investment Value as of the last day of the immediately preceding
Collection Period, divided by (b) 2.
"Charge-off Rate Test" means that determination, made on each
Determination Date, of the average of the Charge-off Rates for the immediately
preceding three Collection Periods (or the November 1998 Collection Period, in
the case of the December 1998 Determination Date, or the November and December
1998 Collection Periods, in the case of the January 1999 Determination Date).
The Charge-off Rate Test will be satisfied if such average is 2.75% or less.
"Class" means all Securities whose form is identical except for
variation in denomination, principal amount or owner.
"Class A Interest Rate Swap Agreement" means that certain interest
rate swap agreement dated as of November [ ], 1998 by and between the Trust
and the Class A Swap Counterparty.
"Class A Net Swap Payment" shall mean, to the extent the following
calculation is positive, an amount equal to (i) one twelfth of the product of
(A) the Class A Notional Amount and (B) the Class A Swap Rate minus (ii) the
product of (A) a fraction, the numerator of which is the actual number of days
from and including the prior Distribution Date to but excluding the related
Distribution Date (or, with respect to the first Deposit Date, the actual
number of days from the date of issuance of the Class A Notes to but excluding
the first Distribution Date) and the denominator of which is 360, (B) the
Class A Notional Amount and (C) One-Month LIBOR with respect to the related
Distribution Date. If the result of the above calculation is either zero or a
negative number, then for purposes of this Agreement, the Class A Net Swap
Payment shall be deemed to be zero.
"Class A Net Swap Receipt" shall mean, to the extent the following
calculation is positive, an amount equal to (i) the product of (A) a fraction,
the numerator of which is the actual number of days from and including the
prior Distribution Date to but excluding the related Distribution Date (or,
with respect to the first Deposit Date, the actual number of days from the
date of issuance of the Class A Notes to but excluding the first Distribution
Date) and the denominator of which is 360, (B) the Class A Notional Amount and
(C) One-Month LIBOR with respect to the related Distribution Date minus (ii)
one twelfth of the product of (A) the Class A Notional Amount and (B) the
Class A Swap Rate. If the result of the above calculation is either zero or a
negative number, then for purposes of this Agreement, the Aggregate Class A
Net Swap Receipt shall be deemed to be zero.
"Class A Notes" means the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes.
"Class A Note Balance" means the sum of the Class A-1 Note Balance,
the Class A-2 Note Balance, Class A-3 Note Balance and the Class A-4 Note
Balance.
"Class A Noteholder" means any Holder of a Class A-1 Note, Class A-2
Note, Class A-3 Note or Class A-4 Note.
"Class A Notional Amount" means the sum of the Class A-1 Notional
Amount, the Class A-2 Notional Amount, the Class A-3 Notional Amount and the
Class A-4 Notional Amount.
5
"Class A Percentage" means the Class A Note Balance immediately after
the Class A-3 Notes have been paid in full as a percentage of the Note Balance
at such time.
"Class A Swap Counterparty" shall mean Xxxxxx Xxxxx Derivative
Products AG, a Swiss share company.
"Class A Swap Rate" means [___] %, or, with respect to the first
Deposit Date, [___] %.
"Class A-1 Additional Loss Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-1 Allocation
Percentage, (ii) the Investor Percentage with respect to Loss Amounts for the
related Collection Period and (iii) the Additional Loss Amount incurred in
respect of such Collection Period.
"Class A-1 Allocation Percentage" means, as of any Distribution Date,
the Class A-1 Note Balance as of the last day of the related Collection Period
as a percentage of the Note Balance as of such last day.
"Class A-1 Charged-off Amount" means, as of any Distribution Date, an
amount equal to the product of (i) the Class A-1 Allocation Percentage, (ii)
the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the Charged-off Amount incurred in respect of such
Collection Period.
"Class A-1 Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-1 Principal Distributable Amount and
the Class A-1 Interest Distributable Amount.
"Class A-1 Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class A-1 Interest
Distributable Amount for such Distribution Date plus any outstanding Class A-1
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class A-1 Interest Carryover Shortfall, to
the extent permitted by law, at the Class A-1 Note Rate from such immediately
preceding Distribution Date to but not including the current Distribution
Date, over (ii) the amount of interest distributed to Class A-1 Noteholders on
such current Distribution Date.
"Class A-1 Interest Distributable Amount" means, with respect to any
Distribution Date, the product of (i) the Class A-1 Note Rate and (ii) the
Class A-1 Note Balance as of the immediately preceding Distribution Date
(after giving effect to changes in the Class A-1 Note Balance made on such
immediately preceding Distribution Date) or, in the case of the first
Distribution Date, the Initial Class A-1 Note Balance.
"Class A-1 Loss Amount" means, with respect to any Distribution Date,
the product of (a) the Class A-1 Allocation Percentage, (b) the Investor
Percentage with regard to Loss Amounts for the related Collection Period, and
(c) the Loss Amount for the related Collection Period.
"Class A-1 Note" means one of the Notes executed by the Owner Trustee
on behalf of the Trust and authenticated by the Indenture Trustee in
substantially the form set forth in Exhibit A to the Indenture.
"Class A-1 Note Balance" shall initially equal the Initial Class A-1
Note Balance and, on any date, shall equal the Initial Class A-1 Note Balance,
reduced by the sum of (i) all amounts distributed to Class A-1 Noteholders and
allocable to principal on or prior to such date and (ii) the amount, if any,
by which (a) the aggregate of all Class A-1 Note Principal Loss Amounts on or
prior to such date exceeds (b) the aggregate of all Class A-1 Note Principal
Loss Amounts reimbursed on or prior to such date.
6
"Class A-1 Note Factor" means, with respect to any Distribution Date,
a seven-digit decimal figure equal to the Class A-1 Note Balance as of the
close of business on such Distribution Date (after giving effect to all
changes in the Class A-1 Note Balance made on that date) divided by the
Initial Class A-1 Note Balance.
"Class A-1 Noteholder" means any Holder of a Class A-1 Note.
"Class A-1 Note Principal Loss Amount" means, with respect to any
Distribution Date, the amount, if any, by which (i) the sum of the Class A-1
Loss Amount for the related Collection Period and any previously unreimbursed
Class A-1 Note Principal Loss Amount exceeds (ii) the amount available to be
distributed in respect of the Class A-1 Notes pursuant to Section 3.03(b)(vii)
or (b)(viii) on such Distribution Date.
"Class A-1 Note Principal Loss Interest Amount" means, with respect
to any Distribution Date, the aggregate amount of accrued and unpaid interest
(at the Class A-1 Note Rate) on the aggregate amount of unreimbursed Class A-1
Note Principal Loss Amounts.
"Class A-1 Note Rate" means One-Month LIBOR plus [___] % calculated
on the basis of the actual number of days from and including the prior
Distribution Date (or in the case of the initial Distribution Date, the
Closing Date) to but excluding the related Distribution Date and a 360-day
year.
"Class A-1 Notional Amount" shall mean, as determined on each Deposit
Date, the Class A-1 Note Balance as of close of business on the preceding
Distribution Date, provided, however, with respect to the first Deposit Date,
the applicable Class A-1 Notional Amount will be equal to the related Initial
Class A-1 Note Balance.
"Class A-1 Principal Distributable Amount" means, with respect to any
Distribution Date related to a Collection Period in the Amortization Period,
the amount (if any) that is distributable to the Class A-1 Noteholders
pursuant to Section 3.03(d).
"Class A-1 Residual Value Loss Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-1 Allocation
Percentage, (ii) the Investor Percentage with respect to Loss Amounts for the
related Collection Period and (iii) the Residual Value Loss Amount incurred in
respect of such Collection Period.
"Class A-2 Additional Loss Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-2 Allocation
Percentage, (ii) the Investor Percentage with respect to Loss Amounts for the
related Collection Period and (iii) the Additional Loss Amount incurred in
respect of such Collection Period.
"Class A-2 Allocation Percentage" means, as of any Distribution Date,
the Class A-2 Note Balance as of the last day of the related Collection Period
as a percentage of the then Note Balance as of such last day.
"Class A-2 Charged-off Amount" means, as of any Distribution Date, an
amount equal to the product of (i) the Class A-2 Allocation Percentage, (ii)
the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the Charged-off Amount incurred in respect of such
Collection Period.
"Class A-2 Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-2 Principal Distributable Amount and
the Class A-2 Interest Distributable Amount.
7
"Class A-2 Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class A-2 Interest
Distributable Amount for such Distribution Date plus any outstanding Class A-2
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class A-2 Interest Carryover Shortfall, to
the extent permitted by law, at the Class A-2 Note Rate from such immediately
preceding Distribution Date to but not including the current Distribution
Date, over (ii) the amount of interest distributed to Class A-2 Noteholders on
such current Distribution Date.
"Class A-2 Interest Distributable Amount" means, with respect to any
Distribution Date, the product of (i) the Class A-2 Note Rate and (ii) the
Class A-2 Note Balance as of the immediately preceding Distribution Date
(after giving effect to changes in the Class A-2 Note Balance made on such
immediately preceding Distribution Date) or, in the case of the first
Distribution Date, the Initial Class A-2 Note Balance.
"Class A-2 Loss Amount" means, with respect to any Distribution Date,
the product of (a) the Class A-2 Allocation Percentage, (b) the Investor
Percentage with regard to Loss Amounts for the related Collection Period, and
(c) the Loss Amount for the related Collection Period.
"Class A-2 Note" means one of the Notes executed by the Owner Trustee
on behalf of the Trust and authenticated by the Indenture Trustee in
substantially the form set forth in Exhibit B to the Indenture.
"Class A-2 Note Balance" shall initially equal the Initial Class A-2
Note Balance and, on any date, shall equal the Initial Class A-2 Note Balance,
reduced by the sum of (i) all amounts distributed to Class A-2 Noteholders and
allocable to principal on or prior to such date and (ii) the amount, if any,
by which (a) the aggregate of all Class A-2 Note Principal Loss Amounts on or
prior to such date exceeds (b) the aggregate of all Class A-2 Note Principal
Loss Amounts reimbursed on or prior to such date.
"Class A-2 Note Factor" means, with respect to any Distribution Date,
a seven-digit decimal figure equal to the Class A-2 Note Balance as of the
close of business on such Distribution Date (after giving effect to all
changes in the Class A-2 Note Balance made on that date) divided by the
Initial Class A-2 Note Balance.
"Class A-2 Noteholder" means any Holder of a Class A-2 Note.
"Class A-2 Note Principal Loss Amount" means, with respect to any
Distribution Date, the amount, if any, by which (i) the sum of the Class A-2
Loss Amount for the related Collection Period and any previously unreimbursed
Class A-2 Note Principal Loss Amount exceeds (ii) the amount available to be
distributed in respect of the Class A-2 Notes pursuant to Section 3.03(b)(vii)
or (b)(viii) on such Distribution Date.
"Class A-2 Note Principal Loss Interest Amount" means, with respect
to any Distribution Date, the aggregate amount of accrued and unpaid interest
(at the Class A-2 Note Rate) on the aggregate amount of unreimbursed Class A-2
Note Principal Loss Amounts.
"Class A-2 Note Rate" means One-Month LIBOR plus [___] % calculated
on the basis of the actual number of days from and including the prior
Distribution Date (or in the case of the initial Distribution Date, the
Closing Date) to but excluding the related Distribution Date and a 360-day
year.
"Class A-2 Notional Amount" shall mean, as determined on each Deposit
Date, the Class A-2 Note Balance as of close of business on the preceding
Distribution Date, provided, however, with respect to the first Deposit Date,
the applicable Class A-2 Notional Amount will be equal to the related Initial
Class A-2 Note Balance.
8
"Class A-2 Principal Distributable Amount" means, with respect to any
Distribution Date related to a Collection Period in the Amortization Period,
the amount (if any) that is distributable to the Class A-2 Noteholders
pursuant to Section 3.03(d).
"Class A-2 Residual Value Loss Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-2 Allocation
Percentage, (ii) the Investor Percentage with respect to Loss Amounts for the
related Collection Period and (iii) the Residual Value Loss Amount incurred in
respect of such Collection Period.
"Class A-3 Additional Loss Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-3 Allocation
Percentage, (ii) the Investor Percentage with respect to Loss Amounts for the
related Collection Period and (iii) the portion of the Additional Loss Amount
incurred in respect of such Collection Period.
"Class A-3 Allocation Percentage" means, as of any Distribution Date,
the Class A-3 Note Balance as of the last day of the related Collection Period
as a percentage of the then Note Balance as of such last day.
"Class A-3 Charged-off Amount" means, as of any Distribution Date, an
amount equal to the product of (i) the Class A-3 Allocation Percentage, (ii)
the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the Charged-off Amount incurred in respect of such
Collection Period.
"Class A-3 Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-3 Principal Distributable Amount and
the Class A-3 Interest Distributable Amount.
"Class A-3 Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class A-3 Interest
Distributable Amount for such Distribution Date plus any outstanding Class A-3
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class A-3 Interest Carryover Shortfall, to
the extent permitted by law, at the Class A-3 Note Rate from such immediately
preceding Distribution Date to but not including the current Distribution
Date, over (ii) the amount of interest distributed to Class A-3 Noteholders on
such current Distribution Date.
"Class A-3 Interest Distributable Amount" means, with respect to any
Distribution Date, the product of (i) the Class A-3 Note Rate and (ii) the
Class A-3 Note Balance as of the immediately preceding Distribution Date
(after giving effect to changes in the Class A-3 Note Balance made on such
immediately preceding Distribution Date) or, in the case of the first
Distribution Date, the Initial Class A-3 Note Balance.
"Class A-3 Loss Amount" means, with respect to any Distribution Date,
the product of (a) the Class A-3 Allocation Percentage, (b) the Investor
Percentage with regard to Loss Amounts for the related Collection Period, and
(c) the Loss Amount for the related Collection Period.
"Class A-3 Note" means one of the Notes executed by the Owner Trustee
on behalf of the Trust and authenticated by the Indenture Trustee in
substantially the form set forth in Exhibit C to the Indenture.
"Class A-3 Note Balance" shall initially equal the Initial Class A-3
Note Balance and, on any date, shall equal the Initial Class A-3 Note Balance,
reduced by the sum of (i) all amounts distributed to Class A-3 Noteholders and
allocable to principal on or prior to such date and (ii) the amount, if any,
by which (a) the aggregate of all Class A-3 Note Principal Loss Amounts on or
prior to such date exceeds (b) the aggregate of all Class A-3 Note Principal
Loss Amounts reimbursed on or prior to such date.
9
"Class A-3 Note Factor" means, with respect to any Distribution Date,
a seven-digit decimal figure equal to the Class A-3 Note Balance as of the
close of business on such Distribution Date (after giving effect to all
changes in the Class A-3 Note Balance made on that date) divided by the
Initial Class A-3 Note Balance.
"Class A-3 Noteholder" means any Holder of a Class A-3 Note.
"Class A-3 Note Principal Loss Amount" means, with respect to any
Distribution Date, the amount, if any, by which (i) the sum of the Class A-3
Loss Amount for the related Collection Period and any previously unreimbursed
Class A-3 Note Principal Loss Amount exceeds (ii) the amount available to be
distributed in respect of the Class A-3 Notes pursuant to Section 3.03(b)(vii)
or (b)(viii) on such Distribution Date.
"Class A-3 Note Principal Loss Interest Amount" means, with respect
to any Distribution Date, the aggregate amount of accrued and unpaid interest
(at the Class A-3 Note Rate) on the aggregate amount of unreimbursed Class A-3
Note Principal Loss Amounts.
"Class A-3 Note Rate" means One-Month LIBOR plus [___] % calculated
on the basis of the actual number of days from and including the prior
Distribution Date (or in the case of the initial Distribution Date, the
Closing Date) to but excluding the related Distribution Date and a 360-day
year.
"Class A-3 Notional Amount" shall mean, as determined on each Deposit
Date, the Class A-3 Note Balance as of close of business on the preceding
Distribution Date, provided, however, with respect to the first Deposit Date,
the applicable Class A-3 Notional Amount will be equal to the related Initial
Class A-3 Note Balance.
"Class A-3 Principal Distributable Amount" means, with respect to any
Distribution Date related to a Collection Period in the Amortization Period,
the amount (if any) that is distributable to the Class A-3 Noteholders
pursuant to Section 3.03(d).
"Class A-3 Residual Value Loss Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-3 Allocation
Percentage, (ii) the Investor Percentage with respect to Loss Amounts for the
related Collection Period and (iii) the Residual Value Loss Amount incurred in
respect of such Collection Period.
"Class A-4 Additional Loss Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-4 Allocation
Percentage, (ii) the Investor Percentage with respect to Loss Amounts for the
related Collection Period and (iii) the Additional Loss Amount incurred in
respect of such Collection Period.
"Class A-4 Allocation Percentage" means, as of any Distribution Date,
the Class A-4 Note Balance as of the last day of the related Collection Period
as a percentage of the then Note Balance as of such last day.
"Class A-4 Charged-off Amount" means, as of any Distribution Date, an
amount equal to the product of (i) the Class A-4 Allocation Percentage, (ii)
the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the Charged-off Amount incurred in respect of such
Collection Period.
"Class A-4 Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-4 Principal Distributable Amount and
the Class A-4 Interest Distributable Amount.
10
"Class A-4 Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class A-4 Interest
Distributable Amount for such Distribution Date plus any outstanding Class A-4
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class A-4 Interest Carryover Shortfall, to
the extent permitted by law, at the Class A-4 Note Rate from such immediately
preceding Distribution Date to but not including the current Distribution
Date, over (ii) the amount of interest distributed to Class A-4 Noteholders on
such current Distribution Date.
"Class A-4 Interest Distributable Amount" means, with respect to any
Distribution Date, the product of (i) the Class A-4 Note Rate and (ii) the
Class A-4 Note Balance as of the immediately preceding Distribution Date
(after giving effect to changes in the Class A-4 Note Balance made on such
immediately preceding Distribution Date) or, in the case of the first
Distribution Date, the Initial Class A-4 Note Balance.
"Class A-4 Loss Amount" means, with respect to any Distribution Date,
the product of (a) the Class A-4 Allocation Percentage, (b) the Investor
Percentage with regard to Loss Amounts for the related Collection Period, and
(c) the Loss Amount for the related Collection Period.
"Class A-4 Note" means one of the Notes executed by the Owner Trustee
on behalf of the Trust and authenticated by the Indenture Trustee in
substantially the form set forth in Exhibit D to the Indenture.
"Class A-4 Note Balance" shall initially equal the Initial Class A-4
Note Balance and, on any date, shall equal the Initial Class A-4 Note Balance,
reduced by the sum of (i) all amounts distributed to Class A-4 Noteholders and
allocable to principal on or prior to such date and (ii) the amount, if any,
by which (a) the aggregate of all Class A-4 Note Principal Loss Amounts on or
prior to such date exceeds (b) the aggregate of all Class A-4 Note Principal
Loss Amounts reimbursed on or prior to such date.
"Class A-4 Note Factor" means, with respect to any Distribution Date,
a seven-digit decimal figure equal to the Class A-4 Note Balance as of the
close of business on such Distribution Date (after giving effect to all
changes in the Class A-4 Note Balance made on that date) divided by the
Initial Class A-4 Note Balance.
"Class A-4 Noteholder" means any Holder of a Class A-4 Note.
"Class A-4 Note Principal Loss Amount" means, with respect to any
Distribution Date, the amount, if any, by which (i) the sum of the Class A-4
Loss Amount for the related Collection Period and any previously unreimbursed
Class A-4 Note Principal Loss Amount exceeds (ii) the amount available to be
distributed in respect of the Class A-4 Notes pursuant to Section 3.03(b)(vii)
or (b)(viii) on such Distribution Date.
"Class A-4 Note Principal Loss Interest Amount" means, with respect
to any Distribution Date, the aggregate amount of accrued and unpaid interest
(at the Class A-4 Note Rate) on the aggregate amount of unreimbursed Class A-4
Note Principal Loss Amounts.
"Class A-4 Note Rate" means One-Month LIBOR plus [___] % calculated
on the basis of the actual number of days from and including the prior
Distribution Date (or in the case of the initial Distribution Date, the
Closing Date) to but excluding the related Distribution Date and a 360-day
year.
"Class A-4 Notional Amount" shall mean, as determined on each Deposit
Date, the Class A-4 Note Balance as of close of business on the preceding
Distribution Date, provided, however, with respect to the first Deposit Date,
the applicable Class A-4 Notional Amount will be equal to the related Initial
Class A-4 Note Balance.
11
"Class A-4 Principal Distributable Amount" means, with respect to any
Distribution Date related to a Collection Period in the Amortization Period,
the amount (if any) that is distributable to the Class A-4 Noteholders
pursuant to Section 3.03(d).
"Class A-4 Residual Value Loss Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-4 Allocation
Percentage, (ii) the Investor Percentage with respect to Loss Amounts for the
related Collection Period and (iii) the Residual Value Loss Amount incurred in
respect of such Collection Period.
"Class B Additional Loss Amount" means, as of any Distribution Date,
an amount equal to the product of (i) the Class B Allocation Percentage, (ii)
the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the Additional Loss Amount incurred in respect of
such Collection Period.
"Class B Allocation Percentage" means, as of any Distribution Date,
the Class B Note Balance as of the last day of the related Collection Period
as a percentage of the then Note Balance as of such last day.
"Class B Charged-Off Amount" means, as of any Distribution Date, an
amount equal to the product of (i) the Class B Allocation Percentage, (ii) the
Investor Percentage with respect to Loss Amounts for the related Collection
Period and (iii) the Charged-off Amount incurred in respect of such Collection
Period.
"Class B Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class B Principal Distributable Amount and
the Class B Interest Distributable Amount.
"Class B Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class B Interest
Distributable Amount for such Distribution Date plus any outstanding Class B
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class B Interest Carryover Shortfall, to the
extent permitted by law, at the Class B Note Rate from such immediately
preceding Distribution Date to but not including the current Distribution Date
over (ii) the amount of interest distributed to Class B Noteholders on such
current Distribution Date.
"Class B Interest Distributable Amount" means, with respect to any
Distribution Date, the product of (i) one-twelfth of the Class B Note Rate or,
in the case of the first Distribution Date, one-sixth of such amount, and (ii)
the Class B Note Balance as of the immediately preceding Distribution Date
(after giving effect to changes in the Class B Note Balance made on such
immediately preceding Distribution Date) or, in the case of the first
Distribution Date, the Initial Class B Note Balance.
"Class B Loss Amount" means, with respect to any Distribution Date,
the product of (a) the Class B Allocation Percentage, (b) the Investor
Percentage with regard to Loss Amounts for the related Collection Period, and
(c) the Loss Amount for the related Collection Period.
"Class B Note" means any one of the Notes executed by the Owner
Trustee on behalf of the Trust and authenticated by the Indenture Trustee in
substantially the form set forth in Exhibit E to the Indenture.
"Class B Note Balance" shall initially equal the Initial Class B Note
Balance and, on any date, shall equal the Initial Class B Note Balance,
reduced by the sum of (i) all amounts distributed to Class B Noteholders and
allocable to principal on or prior to such date, (ii) the amount, if any, by
which (a) the aggregate of all Class B Note Principal Loss Amounts on or prior
to such date exceeds (b) the aggregate of all Class B Note Principal Loss
Amounts reimbursed on or prior to such date, and (iii) the amount, if
12
any, by which (a) the aggregate of all Class B Note Principal Carryover
Shortfalls on or prior to such Distribution Date exceeds (b) the aggregate of
all Class B Note Principal Carryover Shortfalls reimbursed on or prior to such
date.
"Class B Note Factor" means, with respect to any Distribution Date, a
seven-digit decimal figure equal to the Class B Note Balance as of the close
of business on such Distribution Date (after giving effect to all changes in
the Class B Note Balance made on that date) divided by the Initial Class B
Note Balance.
"Class B Note Principal Carryover Shortfall" means, with respect to
any Distribution Date, the amount that otherwise would have been made
available for reinvestment in additional 1998-A SUBI Assets pursuant to
Section 11.02 of the 1998-A SUBI Supplement (if on a Distribution Date related
to a Collection Period in the Revolving Period) or distributed to the Class B
Noteholders (if on a Distribution Date related to a Collection Period in the
Amortization Period), in each case in respect of Principal Collections
pursuant to Section 3.03(d), but instead is applied as set forth in clauses
(iii), (vii) and (viii) of Section 3.03(b) pursuant to Section 3.03(e).
"Class B Note Principal Carryover Shortfall Interest Amount" means,
with respect to any Distribution Date, the aggregate amount of accrued and
compounded interest (at the Class B Note Rate) on the aggregate amount of
unreimbursed Class B Note Principal Carryover Shortfall as of the immediately
preceding Distribution Date.
"Class B Note Principal Loss Amount" means, with respect to any
Distribution Date, the amount, if any, by which (i) the sum of the Class B
Loss Amount for the related Collection Period and any previously unreimbursed
Class B Note Principal Loss Amount exceeds (ii) the amount available to be
distributed pursuant to Section 3.03(b)(x) or (b)(xi) on such Distribution
Date.
"Class B Note Principal Loss Interest Amount" means, with respect to
any Distribution Date, the aggregate amount of accrued and unpaid interest (at
the Class B Note Rate) on the aggregate amount of unreimbursed Class B Note
Principal Loss Amounts.
"Class B Note Rate" means [___]% per annum.
"Class B Noteholder" means any Holder of a Class B Note.
"Class B Percentage" means the Class B Note Balance immediately after
the Class A-3 Notes have been paid in full as a percentage of the Note Balance
at such time.
"Class B Principal Distributable Amount" means, with respect to any
Distribution Date related to a Collection Period in the Amortization Period,
the amount (if any) that is distributable to the Class B Noteholders pursuant
to Section 3.03(d).
"Class B Residual Value Loss Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class B Allocation Percentage,
(ii) the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the portion of the Residual Value Loss Amount
incurred in respect of such Collection Period.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
13
"Closing Date" means November [__], 1998.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Period" shall have the meaning set forth in the 1998-A
SUBI Supplement.
"Commission" means the Securities and Exchange Commission, and any
successor thereto.
"Corporate Trust Office" means, (a) with respect to the Indenture
Trustee, as set forth in the Indenture, and (b) with respect to the Owner
Trustee, the Corporate Trust Department of the Owner Trustee located at 000
Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, or at such other
address as the Owner Trustee may designate from time to time by notice to the
Indenture Trustee, the Transferor, the Servicer and the Trust, or the
principal corporate trust office of any successor Owner Trustee.
"Covered Loss Amounts" means, for any Distribution Date, the lesser
of (i) the Investor Percentage of Loss Amounts for such Distribution Date and
(ii) amounts available for distribution described in Section 3.03(b) hereof
remaining after the application of clauses (i) through (vi) thereof.
"Current Lease" means each 1998-A Lease that is not a Charged-off
Lease, a Matured Lease, a Liquidated Lease or an Additional Loss Lease.
"Definitive Notes" shall have the meaning specified in Section 2.10
of the Indenture.
"Delinquency Rate" means, with respect to any Collection Period, the
percentage equivalent to a fraction, the numerator of which is the number of
outstanding 1998-A Leases as to which, as of the last day of such Collection
Period, all or any part of a Monthly Lease Payment in excess of $40 is unpaid
(including without limitation because of a check being returned for
insufficient funds) 61 days or more after its Due Date (other than a 1998-A
Lease as to which an extension has been granted with respect to such Due Date
by the Servicer pursuant to clause (ii) of Section 2.02(b) of the Servicing
Agreement and Section 9.02(a) of the 1998-A Servicing Supplement), whether or
not (a) the related 1998-A Leased Vehicle has been repossessed (or the process
of repossession has been commenced) but has not yet been sold or otherwise
disposed of during such Collection Period, or (b) the related Obligor is the
subject of bankruptcy or similar proceedings, and the denominator of which is
the aggregate number of Current Leases on the last day of such Collection
Period.
"Delinquency Rate Test" means that determination, made on each
Determination Date, of the average of the Delinquency Rates for the three
immediately preceding Collection Periods (or the November 1998 Collection
Period, in the case of the December 1998 Determination Date, or the November
and December 1998 Collection Periods, in the case of the January 1999
Determination Date). The Delinquency Rate Test will be satisfied if such
average is 1.75% or less.
"Deposit Date" shall have the meaning set forth in the 1998-A SUBI
Supplement.
"Designated Maturity" shall mean, for any Determination Date, one
month.
"Determination Date" means, with respect to any Distribution Date,
the second Business Day prior to such Distribution Date.
"Distribution Account" means the account or accounts designated as
such and established and maintained pursuant to Section 3.01.
14
"Distribution Date" means, with respect to a Collection Period, the
fifteenth day of the following month, or if that day is not a Business Day,
the next Business Day, beginning with December 15, 1998.
"Downgrade Reserve Fund Formula" means the greatest amount that any
Rating Agency shall require for calculation of the Reserve Fund Cash
Requirement in order to maintain its then-current rating on any Class of
Notes.
"Downgrade Reserve Fund Supplemental Requirement" means the greatest
amount that any Rating Agency shall require to be deposited into the Reserve
Fund in order to maintain its then-current ratings on any Class of Notes.
"Downgrade Trigger Event" means that the RV Insurer's claims paying
ability is downgraded to "Aa3" or lower by Xxxxx'x, below "AAA" by Standard &
Poors or (if the RV Insurer's claims paying ability is rated by Fitch) below
"AAA" by Fitch.
"Early Amortization Event" has the meaning set forth in Section 8.01.
"Early Termination Amount" means, as of any Distribution Date, an
amount equal to the sum of the Discounted Principal Balances, as of the end of
the related Collection Period, of any Early Termination Leases that became
Early Termination Leases during that related Collection Period, such
Discounted Principal Balances calculated without reference to payments
received by the Servicer in the form of non-cash items.
"Entitlement Holder" has the meaning set forth in Section 8-102(a)(7)
of the UCC.
"Entitlement Orders" has the meaning set forth in Section 8-102(a)(8)
of the UCC.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Compliance Test" means the timely, true and accurate
certification, on or before each Determination Date, by the Servicer to the
Indenture Trustee and each Rating Agency to the effect set forth in Section
10.03(c) of the 1998-A Servicing Supplement.
"Excess Collections" means, with respect to any Distribution Date,
the remaining amount on deposit in the Distribution Account in respect of such
Distribution Date after all distributions pursuant to Section 3.03(b) have
been made, net of any amount required to maintain the Distribution Account in
good standing.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Final Scheduled Maturity Date" means the November [2004]
Distribution Date.
"Financial Intermediary" means a financial intermediary, as such term
is defined in Section 8-313(4) of the UCC.
"Fitch" means Fitch IBCA, Inc., and its successors.
"Flow-Through Entity" has the meaning set forth in Section 4.03(a).
"Holder" of a Note or "Noteholder" means the Person in whose name
such Note is registered in the Note Register, except that, solely for the
purposes of giving any consent, waiver, request or demand pursuant to this
Agreement, the interest evidenced by any Note registered in the name of the
Transferor, ALF LP or WOFCO, or any Person controlling, controlled by or under
common control with the
15
Transferor, ALF LP or WOFCO, shall not be taken into account in determining
whether the requisite percentage necessary to effect any such consent, waiver,
request or demand shall have been obtained. "Holder" of the Transferor
Certificate means the Transferor.
"Indenture" has the meaning set forth in Recital H.
"Indenture Event of Default" means an "Event of Default" as defined
in the Indenture.
"Indenture Trustee" means the Person acting as the Indenture Trustee
under the Indenture, its successor in interest, and any successor trustee
appointed.
"Independent Director" means a director of the general partner of the
Transferor who shall at no time be (i) a director, officer, employee or former
employee of any Affiliate of the Transferor, (ii) a natural person related to
any director, officer, employee or former employee of any Affiliate, (iii) a
holder (directly or indirectly) of any voting securities of any Affiliate, or
(iv) a natural person related to a holder (directly or indirectly) of any
voting securities of any Affiliate. For these purposes, "Affiliate" shall mean
any entity other than the Transferor or any similarly organized special
purpose finance subsidiary of an Affiliate (i) which owns beneficially,
directly or indirectly, more than 10% of the outstanding shares of the common
stock or partnership interests of the Transferor, (ii) which is in control of
the Transferor, as currently defined under Section 230.405 of the Rules and
Regulations of the Commission, 17 C.F.R. Section 230.405, (iii) of which 10% or
more of the outstanding shares of its common stock or partnership interests
are owned beneficially, directly or indirectly, by any entity described in
clause (i) or (ii) above, or (iv) which is controlled by an entity described
in clause (i) or (ii) above, as currently defined under Section 230.405 of the
Rules and Regulations of the Commission, 17 C.F.R. Section 230.405.
"Indorsement" has the meaning set forth in Section 8-304 of the UCC.
"Initial Class A Note Balance" means the sum of the Initial Class A-1
Note Balance, the Initial Class A-2 Note Balance, the Initial Class A-3 Note
Balance and the Initial Class A-4 Note Balance.
"Initial Class A-1 Note Balance" means $[___].
"Initial Class A-2 Note Balance" means $[___].
"Initial Class A-3 Note Balance" means $[___].
"Initial Class A-4 Note Balance" means $[___].
"Initial Class B Note Balance" means $[___].
"Initial Note Balance" means the sum of the Initial Class A Note
Balance and the Initial Class B Note Balance.
"Insurance Policy" means, with respect to a 1998-A Lease, 1998-A
Leased Vehicle or Obligor under a 1998-A Lease, any policy of comprehensive,
collision, public liability, physical damage, personal liability, credit
health or accident, credit life or employment insurance, or any other form of
insurance.
"Insured Residual Value Loss Amount" means, as of any Distribution
Date, the lesser of: (i) the product of (A) the Investor Percentage with
respect to Loss Amounts for the related Collection Period, and (B) the
Residual Value Loss Amount incurred during such Collection Period; and (ii)
the shortfall if any, described in clause (ii) of Section 3.03(e).
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
16
"Investor Percentage" means, with respect to any Collection Period,
(a) as used with respect to Interest Collections and Loss
Amounts, the percentage equivalent of a fraction (not to exceed 100%), the
numerator of which is the Note Balance as of the last day of the immediately
preceding Collection Period (or, in the case of the first Collection Period,
the Initial Note Balance), and the denominator of which is the Aggregate Net
Investment Value as of the last day of the immediately preceding Collection
Period (or, in the case of the first Collection Period, the Initial Cutoff
Date); and
(b) as used with respect to Principal Collections allocable
to the 1998-A SUBI Interest, the percentage equivalent of a fraction (not to
exceed 100%), the numerator of which is the Note Balance and the denominator
of which is the Aggregate Net Investment Value, each as of the last day of the
last full Collection Period preceding the first to occur of the Amortization
Date or any Early Amortization Event.
"Liquidated Lease" means a 1998-A Lease that (a) has been the subject
of a Prepayment in full, or (b) has been paid in full, regardless of whether
all or any part of such payment has been made by the Obligor under the related
1998-A Lease, the Servicer pursuant to the Servicing Agreement or 1998-A
Servicing Supplement, an insurer pursuant to an Insurance Policy or the
Residual Value Insurance Policy or otherwise.
"Liquidation Expenses" means reasonable out-of-pocket expenses
incurred by the Servicer in connection with the realization of the full
amounts due or to become due under any 1998-A Lease, including expenses
incurred in connection with the repossession of any 1998-A Leased Vehicle, the
sale or other disposition of a 1998-A Leased Vehicle, whether upon
repossession or upon return of a 1998-A Leased Vehicle related to a Matured
Lease, any collection effort (whether or not resulting in a lawsuit against
the Obligor under such 1998-A Lease) or any application for Insurance
Proceeds.
"Loss Amount" means, with respect to any Distribution Date, an amount
equal to the sum of the Charged-off Amount, the Residual Value Loss Amount and
the Additional Loss Amount, in each case for the related Collection Period.
"Moody's" means Xxxxx'x Investors Service, Inc., and its successors.
"1998-A Servicing Supplement" has the meaning set forth in Recital E.
"1998-A SUBI" has the meaning set forth in Recital D.
"1998-A SUBI Certificate" has the meaning set forth in Recital D.
"1998-A SUBI Interest" has the meaning set forth in Section 2.02.
"1998-A SUBI Portfolio" has the meaning set forth in Recital D.
"1998-A SUBI Supplement" has the meaning set forth in Recital D.
"Note Balance" initially means the Initial Note Balance and, as of
any date, means the sum of the Class A Note Balance and the Class B Note
Balance as of the close of business on such date, after giving effect to any
changes therein on such date.
"Noteholder" means the Holder of a Note.
17
"Note Owner" means, with respect to a Book-Entry Note, the Person who
is the owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly or as an indirect participant in accordance with the
rules of such Clearing Agency) and shall mean, with respect to a Definitive
Note, the related Noteholder.
"Note Rate" means the Class A-1 Note Rate, the Class A-2 Note Rate,
the Class A-3 Note Rate, the Class A-4 Note Rate or the Class B Note Rate, as
the case may be.
"Note Register" means the register maintained pursuant to the
Indenture.
"Notice of Adverse Claim" has the meaning set forth in Section
8-102(a)(1) and 8-105 of the UCC.
"Officer's Certificate" means a certificate signed by the President,
any Vice President, the Treasurer or any Assistant Treasurer, the Secretary or
any Assistant Secretary of the general partner of the Transferor or the
Servicer, as the case may be, and delivered to the Indenture Trustee or the
Owner Trustee, as applicable.
"One-Month LIBOR" means, as of any Determination Date, the rate for
deposits in U.S. Dollars for a period of the Designated Maturity (commencing
on the previous Distribution Date) which appears on the Telerate page 3750 as
of 11:00 a.m., London time, on such date. If such rate does not appear on
Telerate Page 3750, the rate for that day will be determined on the basis of
the rates at which deposits in U.S. Dollars are offered by the Reference Banks
at approximately 11:00 a.m., London time, on that day to prime banks in the
London interbank market for a period of the Designated Maturity (commencing on
the previous Distribution Date). The Servicer will request the principal
London office of each of the References Banks to provide a quotation of its
rate. If at least two such quotations are provided, the rate for that day will
be the arithmetic mean of the quotations. If fewer than two quotations are
provided as requested, the rate for that day will be the arithmetic mean of
the rates quoted by major banks in New York City, selected by the Servicer, at
approximately 11:00 a.m., New York City time, on that day for loans in U.S.
Dollars to leading European banks for a period of the Designated Maturity
(commencing on the previous Distribution Date).
"Opinion of Counsel" means a written opinion of counsel (who, in the
case of counsel to the Transferor or the Servicer, may be an employee of or
outside counsel to the Transferor or the Servicer), which counsel, in the case
of an opinion delivered to the Indenture Trustee or the Owner Trustee,
respectively, shall be reasonably acceptable to such Trustee.
"Origination Trust" has the meaning set forth in Recital A.
"Origination Trust Agreement" has the meaning set forth in Recital A.
"Origination Trustee" has the meaning set forth in Recital A.
"Outstanding Advances" means, with respect to a Distribution Date,
the sum of all Advances made as of or prior to such date minus all payments or
collections as of or prior to such date that are specified in Section 9.02(g)
of the 1998-A Servicing Supplement as applied to reimburse such Advance as are
unreimbursed or are Nonrecoverable Advances.
"Owner Trustee" means the Person acting not in its individual
capacity but solely as Owner Trustee on behalf of the Trust under this
Agreement, its successor in interest, and any successor trustee appointed
pursuant to Section 6.08.
18
"Percentage Interest" means, as to any Note, the percentage obtained
by dividing the outstanding principal balance of such Note by the Note Balance
or by the Class A Note Balance, the Class A-1 Note Balance, the Class A-2 Note
Balance, the Class A-3 Note Balance, the Class A-4 Note Balance or the Class B
Note Balance, as the context may require; provided, however, that where the
Percentage Interest is relevant in determining whether the vote of the
requisite percentage of Noteholders necessary to effect any consent, waiver,
request or demand shall have been obtained, the aggregate Percentage Interest
shall be deemed to be reduced by the amount equal to the Percentage Interest
(without giving effect to this provision) represented by the interests
evidenced by any such Note that is registered in the name of the Transferor,
WOFCO or any Person controlling, controlled by or under common control with
the Transferor or WOFCO.
"Permitted Investments" means any one or more of the following
instruments, obligations or securities, in each case with a remaining term to
maturity of no more than one year:
(a)(i) direct obligations of, and obligations guaranteed as
to full and timely payment of principal and interest by, the United States or
any agency or instrumentality of the United States the obligations of which
are backed by the full faith and credit of the United States (other than the
Government National Mortgage Association), and (ii) direct obligations of, or
obligations fully guaranteed by, the Federal National Mortgage Association or
any State then rated with the highest available credit rating of Moody's,
Standard & Poor's and (if rated by Fitch) Fitch, for such obligations, which
obligations are, at the time of investment, otherwise acceptable to each
Rating Agency for securities having a rating at least equivalent to the rating
of the Class A Notes at the Closing Date;
(b) certificates of deposit, demand or time deposits of,
bankers' acceptances issued by, or federal funds sold by any depository
institution or trust company (including the Indenture Trustee or Owner
Trustee) incorporated under the laws of the United States or any State and
subject to supervision and examination by federal and/or State banking
authorities and the deposits of which are fully insured by the Federal Deposit
Insurance Corporation, so long as at the time of such investment or
contractual commitment providing for such investment either such depository
institution or trust company has the Required Rating or the Indenture Trustee
shall have received a letter from each Rating Agency to the effect that such
investment would not result in the qualification, downgrading or withdrawal of
the ratings then assigned to any Rated Securities;
(c) repurchase obligations held by the Indenture Trustee
that are acceptable to the Indenture Trustee with respect to (i) any security
described in clause (a) above or (e) below, or (ii) any other security issued
or guaranteed by any agency or instrumentality of the United States, in either
case entered into with a federal agency or depository institution or trust
company (including the Indenture Trustee) acting as principal, whose
obligations having the same maturity as that of the repurchase agreement would
be Permitted Investments under clause (b) above; provided, however, that
repurchase obligations entered into with any particular depository institution
or trust company (including the Indenture Trustee or Owner Trustee) will not
be Permitted Investments to the extent that the aggregate principal amount of
such repurchase obligations with such depository institution or trust company
held by the Indenture Trustee on behalf of the Trust shall exceed 10% of
either the Aggregate Net Investment Value or the aggregate unpaid principal
balance or face amount, as the case may be, of all Permitted Investments held
by the Indenture Trustee on behalf of the Trust;
(d) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States or any
State so long as at the time of such investment or contractual commitment
providing for such investment either the long-term, unsecured debt of such
corporation has the highest available rating from Moody's, Standard & Poor's
and (if rated by Fitch) Fitch, or the Indenture Trustee shall have received a
letter from each Rating Agency to the effect that such investment would not
result in the qualification, downgrading or withdrawal of the ratings then
assigned to any Rated Securities, or commercial paper or other short-term debt
having the Required
19
Rating; provided, however, that any such commercial paper or other short-term
debt may have a remaining term to maturity of no longer than 30 days after the
date of such investment or contractual commitment providing for such
investment, and that securities issued by any particular corporation will not
be Permitted Investments to the extent that investment therein will cause the
then outstanding principal amount or face amount, as the case may be, of
securities issued by such corporation and held by the Indenture Trustee on
behalf of the Trust to exceed 10% of either the Aggregate Net Investment Value
or the aggregate unpaid principal balance or face amount, as the case may be,
of all Permitted Investments held by the Indenture Trustee on behalf of the
Trust;
(e) interests in any open-end or closed-end management type
investment company or investment trust (i) registered under the Investment
Company Act, the portfolio of which is limited to the obligations of, or
guaranteed by, the United States and to agreements to repurchase such
obligations, which agreements, with respect to principal and interest, are at
least 100% collateralized by such obligations marked to market on a daily
basis and the investment company or investment trust shall take delivery of
such obligations either directly or through an independent custodian
designated in accordance with the Investment Company Act and (ii) acceptable
to each Rating Agency (as approved in writing by each Rating Agency) as
collateral for securities having ratings equivalent to the ratings of the
Rated Securities on the Closing Date;
(f) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation (as approved in writing by each Rating
Agency) as will not result in the qualification, downgrading or withdrawal of
the ratings then assigned to any Rated Securities by each Rating Agency;
(g) investments in Permitted Investments maintained in
"sweep accounts," short-term asset management accounts and the like utilized
for the investment, on an overnight basis, of residual balances in investment
accounts maintained at the Indenture Trustee or any other depository
institution or trust company organized under the laws of the United States or
any state that is a member of the Federal Deposit Insurance Corporation, the
short-term debt of which has the highest available credit rating of Moody's,
Standard & Poor's and (if rated by Fitch) Fitch; provided, however, that any
such account must be maintained with an institution meeting the requirements
of Section 3.01 applicable to the Distribution Account;
(h) guaranteed investment contracts entered into with any
financial institution having a final maturity of not more than one month from
the date of acquisition, the short-term debt securities of which institution
have the Required Rating;
(i) funds classified as money market funds or invested in
money market instruments consisting of: U.S. Treasury bills, other obligations
issued or guaranteed by the U.S. government, its agencies or
instrumentalities; certificates of deposit; banker's acceptances; and
commercial paper (including variable master demand notes); provided, however,
that the fund or the investment in the fund shall be rated with the highest
available credit rating of Moody's, Standard & Poor's and (if rated by Fitch)
Fitch, and redemptions shall be permitted on a daily or next business day
basis; and
(j) such other investments acceptable to each Rating Agency
(as approved in writing by each Rating Agency) as will not result in the
qualification, downgrading or withdrawal of the ratings then assigned to any
Rated Securities by such Rating Agency.
Notwithstanding anything to the contrary contained in the foregoing
definition:
(a) no Permitted Investment may be purchased at a premium;
20
(b) any of the foregoing which constitutes a certificated security
shall not be considered a Permitted Investment unless
(i) in the case of a certificated security that is
in bearer form, (A) the Indenture Trustee acquires physical
possession of such certificated security, or (B) a person, other than
a Securities Intermediary, acquires possession of such certificated
security on behalf of the Indenture Trustee; and
(ii) in the case of a certificated security that is
in registered form, (A)(1) the Indenture Trustee acquires physical
possession of such certificated security, (2) a person, other than a
Securities Intermediary, acquires possession of such certificated
security on behalf of the Indenture Trustee, or (3) a Securities
Intermediary acting on behalf of the Indenture Trustee acquires
possession of such certificated security and such certificated
security has been specially indorsed to the Indenture Trustee, and
(B) (1) such certificated security is indorsed to the Indenture
Trustee or in blank by an effective Indorsement, or (2) such
certificated security is registered in the name of the Indenture
Trustee;
(c) any of the foregoing that constitutes an uncertificated
security shall not be considered a Permitted Investment unless (A) the
Indenture Trustee is registered by the issuer as the owner thereof, (B) a
person, other than a Securities Intermediary, becomes the registered owner of
such uncertificated security on behalf of the Indenture Trustee, or (C) the
issuer of such uncertificated security agrees that it will comply with the
instructions originated by the Indenture Trustee without further consent by
any registered owner of such uncertificated security;
(d) any of the foregoing that constitutes a Security
Entitlement shall not be considered a Permitted Investment unless (A) the
Indenture Trustee becomes the Entitlement Holder thereof, or (B) the
Securities Intermediary has agreed to comply with the Entitlement Orders
originated by the Indenture Trustee without further consent by the Entitlement
Holder; and
(e) any of the foregoing shall not constitute a Permitted
Investment unless the Indenture Trustee (A) has given value, and (B) does not
have Notice of an Adverse Claim.
For purposes of this definition, any reference to the highest
available credit rating of an obligation shall mean the highest available
credit rating for such obligation (excluding any "+" signs associated with
such rating), or such lower credit rating (as approved in writing by each
Rating Agency) as will not result in the qualification, downgrading or
withdrawal of the rating then assigned to any Rated Securities by such Rating
Agency.
"Rated Securities" means each Class of Securities that has been rated
by a Rating Agency at the request of the Transferor.
"Rating Agency" means each of Moody's, Standard & Poor's and Fitch
and any other nationally recognized statistical rating agency, but only if it
has rated any Class of Notes as of the Closing Date at the request of the
Transferor and continues to do so.
"Reallocation Deposit Amount" means any amount required to be
deposited by the Servicer into the 1998-A SUBI Collection Account pursuant to
the last sentence of Section 8.03(a) of the 1998-A Servicing Supplement.
"Record Date" means, with respect to each Distribution Date, (i) in
the case of the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes or
the Class A-4 Notes, the calendar day immediately preceding such Distribution
Date (or, if Definitive Notes have been issued, the last day of the
21
immediately preceding calendar month) and (ii) in the case of the Class B
Notes, the last day of the calendar month immediately preceding the month in
which such Distribution Date occurs.
"Reference Banks" means four major banks in the London interbank
market selected by the Servicer.
"Required Amount" means, as of any Deposit Date, the lesser of: (a)
the excess of (i) the sum of any anticipated amounts to be payable as set
forth in clauses (i) through (v) and (vii) through (xii) of Section 3.03(b)
with respect to the related Distribution Date (plus those amounts included in
clauses (a) through (c) of the definition of "Interest Collections" in the
1998-A SUBI Supplement), over (ii) the sum of (A) the product of (x) the
Investor Percentage with respect to Interest Collections and (y) the Interest
Collections collected during or received with respect to the related
Collection Period (plus in the case of section 3.03(b)(ii) the Class A Net
Swap Receipt for the related Distribution Date), (B) any Transferor Amounts
for the related Distribution Date applied pursuant to Section 3.03(e)(i), and
(C) the proceeds of any claim under the Residual Value Insurance Policy
pursuant to Section 9.10(b) of the 1998-A Servicing Supplement, as applied
pursuant to clause (ii) of Section 3.03(e); and (b) the total amount on
deposit in the Reserve Fund after all deposits thereto pursuant to clause (vi)
of Section 3.03(b).
"Required Rating" means a rating on commercial paper or other short
term unsecured debt obligations of Prime-1 by Moody's so long as Xxxxx'x is a
Rating Agency, A-1 by Standard & Poor's so long as Standard & Poor's is a
Rating Agency, and if such commercial paper or short term unsecured debt
obligations are rated by Fitch, at least F-1 by Fitch so long as Fitch is a
Rating Agency; and any requirement that deposits or debt obligations have the
"Required Rating" shall mean that such deposits or debt obligations have the
foregoing required ratings from Moody's, Standard & Poor's and (if rated by
Fitch) Fitch.
"Reserve Fund" means the account designated as such and established
and maintained pursuant to Section 3.04.
"Reserve Fund Cash Requirement" means with respect to any
Distribution Date the maximum sum of money required to be on deposit in the
Reserve Fund at any one time and shall be calculated as follows: (a) if a RV
Insurer Trigger Event or Downgrade Trigger Event shall have occurred and be
continuing, (i) if only one of the RV Insurer Trigger Event or Downgrade
Trigger Event shall have occurred and be continuing (and, with respect to a
Downgrade Trigger Event, the 60 day period set forth in the fourth sentence of
Section 3.04(b) has elapsed and the Transferor has elected to comply with the
requirements of clause (ii) thereof rather than clause (i)), then in
accordance with the RV Insurer Trigger Event Reserve Fund Formula or Downgrade
Reserve Fund Formula, as applicable, or (ii) if both the RV Insurer Trigger
Event and the Downgrade Trigger Event shall have occurred and be continuing
(and, with respect to a Downgrade Trigger Event, the 60 day period set forth
in the fourth sentence of Section 3.04(b) has elapsed and the Transferor has
elected to comply with the requirements of clause (ii) thereof rather than
clause (i)), then in accordance with the greater of the RV Insurer Reserve
Fund Formula or Downgrade Reserve Fund Formula from time to time; or (b) if
the ERISA Compliance Test is satisfied as of such Distribution Date and no RV
Insurer Trigger Event or Downgrade Trigger Event shall have occurred and be
continuing, (i) if all applicable Reserve Fund Tests are satisfied as of the
related Determination Date, in accordance with the Base Reserve Fund Formula,
or (ii) if any Reserve Fund Test is unsatisfied as of any Distribution Date,
in accordance with the Alternate Reserve Fund Formula.
"Reserve Fund Deficiency" means, as of any Deposit Date, the excess,
if any, of (a) the sum of any Required Amount (considered without regard to
clause (b) of the definition thereof) and any other amounts payable out of the
Reserve Fund pursuant hereto on such Deposit Date or the related Distribution
Date, over (b) the total amount on deposit in the Reserve Fund, prior to any
deposit therein by, or on behalf of, the Transferor pursuant to Section
3.04(b).
22
"Reserve Fund Initial Deposit" means $[___].
"Reserve Fund Test" means either of the Charge-off Rate Test or the
Delinquency Rate Test.
"Reserve Fund Supplemental Requirement" means, as of any Deposit Date
on which there is a Reserve Fund Deficiency, the lesser of (a) such Reserve
Fund Deficiency and (b) $[___] less the aggregate of all amounts previously
deposited by or on behalf of the Transferor into the Reserve Fund to satisfy a
Reserve Fund Deficiency.
"Residual Value Insurance Policy" means that certain Residual Value
Insurance Policy number [___] issued effective November [ ], 1998 by the RV
Insurer, in favor of the Servicer, the Transferor, the Indenture Trustee, the
Owner Trustee, the Origination Trustee and ALF LP.
"Residual Value Loss Amount" means, as of any Distribution Date, the
sum of the following: (a) the Booked Residual Values of all 1998-A Leased
Vehicles included in Matured Leased Vehicle Inventory as of the last day of
the related Collection Period but which as of such day had remained unsold and
not otherwise disposed of by the Servicer for at least two full Collection
Periods; (b) any excess of the sum of the Booked Residual Values of all
Matured Vehicles sold or otherwise disposed of from Matured Leased Vehicle
Inventory during the related Collection Period over Net Matured Vehicle
Proceeds; and (c) any Early Termination Amount for the related Collection
Period.
"Responsible Officer" means an officer of the Owner Trustee or
Indenture Trustee, as applicable, assigned to the applicable Corporate Trust
Office, including any Vice President, any trust officer or any other officer
performing functions similar to those performed by the persons who at the time
shall be such officers, and any other officer of the Owner Trustee or
Indenture Trustee, as applicable, to whom a matter is referred because of his
or her knowledge of and familiarity with the particular subject.
"RV Insurer" means Federal Insurance Company, an Indiana stock
insurance company.
"RV Insurer Reserve Fund Supplemental Requirement" means, at any
time, the difference between (i) the greater of (A) the Reserve Fund Initial
Deposit and (B) the amount then on deposit in the Reserve Fund, and (ii)
$[___].
"RV Insurer Trigger Event" means any of the following:
(a) The RV Insurer shall file a petition commencing a
voluntary case under any chapter of the Federal bankruptcy laws; or the RV
Insurer shall file a petition or answer or consent seeking reorganization,
arrangement, adjustment, or composition under any other similar applicable
Federal law, or shall consent to the filing of any such petition, answer, or
consent; or the RV Insurer shall appoint, or consent to the appointment of a
custodian, receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of it or of any substantial part
of its property, or shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts generally as they become
due;
(b) any order for relief against the RV Insurer shall have
been entered by a court having jurisdiction in the premises under any chapter
of the Federal bankruptcy laws; or a decree or order by a court having
jurisdiction in the premises shall have been entered approving as properly
filed a petition seeking reorganization, arrangement, adjustment, or
composition of the RV Insurer under any other similar applicable Federal law;
or a decree or order of a court having jurisdiction in the premises for the
appointment of a custodian, receiver, liquidator, trustee, assignee,
sequestrator or other similar official in bankruptcy, receivership or
insolvency of the RV Insurer or of any substantial part of its property, or
for the winding up or liquidation of its affairs, shall have been entered; or
23
(c) the Residual Value Insurance Policy shall have been
declared void or unenforceable by a court of competent jurisdiction in a final
judgment as to which the time for noting an appeal has expired and all appeals
have been decided;
in each case without: (i) one or more policies with substantially
similar coverage and provisions to the Residual Value Insurance Policy having
been issued by an insurer acceptable to each Rating Agency (as evidenced by
confirmation (written or oral) from each to the effect that such change would
not result in its then-current rating of any Rated Securities being qualified,
reduced or withdrawn), provided that the Origination Trustee, the Owner
Trustee and the Indenture Trustee shall at all times have the same rights with
respect to any replacement policy as with respect to the original policy; or
(ii) an alternative mechanism to support the Booked Residual Values of the
1998-A Leased Vehicles having been approved in accordance with the procedures
set forth in Section 9.01 for the amendment hereof.
"RV Insurer Trigger Event Reserve Fund Formula" means $[___].
"Schedule of Leases and Leased Vehicles" means the schedule of 1998-A
Leases and 1998-A Leased Vehicles as such schedule shall be amended and
updated from time to time.
"Securities" means the Notes and the Transferor Certificate.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Intermediary" has the meaning set forth in Section
8-102(a)(14) of the UCC.
"Security Entitlement" has the meaning set forth in Section
8-102(a)(17) of the UCC.
"Servicer" means WOFCO, in its capacity as servicer of the 1998-A
Leases and 1998-A Leased Vehicles, and each successor thereto (in the same
capacity) appointed pursuant to Sections 2.10 of the Servicing Agreement and
9.11 of the 1998-A Servicing Supplement, respectively.
"Servicer's Certificate" means an Officer's Certificate of the
Servicer completed and executed pursuant to Section 10.01(b) of the 1998-A
Servicing Supplement.
"Servicing Agreement" has the meaning set forth in Recital C.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc., and its successors.
"State" means any state of the United States, the District of
Columbia and the Commonwealth of Puerto Rico.
"SUBI Certificate" has the meaning set forth in Recital D.
"SUBI Certificate Agreement" has the meaning set forth in Recital F.
"Transaction Documents" has the meaning attributed to the term
"Securitization Trust Documents" in the 1998-A SUBI Supplement.
"Transferor" means XXXX XX, in its capacity as transferor of the
1998-A SUBI Certificate and the 1998-A SUBI Interest under this Agreement, and
each successor thereto (in the same capacity) pursuant to Section 2.02.
24
"Transferor Amounts" means, with respect to any Distribution Date,
amounts available for distribution to the Transferor in respect of the
Transferor Distributable Amount for such Distribution Date that are instead
distributed pursuant to Section 3.03(e) because of an insufficiency in the
amount of Interest Collections available to make such distributions on such
Distribution Date (as determined pursuant to Section 3.03(e)).
"Transferor Certificate" means the Certificate executed and
authenticated by the Owner Trustee in substantially the form set forth in
Exhibit A to this Agreement.
"Transferor Distributable Amount" means, with respect to any
Distribution Date, the sum of the Transferor Principal Distributable Amount
and the Transferor Interest Distributable Amount.
"Transferor Interest" means, as of any date, an amount equal to (i)
the Aggregate Net Investment Value less (ii) the Note Balance.
"Transferor Interest Distributable Amount" means, with respect to any
Distribution Date, the amount equal to the Transferor Percentage (with respect
to Interest Collections) of all Interest Collections collected during or
received in respect of the related Collection Period, less the Transferor
Percentage of Capped Indenture Trustee Administrative Expenses, Capped Owner
Trustee Administrative Expenses and Uncapped Administrative Expenses.
"Transferor Percentage" means, with respect to Interest Collections
and Principal Collections respectively, received in or with respect to any
Collection Period, 100% minus the Investor Percentage as applied for such
Collection Period with respect to such items, respectively.
"Transferor Principal Distributable Amount" means, with respect to
any Distribution Date related to a Collection Period in the Amortization
Period, the amount equal to the Transferor Percentage (with respect to
Principal Collections) of all Principal Collections collected during or
received in respect of the related Collection Period.
"Trust" means the World Omni 1998-A Automobile Lease Securitization
Trust created by this Agreement, the estate of which consists or will consist
of the Trust Estate.
"Trust Estate" means (i) the property conveyed to the Trust under
Section 2.02 of this Agreement; (ii) the Distribution Account, the Reserve
Fund and such monies as are from time to time deposited therein; (iii) the
Residual Value Insurance Policy and (iv) all proceeds of the foregoing.
"UCC" means (a) in the case of Permitted Investments, the Uniform
Commercial Code as in effect in the State of Illinois, and (b) in all other
cases, the Uniform Commercial Code as in effect in the relevant jurisdiction.
"Uncapped Administrative Expenses" means Administrative Expenses that
would be Capped Contingent and Excess Liability Premiums, Capped Origination
Trust Administrative Expenses, Capped Indenture Trustee Administrative
Expenses or Capped Owner Trustee Administrative Expenses, respectively, except
that they exceed $550,000, $100,000, $100,000 (or $50,000 as applicable) or
$5,000 in any calendar year, respectively.
"Uncovered Loss Amount" means, for any Distribution Date, the excess
of (i) the Investor Percentage of Loss Amounts for such Distribution Date over
(ii) Covered Loss Amounts for such Distribution Date.
"Undistributed Transferor Excess Collections" has the meaning set
forth in Section 3.03(c).
25
"Uninvested Principal Collections" means, as of the end of the
Revolving Period, any Principal Collections with respect to the Revolving
Period (or amounts treated as Principal Collections pursuant to Section
3.03(b)) then on deposit in the 1998-A SUBI Collection Account that have not
been reinvested in additional 1998-A Leases and 1998-A Leased Vehicles as
contemplated by Section 8.02 of the 1998-A Servicing Supplement.
"United States" means the United States of America, its territories
and possessions and areas subject to its jurisdiction.
"U.S. Bank" has the meaning set forth in Recital A.
"Vice President" of any Person means any vice president of such
Person, whether or not designated by a number or words before or after the
title "Vice President."
"WOFCO" means World Omni Financial Corp. and its successors.
"XXXX LLC" means World Omni Lease Securitization LLC, a single member
Delaware limited liability company, the general partner of XXXX XX.
"XXXX XX" means World Omni Lease Securitization L.P. and its
successors.
Section 1.02. Article and Section References.
Except as otherwise specified herein, all article and section
references shall be to Articles and Sections in this Agreement.
ARTICLE TWO. CREATION OF TRUST
Section 2.01. Creation of Trust.
Upon the execution of this Agreement by the parties hereto, there is
hereby created the World Omni 1998-A Automobile Lease Securitization Trust. It
is the intention of the parties hereto that the Trust constitute a business
trust under the Business Trust Statute and that this Agreement constitute the
governing instrument of such business trust. The Owner Trustee shall file the
Certificate of Trust with the Secretary of State of the State of Delaware.
Section 2.02. Conveyance of the 1998-A SUBI Interest.
In consideration of the Trust's delivery to, or upon the order of,
the Transferor of executed and authenticated Notes, in authorized
denominations, in an aggregate amount equal to the sum of the Initial Class A
Note Balance and the Initial Class B Note Balance, and of the executed and
authenticated Transferor Certificate, the Transferor does hereby transfer,
assign and otherwise convey to the Trust, in trust for the benefit of the
Noteholders and Certificateholder, to the full extent of the Transferor's
interest therein, without recourse (subject to the Transferor's obligations
herein):
(i) all right, title and interest of the Transferor in and to
its interest in the 1998-A SUBI and the 1998-A SUBI Certificate evidencing
that interest in the 1998-A SUBI (such interest, the "1998-A SUBI Interest")
and all monies due thereon and paid thereon or in respect thereof;
(ii) the right to realize upon any property that may be deemed
to secure the 1998-A SUBI Interest;
26
(iii) all rights accruing to the holder of the 1998-A SUBI
Interest as a third-party beneficiary under the Origination Trust Agreement,
the 1998-A SUBI Supplement, the Servicing Agreement and the 1998-A Servicing
Supplement; and
(iv) all proceeds of the foregoing.
The Transferor also does hereby grant to the Trust a security
interest in all of the foregoing, and the Trust shall have all the rights,
powers and privileges of a secured party under the UCC.
Section 2.03. Acceptance by Owner Trustee.
The Owner Trustee does hereby accept on behalf of the Trust all
consideration conveyed by the Transferor pursuant to Section 2.02 and declares
that the Owner Trustee shall hold such consideration in trust as herein set
forth for the benefit of the Noteholders and the Certificateholder, subject to
the terms and provisions of this Agreement and the Indenture.
ARTICLE THREE. DISTRIBUTIONS; RESERVE FUND; STATEMENTS TO SECURITYHOLDERS
Section 3.01. Distribution Account.
(a) Pursuant to Section 9.02(e) of the 1998-A Servicing
Supplement, the Servicer (on behalf of the Owner Trustee) shall establish the
Distribution Account in the name of the Indenture Trustee for the benefit of
the Noteholders and the Certificateholder. The Distribution Account shall be
an account initially established with the Indenture Trustee and maintained
with the Indenture Trustee so long as (i) the commercial paper or other
short-term unsecured debt obligations of the Indenture Trustee have the
Required Rating, or (ii) the Distribution Account is a segregated trust
account bearing a designation clearly indicating that the funds deposited
therein are held in trust for the benefit of the Noteholders and the
Certificateholder, which Distribution Account is located in the Corporate
Trust Office of the Indenture Trustee and, so long as Xxxxx'x is a Rating
Agency, the Indenture Trustee has a long term deposit rating from Moody's of
at least Baa3 (or such lower rating as Moody's shall approve in writing) and
corporate trust powers under applicable federal and state laws and is
organized under the laws of the United States or any State. In the event that
the Indenture Trustee no longer meets either of the requirements stated above,
then the Servicer shall, with the Indenture Trustee's assistance as necessary,
cause the Distribution Account to be moved to a bank or trust company that
satisfies the above-mentioned requirements. The Owner Trustee hereby grants a
security interest in the Distribution Account, all Permitted Investments
therein and all proceeds of the foregoing to the Indenture Trustee for the
benefit of the Noteholders.
(b) For so long as the depository institution or trust
company then maintaining the Distribution Account meets the requirements of
either Section 3.01(a)(i) or (ii), all amounts held in the Distribution
Account shall, to the extent permitted by applicable laws, rules and
regulations, be invested, as directed by the Servicer pursuant to Section
9.02(j) of the 1998-A Servicing Supplement, in Permitted Investments (or, if
the Servicer fails to give such directions, as provided in Section 8.03 of the
Indenture); otherwise such amounts shall be maintained in cash. Earnings on
investment of funds in the Distribution Account shall be retained in the
Distribution Account and shall constitute part of the Trust Estate, and losses
shall be charged against the funds on deposit therein.
Section 3.02. Collections.
(a) Pursuant to Sections 9.02(b) and 9.10(b) of the 1998-A
Servicing Supplement, the Servicer shall deposit all proceeds of claims made
under the Residual Value Insurance Policy for insured
27
Residual Value Loss Amounts with respect to the Amortization Period into the
Distribution Account within one (1) Business Day after receipt. Pursuant to
Section 12.01(c) of the 1998-A SUBI Supplement and Section 9.02(g) of the
1998-A Servicing Supplement, on each Deposit Date the Servicer shall cause the
transfer from the 1998-A SUBI Collection Account to the Distribution Account
of all Interest Collections and, on each Deposit Date related to the
Collection Period in which the Amortization Date or any Early Amortization
Event occurs, and each subsequent Collection Period, all Principal
Collections, in each case for the preceding Collection Period (including, on
the Deposit Date related to the Collection Period in which an Early
Amortization Event occurs, all Principal Collections with respect to such
Collection Period prior to the Early Amortization Event). On each Deposit Date
the Servicer shall cause the transfer from the 1998-A SUBI Collection Account
to the Distribution Account of the Net Class A Swap Payment, if any, and the
Servicer shall deposit into the Distribution Account the Net Class A Swap
Receipt, if any. Further, on the Deposit Date related to the Collection Period
in which the Amortization Date or any Early Amortization Event occurs, the
Servicer also shall cause the transfer from the 1998-A SUBI Collection Account
to the Distribution Account all Reallocation Deposit Amounts and Uninvested
Principal Collections on deposit in the 1998-A SUBI Collection Account at the
time the Amortization Period commences. Such deposit may be made in the form
of a single deposit and shall be made in immediately available funds, no later
than 3:00 p.m., New York City time, on the relevant Deposit Date.
(b) The Indenture Trustee shall retain, subject to the
provisions of this Agreement and the other Transaction Documents, all
collections on or in respect of the 1998-A SUBI Interest transferred to the
Indenture Trustee, on behalf of the Noteholders, in accordance with such
provisions, in the Distribution Account or the Reserve Fund, as the case may
be. The Indenture Trustee shall be deemed to have possession of such monies
and collections for purposes of Section 9-305 of the UCC of the jurisdiction
in which such property is located.
Section 3.03. Distributions.
(a) On each Determination Date, pursuant to Section 9.02(f)
of the 1998-A Servicing Supplement, the Servicer shall calculate the amounts
to be distributed to the holder of the 1998-A SUBI Certificate, the Class A-1
Distributable Amount, the Class A-2 Distributable Amount, the Class A-3
Distributable Amount, the Class A-4 Distributable Amount, the Class B
Distributable Amount, the Transferor Distributable Amount, and all other
distributions to be made on the related Distribution Date.
(b) The rights of the Class B Noteholders to receive
distributions of Interest Collections in respect of the Class B Notes shall be
and are subordinated to the rights of the Class A Swap Counterparty to receive
the Class A Net Swap Payment, and the Class A-1 Noteholders, the Class A-2
Noteholders, the Class A-3 Noteholders and the Class A-4 Noteholders to
receive distributions of Interest Collections in respect of the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes to the
extent provided in this Agreement and the Indenture. On each Distribution Date
the Indenture Trustee shall distribute the product of (i) the Investor
Percentage with respect to Interest Collections, multiplied by (ii) the
Interest Collections paid over to the Indenture Trustee from the 1998-A SUBI
Collection Account pursuant to Section 3.02(a), together with any Transferor
Amounts, any proceeds of a claim made under the Residual Value Insurance
Policy pursuant to Section 9.10(b) of the 1998-A Servicing Supplement and the
Required Amount, if any, for such Distribution Date, and any amount of
Principal Collections that otherwise would be distributed to the Class B
Noteholders pursuant to subsection (d) below but is required to be applied to
the payment of clauses (iii), (vii) and (viii) below pursuant to subsection
(e)(iv) below, in the following amounts and otherwise in the following order
of priority to the following Persons:
(i) in the event of an Indenture Event of Default as a result
of which the Indenture Trustee has elected or has been instructed to sell the
Trust Estate pursuant to Section 5.17
28
of the Indenture, to the Indenture Trustee, the Investor Percentage of Capped
Indenture Trustee Administrative Expenses and to the Owner Trustee, the
Investor Percentage of Capped Owner Trustee Administrative Expenses;
(ii) first from the Class A Net Swap Receipt and then from the
amounts remaining after application of clause (i) above, (A) to the Class A-1
Interest Distributable Amount for such Distribution Date together with any
unpaid Class A-1 Interest Carryover Shortfall, the Class A-2 Interest
Distributable Amount for such Distribution Date together with any unpaid Class
A-2 Interest Carryover Shortfall, the Class A-3 Interest Distributable Amount
for such Distribution Date together with any unpaid Class A-3 Interest
Carryover Shortfall and the Class A-4 Interest Distributable Amount for such
Distribution Date together with any unpaid Class A-4 Interest Carryover
Shortfall, to the Class A-1, the Class A-2, the Class A-3 and the Class A-4
Noteholders, respectively and (B) to the Class A Swap Counterparty, the Class
A Net Swap Payment, if any, with respect to such Distribution Date plus any
Class A Net Swap Payments previously due but not paid; provided, however, if
funds available are not sufficient to the make the distributions specified in
subclauses (ii)(A) and (ii)(B), such funds will be allocated pro rata between
the Class A Noteholders and the Class A Swap Counterparty based on the
respective amounts due in each subclause;
(iii) the Class A-1 Note Principal Loss Interest Amount, the
Class A-2 Note Principal Loss Interest Amount, the Class A-3 Note Principal
Loss Interest Amount and the Class A-4 Note Principal Loss Interest Amount, if
any, for such Distribution Date to the Class A-1, Class A-2, Class A-3 and
Class A-4 Noteholders, respectively;
(iv) the Class B Interest Distributable Amount for such
Distribution Date, together with any unpaid Class B Interest Carryover
Shortfall, to the Class B Noteholders;
(v) in circumstances other than those set forth in clause (i),
the Investor Percentage of Capped Indenture Trustee Administrative Expenses
for the preceding Collection Period to the Indenture Trustee and the Investor
Percentage of Capped Owner Trustee Administrative Expenses for the preceding
Collection Period to the Owner Trustee;
(vi) until the amount on deposit in the Reserve Fund equals the
Reserve Fund Cash Requirement, to the Reserve Fund;
(vii) (A) to the Class A Noteholders, so long as the Note
Balance of the Class B Notes has not been reduced to zero, an amount equal to
the Covered Loss Amount for the related Distribution Date, sequentially,
commencing with the Class A-1 Noteholders until the Note Balance on each such
Class has been reduced to zero, or (B) if the Note Balance of the Class B
Notes has been reduced to zero, the A-1 Loss Amount, the Class A-2 Loss
Amount, the Class A-3 Loss Amount and the Class A-4 Loss Amount to the Class
A-1, the Class A-2, the Class A-3 and the Class A-4 Noteholders respectively;
(viii) to the Class A-1, the Class A-2, the Class A-3 and the
Class A-4 Noteholders, respectively, the aggregate amounts of the Class A-1
Note Principal Loss Amounts, Class A-2 Note Principal Loss Amounts, Class A-3
Note Principal Loss Amounts, and Class A-4 Note Principal Loss Amounts, if
any, for previous Distribution Dates that have not been previously reimbursed
to the Class A-1, Class A-2, Class A-3 or Class A-4 Noteholders pursuant to
this clause (viii);
(ix) the Class B Note Principal Loss Interest Amount and the
Class B Note Principal Carryover Shortfall Interest Amount, if any, for such
Distribution Date to the Class B Noteholders;
29
(x) the Uncovered Loss Amount incurred during the related
Collection Period shall be allocated to the Class B Noteholders;
(xi) to the Class B Noteholders the aggregate amount of the
Class B Note Principal Loss Amounts and Class B Note Principal Carryover
Shortfall, if any, for previous Distribution Dates that has not been
previously reimbursed to the Class B Noteholders pursuant to this clause (xi);
(xii) the Investor Percentage of Uncapped Administrative
Expenses, (A) to the Origination Trustee, the Indenture Trustee or the Owner
Trustee, as applicable, and then (B) to the Servicer, reimbursement of any
previous advance of Administrative Expenses that was made by the Servicer
pursuant to Section 9.05(a) of the 1998-A Servicing Supplement and has not yet
been reimbursed; and
(xiii) the balance, if any, shall constitute Excess Collections
and shall be applied as set forth in subsection (c) below.
Notwithstanding the foregoing, on any Distribution Date related
to a Collection Period in the Revolving Period, the amounts set forth in
clauses (vii), (viii), (x) and (xi) above shall not be paid to the
Noteholders, but shall be treated as Principal Collections for purposes of
Section 11.02 of the 1998-A SUBI Supplement.
(c) On each Distribution Date, the Indenture Trustee shall
distribute any Excess Collections in the following amounts and in the
following order of priority:
(i) if the Distribution Date relates to a Collection Period in
the Revolving Period, then as follows:
(A) if (1) the ERISA Compliance Test is
unsatisfied, or (2) if a Downgrade Trigger Event has occurred
and is continuing, the 60 day period set forth in the fourth
sentence of Section 3.04(b) has elapsed, and the Transferor
cannot comply with the requirements of either clause (i) or
clause (ii) thereof or has determined in good faith that such
compliance would not be commercially reasonable, then any
remainder to the Reserve Fund; and
(B) if Excess Collections are not required to be
applied as set forth in clause (A) above, then any remainder to
the Transferor;
(ii) if the Distribution Date relates to a Collection Period in
the Amortization Period, then as follows:
(A) any remainder up to but not exceeding the
product of one-twelfth of .25% and the Aggregate Net Investment
Value as of the last day of the related Collection Period (the
"Accelerated Principal Distribution Amount") as an additional
principal distribution to the Noteholders as follows: the
Accelerated Principal Distribution Amount will be distributed
first to the Class A-1 Noteholders until the Class A-1 Notes
have been paid in full, second, to the Class A-2 Noteholders
until the Class A-2 Notes have been paid in full, third, to the
Class A-3 Noteholders until the Class A-3 Notes have been paid
in full and fourth, the Class A Percentage and the Class B
Percentage of any remaining amount will be distributed to the
Class A-4 Noteholders and the Class B Noteholders,
respectively, until such Notes have been paid in full;
(B) if (1) the ERISA Compliance Test is
unsatisfied, or (2) if a Downgrade Trigger Event has occurred
and is continuing, the 60 day period set forth in the fourth
sentence of Section 3.04(b) has elapsed, and the Transferor
cannot comply with the requirements of either clause (i) or
clause (ii) thereof or has determined in good faith that such
30
compliance would not be commercially reasonable, then the
balance of any remainder to the Reserve Fund; and
(C) if Excess Collections are not required to be
applied as set forth in clause (B) above, then the balance of
any remainder to the Transferor.
Notwithstanding the foregoing, the Transferor may instruct the
Indenture Trustee and the Servicer to redeposit into the 1998-A SUBI
Collection Account any Excess Collections that otherwise would be payable to
the Transferor pursuant to the foregoing ("Undistributed Transferor Excess
Collections"), for treatment as Collections with respect to the Collection
Period during which such Distribution Date occurs. By so instructing the
Indenture Trustee and the Servicer, the Transferor waives any right that it
may be deemed to have in the related Undistributed Transferor Excess
Collections, except insofar as they become Excess Collections payable to the
Transferor in respect of a subsequent Collection Period.
(d) On each Distribution Date beginning with the
Distribution Date related to the Collection Period in which the Amortization
Period commences and ending on the Distribution Date before the Distribution
Date on which the Class A-3 Notes have been paid in full, the Indenture
Trustee shall distribute an amount equal to the Investor Percentage of all
Principal Collections collected or received in respect of the related
Collection Period to (w) the Class A-1 Noteholders until the Class A-1 Notes
have been paid in full, (x) the Class A-2 Noteholders until the Class A-2
Notes have been paid in full, (y) the Class A-3 Noteholders until the Class
A-3 Notes have been paid in full and (z) the Class A Percentage and the Class
B Percentage thereof to the Class A-4 Noteholders and Class B Noteholders,
respectively. On each Distribution Date after the Class A-3 Notes have been
paid in full, the Indenture Trustee shall distribute (i) to the Class A-4
Noteholders, the Class A Percentage of Principal Collections collected or
received in respect of the related Collection Period and (ii) subject to
subsection (e) below, to the Class B Noteholders, the Class B Percentage of
such Principal Collections. Distributions to Noteholders pursuant to Sections
3.03(b)(vii), (viii), (x), and (xi) also shall constitute distributions of
principal. The aggregate amount of principal distributed to any Class of
Noteholders shall not exceed the Initial Note Balance attributable to that
Class of Notes. Uncovered Loss Amounts will be allocated first to the Class B
Notes until the Note Balance of the Class B Notes has been reduced to zero and
then to the Class A Notes, pro rata, based on the Class A-1 Allocation
Percentage, the Class A-2 Allocation Percentage, the Class A-3 Allocation
Percentage and the Class A-4 Allocation Percentage.
(e) If and to the extent that the amount of Interest
Collections (measured for these purposes without regard to any deduction
therefrom provided for in clauses (a) through (c) of the definition of
"Interest Collections" in the 1998-A SUBI Supplement) available to make
distributions on a Distribution Date (plus, in the case of clause (b)(ii)
above, the Class A Net Swap Receipt) is insufficient to make distributions
(or, on a Distribution Date related to a Collection Period in the Revolving
Period, applications as if such amounts were Principal Collections) pursuant
to Section 3.03(b) and clauses (a) through (c) of the definition of the term
"Interest Collections" in the 1998-A SUBI Supplement, then:
(i) amounts otherwise available for distribution to the
Transferor in respect of the Transferor Interest Distributable Amount for such
Distribution Date, and then in respect of the Transferor Principal
Distributable Amount, will be applied towards such insufficiency;
(ii) if after giving effect to clause (i), there is still a
shortfall (other than any shortfall in amounts available to apply as set forth
in clause (vi) of Section 3.03(b)) in amounts available to make all
distributions (or, on a Distribution Date related to a Collection Period in
the Revolving Period, applications as if such amounts were Principal
Collections) pursuant to Section 3.03(b) and clauses (a) through (c) of the
definition of the term "Interest Collections" in the 1998-A SUBI Supplement,
the proceeds of any claim made by the Servicer pursuant to Section 9.10(b) of
the 1998-A Servicing Supplement will be applied towards such shortfall;
31
(iii) if after giving effect to clauses (i) and (ii), there is
still a shortfall (other than any shortfall in amounts available to apply as
set forth in clause (vi) of Section 3.03(b)) in amounts available to make all
distributions (or, on a Distribution Date related to a Collection Period in
the Revolving Period, applications as if such amounts were Principal
Collections) pursuant to Section 3.03(b) and clauses (a) through (c) of the
definition of the term "Interest Collections" in the 1998-A SUBI Supplement,
the Required Amount will be withdrawn from the Reserve Fund and applied
towards such shortfall; and
(iv) if, on a Distribution Date related to a Collection Period
during the Amortization Period, after giving effect to clauses (i), (ii) and
(iii), there is still a shortfall in amounts required to make the
distributions (or, on a Distribution Date related to a Collection Period in
the Revolving Period, available for reinvestment in additional 1998-A SUBI
Assets pursuant to Section 11.02 of the 1998-A SUBI Supplement) pursuant to
clause (iii), (vii) or (viii) of Section 3.03(b), amounts otherwise available
for distribution to the Class B Noteholders in respect of principal pursuant
to subsection (d) above will be applied toward such insufficiency.
In the event that there remain shortfalls in the amounts
required to be distributed pursuant to Section 3.03(b)(ii) to the Class A-1
Noteholders, the Class A-2 Noteholders, the Class A-3 Noteholders and the
Class A-4 Noteholders, and, on any Distribution Date on which the Note Balance
of the Class B Notes has been reduced to zero, there remains any shortfall in
amounts required to be distributed to the Class A-1 Noteholders, the Class A-2
Noteholders, the Class A-3 Noteholders and the Class A-4 Noteholders under
Sections 3.03(b)(iii), (vii) or (viii), the amounts available will be
distributed pro rata to Class A-1 Noteholders, Class A-2 Noteholders, Class
A-3 Noteholders and Class A-4 Noteholders based on the Class A-1 Allocation
Percentage, the Class A-2 Allocation Percentage, the Class A-3 Allocation
Percentage and the Class A-4 Allocation Percentage, respectively.
(f) On each Distribution Date, amounts that otherwise would
be payable to the Transferor in respect of the Transferor Distributable Amount
(other than Transferor Amounts) will be distributed to the Transferor by the
Indenture Trustee as follows: (A) if such Distribution Date relates to a
Collection Period during the Revolving Period, the interest component of such
remaining amounts will be paid in respect of the Transferor Interest
Distributable Amount and (B) if such Distribution Date relates to a Collection
Period during the Amortization Period, (1) the interest component of such
remaining amounts will be paid in respect of the Transferor Interest
Distributable Amount and (2) if and to the extent that the Transferor Interest
will be equal to or greater than zero, after all required distributions have
been made on such Distribution Date, the principal component of such remaining
amounts will be paid in respect of the Transferor Principal Distributable
Amount. Any amounts that would otherwise be payable to the Transferor pursuant
to the foregoing as the Transferor Principal Distributable Amount, but may not
be so paid because the Transferor Interest would be less than or equal to
zero, shall instead be distributed to the Noteholders pursuant to Section
3.03(d). Upon any distribution of amounts to the Transferor, the Noteholders
will have no further rights, in, or claims to, such amounts.
(g) On the Final Scheduled Maturity Date an additional
payment to the Holders of any Class shall be made as and to the extent
required by Section 3.04(f).
Section 3.04. Reserve Fund.
(a) (i) In order to assure that sufficient amounts to make
required distributions to Noteholders will be available, pursuant to Section
9.02(e) of the 1998-A Servicing Supplement the Servicer (on behalf of the
Owner Trustee) shall establish and maintain with and in the name of the
Indenture Trustee a separate trust account to be known as the "Reserve Fund",
which will include the money and other property deposited and held therein
pursuant to Section 3.03(c)(i) and this Section. The Reserve Fund shall be an
account initially established with the Indenture Trustee and maintained
32
with the Indenture Trustee so long as (A) the commercial paper or other
short-term unsecured debt obligations of the Indenture Trustee have the Required
Rating, or (B) the Reserve Fund is a segregated trust account bearing a
designation clearly indicating the funds deposited therein are held in trust for
the benefit of the Noteholders, which Reserve Fund is located in the Corporate
Trust Office of the Indenture Trustee and, so long as Xxxxx'x is a Rating
Agency, the Indenture Trustee has a long-term deposit rating from Moody's of at
least Baa3 (or such lower rating as Moody's shall approve in writing) and
corporate trust powers under applicable federal and state laws and is organized
under the laws of the United States or any State. In the event that the
Indenture Trustee no longer meets either of the requirements stated above, then
the Servicer shall, with the Indenture Trustee's assistance as necessary, cause
the Reserve Fund to be moved to a bank or trust company that satisfies the
above-mentioned requirements. The Owner Trustee hereby grants a security
interest in the Reserve Fund, all Permitted Investments therein and all proceeds
of the foregoing to the Indenture Trustee for the benefit of the Noteholders.
(ii) For so long as the depository institution or trust
company then maintaining the Reserve Fund meets the requirements of either
Section 3.04(a)(i)(A) or (B), all amounts held in the Reserve Fund shall, to
the extent permitted by applicable laws, rules and regulations, be invested,
as directed by the Servicer pursuant to Section 9.02(j) of the 1998-A
Servicing Supplement, in Permitted Investments (or, if the Servicer fails to
give such directions, as provided in Section 8.03 of the Indenture); otherwise
such amounts shall be maintained in cash. Earnings on investment of funds in
the Reserve Fund shall be retained in the Reserve Fund and shall constitute
part of the Trust Estate, and losses shall be charged against the funds on
deposit therein.
(b) On or prior to the Closing Date, the Transferor shall
deposit an amount equal to the Reserve Fund Initial Deposit into the Reserve
Fund. The Transferor also does hereby grant to the Indenture Trustee a
security interest in such initial deposit, and the Indenture Trustee shall
have all the rights, powers and privileges of a secured party under the UCC.
Amounts on deposit in the Reserve Fund shall be supplemented from time to time
by the deposit therein of other funds as and to the extent described elsewhere
in this Agreement. Within 60 days after receipt of notice that an RV Insurer
Trigger Event exists and is continuing, the Transferor shall deposit into the
Reserve Fund an additional cash amount equal to the RV Insurer Reserve Fund
Supplemental Requirement. Within 60 days after the occurrence of a Downgrade
Trigger Event, then either: (i) the Transferor shall (A) cause one or more
policies with substantially similar coverage and provisions to the Residual
Value Insurance Policy to be issued by an insurer acceptable to each Rating
Agency (as evidenced by confirmation (written or oral) from each to the effect
that such change would not result in its then-current rating of any Rated
Securities being qualified, reduced or withdrawn), provided that the
Origination Trustee and the Indenture Trustee shall at all times have the same
rights with respect to any replacement policy as with respect to the original
policy, or (B) cause an alternative mechanism to support the Booked Residual
Values of the 1998-A Leased Vehicles to be implemented and approved in
accordance with the procedures set forth in Section 9.01 for the amendment
hereof; or (ii) the Transferor shall deposit into the Reserve Fund an
additional cash amount equal to the Downgrade Reserve Fund Supplemental
Requirement; provided that if the Transferor cannot comply with either clause
(i) or clause (ii) or determines in good faith that such compliance would be
commercially unreasonable, Excess Collections shall be deposited into the
Reserve Fund as provided in Section 3.03(c). In addition, on each Deposit Date
relating to a Distribution Date on which a Reserve Fund Deficiency will exist,
the Transferor shall deposit into the Reserve Fund an additional cash amount
equal to the lesser of (i) such Reserve Fund Deficiency and (ii) the Reserve
Fund Supplemental Requirement. On each Distribution Date the amounts on
deposit in the Reserve Fund shall be available for distribution as provided in
Section 3.03 and, on each Distribution Date, if the amount on deposit in the
Reserve Fund (after giving effect to all deposits thereto or withdrawals
therefrom on such Distribution Date) is greater than the Reserve Fund Cash
Requirement and Excess Collections are not required to be deposited into the
Reserve Fund pursuant to Section 3.03(c), the Indenture Trustee will
distribute any remaining amounts to the Transferor.
33
(c) In the event there is a Downgrade Trigger Event, the 60
day period set forth in the fifth sentence of Section 3.04(b) has elapsed and
the Transferor has elected to comply with the requirements of clause (ii)
thereof rather than clause (i), or complies with neither of such clauses, the
Rating Agencies may impose additional conditions to the maintenance of their
then-current ratings on any Class of Notes, including conditions that may
require that this Agreement or any other Transaction Document be amended in
accordance with the provisions of Section 9.01(b) hereof or the relevant
provisions thereof.
(d) Upon termination of the Trust pursuant to Section 7.01,
any amounts on deposit in the Reserve Fund shall be available for payment of
any remaining amounts due to the Noteholders, and for payment of any remaining
amounts due to the Indenture Trustee and the Owner Trustee, and after payment
of such amounts due, shall be paid to the Transferor.
(e) Amounts properly received by the Transferor pursuant to
this Agreement shall be free of any claim of the Trust, the Indenture Trustee,
the Owner Trustee, the Class A Swap Counterparty or the Noteholders and shall
not be available to the Indenture Trustee, the Owner Trustee or the Trust for
the purpose of making deposits to the Reserve Fund or making payments to the
Class A Swap Counterparty or the Noteholders, nor shall the Transferor be
required to refund any amount properly received by it.
(f) On the Final Scheduled Maturity Date, to the extent that
the Class A-1 Note Balance, the Class A-2 Note Balance, the Class A-3 Note
Balance, the Class A-4 Note Balance or the Class B Note Balance has not been
reduced to zero the Indenture Trustee shall withdraw funds from the Reserve
Fund, if available, in an amount equal to the lesser of (A) the Class A-1 Note
Balance, the Class A-2 Note Balance, the Class A-3 Note Balance, the Class A-4
Note Balance or the Class B Note Balance, as applicable, and (B) the amount in
the Reserve Fund, and shall pay such funds to the Holders of such Class of
Notes.
Section 3.05 Net Deposits.
For so long as WOFCO shall be the Servicer, the Servicer and the
Indenture Trustee may make all remittances to the Distribution Account
pursuant to this Article net of amounts to be distributed by the applicable
recipient to such remitting party. The Transferor may make remittances to the
Distribution Account pursuant to this Article net of amounts distributable to
the Transferor on the related Distribution Date, provided that such amounts
were to be paid directly to the Transferor on such Distribution Date rather
than deposited into the Reserve Fund pursuant to Section 3.04. Nonetheless,
each such party shall account for all of the above described remittances and
distributions as if the amounts were deposited and/or transferred separately,
and the net remittance may only be made to the extent that the net result
thereof is the same as if the amounts were deposited and/or transferred
separately.
Section 3.06. Statements to Noteholders.
(a) On each Distribution Date, the Indenture Trustee shall
include with each distribution to each Noteholder of record, a statement,
prepared by the Servicer, based on information in the Servicer's Certificate
furnished pursuant to Section 10.01(b) of the 1998-A Servicing Supplement,
setting forth for the related Collection Period and distribution the following
information as of the related Record Date or Deposit Date or such Distribution
Date, as the case may be:
(i) the Investor Percentage for such Collection Period,
stated separately for Interest Collections and Loss Amounts, and for Principal
Collections;
(ii) the total amount being distributed to Noteholders in
such distribution;
34
(iii) the total amount being distributed to each Class of
Noteholders in such distribution;
(iv) the total amount of interest being distributed to
each Class of Noteholders in such distribution;
(v) the amount, if any, of Class A-1 Interest Carryover
Shortfall, Class A-2 Interest Carryover Shortfall, Class A-3 Interest
Carryover Shortfall, Class A-4 Interest Carryover Shortfall and Class B
Interest Carryover Shortfall included in such distribution;
(vi) the amount, if any, of the remaining unpaid Class A-1
Interest Carryover Shortfall, Class A-2 Interest Carryover Shortfall, Class
A-3 Interest Carryover Shortfall, Class A-4 Interest Carryover Shortfall and
Class B Interest Carryover Shortfall after giving effect to such distribution;
(vii) the total amount of principal being distributed to
each Class of Noteholders in such distribution;
(viii) the Class A-1 Allocation Percentage, the Class A-2
Allocation Percentage, the Class A-3 Allocation Percentage, the Class A-4
Allocation Percentage, the Class B Allocation Percentage and the amount, if
any, of the reimbursement of Class A-1 Charged-off Amounts, Class A-1 Residual
Value Loss Amounts and Class A-1 Additional Loss Amounts, Class A-2
Charged-off Amounts, Class A-2 Residual Value Loss Amounts and Class A-2
Additional Loss Amounts, Class A-3 Charged-off Amounts, Class A-3 Residual
Value Loss Amounts and Class A-3 Additional Loss Amounts, Class A-4
Charged-off Amounts, Class A-4 Residual Value Loss Amounts and Class A-4
Additional Loss Amounts and Class B Charged-off Amounts, Class B Residual
Value Loss Amounts and Class B Additional Loss Amounts being included in such
distribution;
(ix) the amount, if any, of the reimbursement of Class A-1
Note Principal Loss Amounts, Class A-2 Note Principal Loss Amounts, Class A-3
Note Principal Loss Amounts, Class A-4 Note Principal Loss Amounts and Class B
Note Principal Loss Amounts included in such distribution;
(x) the amount, if any, of the aggregate of unreimbursed
Class A-1 Note Principal Loss Amounts, Class A-2 Note Principal Loss Amounts,
Class A-3 Note Principal Loss Amounts, Class A-4 Note Principal Loss Amounts
and Class B Note Principal Loss Amounts after giving effect to such
distribution;
(xi) the amount, if any, of accrued Class A-1 Note
Principal Loss Interest Amounts, Class A-2 Note Principal Loss Interest
Amounts, Class A-3 Note Principal Loss Interest Amounts, Class A-4 Note
Principal Loss Interest Amounts and Class B Note Principal Loss Interest
Amounts included in such distribution;
(xii) the amount, if any, of accrued and unpaid Class A-1
Note Principal Loss Interest Amounts, Class A-2 Note Principal Loss Interest
Amounts, Class A-3 Note Principal Loss Interest Amounts, Class A-4 Note
Principal Loss Interest Amounts and Class B Note Principal Loss Interest
Amounts after giving effect to such distribution;
(xiii) the amount, if any, of accrued and unpaid Class B
Note Principal Carryover Shortfall after giving effect to such distribution;
35
(xiv) the Investor Percentage of the Servicing Fee
allocable to the 1998-A SUBI Interest for such Distribution Date and any
unpaid previous such amounts with respect to prior Distribution Dates;
(xv) the Note Balance, the Class A-1 Note Balance, the
Class A-2 Note Balance, the Class A-3 Note Balance, the Class A-4 Note
Balance, the Class B Note Balance, the Class A-1 Note Factor, the Class A-2
Note Factor, the Class A-3 Note Factor, the Class A-4 Note Factor and the
Class B Note Factor, each after giving effect to such distribution;
(xvi) the Transferor Amount, if any, included in such
distribution and the amount of the Transferor Interest, after giving effect to
all payments made on such Distribution Date;
(xvii) the Required Amount, if any, included in such
distribution;
(xviii) the Aggregate Net Investment Value as of the end
of such Collection Period;
(xix) the amount on deposit in the Reserve Fund on such
Distribution Date, after giving effect to such distributions, the change in
such balance from the immediately preceding Distribution Date, the Reserve
Fund Cash Requirement, the Reserve Fund Supplemental Requirement (if any), the
RV Insurer Reserve Fund Supplemental Requirement (if any) and the Downgrade
Reserve Fund Supplemental Requirement (if any);
(xx) the amount of Payments Ahead on deposit in the 1998-A
SUBI Collection Account and representing Monthly Lease Payments due in one or
more immediately subsequent Collection Periods and the change in such balance
from the immediately preceding Distribution Date;
(xxi) the amount of Outstanding Advances on such
Distribution Date and the changes in such amount from the immediately
preceding Distribution Date;
(xxii) the weighted average Lease Rate of the Leases in
the 1998-A SUBI Portfolio for the immediately preceding Collection Period and
the Charge-off Rate and Delinquency Rate for each of the three immediately
preceding Collection Periods;
(xxiii) the Insured Residual Value Loss Amount, if any,
for such Distribution Date;
(xxiv) the Class A Net Swap Payment and the Class A Net
Swap Receipt, in each case, if any, for such Distribution Date; and
(xxv) the Covered Loss Amounts and Uncovered Loss Amounts,
in each case, if any, for such Distribution Date.
Each amount set forth pursuant to subclauses (ii) through (xiii)
above shall be expressed as a dollar amount per $1,000 of original principal
balance of a Note. Any Note Owner may obtain a copy of any such statement, of
any Servicer's Certificate required pursuant to Section 10.01(b) of the 1998-A
Servicing Supplement, any annual report of Independent Accountants required
pursuant to Section 3.02 of the Servicing Agreement and Section 10.02 of the
1998-A Servicing Supplement, and of any annual Officer's Certificate required
pursuant to Section 3.03 of the Servicing Agreement and Section 10.03(a) of
the 1998-A Servicing Supplement, upon written request to the Indenture Trustee
at the Corporate Trust Office of the Indenture Trustee.
36
(b) Within a reasonable period of time after the end of each
calendar year, but not later than the latest date permitted by law, the
Indenture Trustee shall mail to each Person who at any time during such
calendar year shall have been a Holder of a Note, a statement or statements
which in the aggregate contain the sum of the amounts set forth in clauses
(a)(ii) through (vii), (viii) through (xiv) above for such calendar year or,
in the event such Person shall have been a Holder of a Note during a portion
of such calendar year, for the applicable portion of such year, for the
purposes of such Noteholder's preparation of federal income tax returns. In
addition, the Servicer shall furnish to the Indenture Trustee for distribution
to such Person at such time any other information reasonably necessary under
applicable law for the preparation of such income tax returns.
ARTICLE FOUR. THE TRANSFEROR CERTIFICATE
Section 4.01. The Transferor Certificate.
A single Transferor Certificate shall be issued. The Transferor
Certificate shall be executed by the Owner Trustee on behalf of the Trust by
manual or facsimile signature of a Responsible Officer under the Owner
Trustee's seal imprinted thereon and attested on behalf of the Owner Trustee
by the manual or facsimile signature of a Responsible Officer. A Transferor
Certificate bearing the manual or facsimile signatures of an individual who
was, at the time when such signature was affixed, a Responsible Officer of the
Owner Trustee shall be a valid and binding obligation of the Trust,
notwithstanding that such individual ceased to be so authorized prior to the
authentication and delivery of such Transferor Certificate or was not a
Responsible Officer at the date of such Transferor Certificate. The Transferor
Certificate shall be dated the date of its authentication.
Section 4.02. Authentication and Delivery of Transferor Certificate.
In exchange for, and simultaneously with the sale, assignment and
transfer to the Trust of the 1998-A SUBI Interest, the 1998-A SUBI Certificate
and the other assets of the Trust, the Transferor shall receive the Transferor
Certificate and the Notes. The Owner Trustee shall, on behalf of the Trust,
execute and deliver to or upon the order of the Transferor, and shall
authenticate, the Transferor Certificate. The Transferor Certificate shall not
be entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A to this Agreement executed by
the Owner Trustee by manual signature, and such certificate upon the
Transferor Certificate shall be conclusive evidence, and the only evidence,
that such Transferor Certificate has been duly authenticated and delivered
under this Agreement.
Section 4.03. No Transfer of Transferor Certificate.
Subject to Section 5.03, the Transferor Certificate shall be owned by
the Transferor and may not be transferred, as provided by Section 5.06.
Section 4.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Transferor Certificate is surrendered to the
Owner Trustee, or the Owner Trustee receives evidence to its satisfaction of
the destruction, loss or theft of the Transferor Certificate, and (ii) there
is delivered to the Owner Trustee such security or indemnity as may be
required by it to save itself and the Trust harmless, then, in the absence of
notice that such Transferor Certificate has been acquired by a bona fide
purchaser, the Owner Trustee on behalf of the Trust shall execute and the
Owner Trustee shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Transferor Certificate, a new
Transferor Certificate of like tenor and fractional undivided interest. Any
duplicate Transferor Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the Trust, as if
originally issued, whether or not the
37
lost, stolen or destroyed Transferor Certificate shall be found at any time,
and any such lost, stolen or destroyed Transferor Certificate shall, upon
issuance of any such duplicate Transferor Certificate, be null, void and of no
effect.
Section 4.05. Persons Deemed Owners.
The Owner Trustee shall treat the Transferor as the owner of the
Transferor Certificate for the purpose of receiving distributions pursuant to
Section 3.03 and for all other purposes whatsoever.
ARTICLE FIVE. THE TRANSFEROR
Section 5.01. Representations of Transferor.
The Transferor hereby makes the following representations on which
the Owner Trustee relies in accepting the 1998-A SUBI Interest and 1998-A SUBI
Certificate in trust and executing and authenticating the Transferor
Certificate and executing the Notes and on which the Indenture Trustee relies
in authenticating the Notes. The representations speak as of the execution and
delivery of this Agreement, but shall survive the sale, transfer and
assignment of the 1998-A SUBI Interest and 1998-A SUBI Certificate to the
Indenture Trustee and the Owner Trustee.
(a) Organization and Good Standing. The Transferor is a
limited partnership validly organized and existing and in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties shall be currently
owned and such business is presently conducted, and has power, authority and
legal right to acquire, own and sell the 1998-A SUBI Interest and 1998-A SUBI
Certificate.
(b) Due Registration. The Transferor is duly registered as a
foreign limited partnership in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business requires such qualifications, except
where the failure to so qualify or to have obtained such licenses and
approvals would not have a material adverse effect on the earnings, business
affairs or business prospects of the Transferor.
(c) Power and Authority. The Transferor has the power and
authority to execute and deliver this Agreement and to carry out its terms,
the Transferor has full power and authority to sell and assign the property to
be sold and assigned to and deposited with the Owner Trustee as part of the
Trust and has duly authorized such sale and assignment to the Owner Trustee by
all necessary partnership action; and the execution, delivery and performance
of this Agreement have been duly authorized by the Transferor by all necessary
partnership action.
(d) Valid Sale; Binding Obligations. This Agreement
evidences a valid sale, transfer and assignment of the 1998-A SUBI Interest
and 1998-A SUBI Certificate, enforceable against creditors of and purchasers
from the Transferor; and constitutes a legal, valid and binding obligation of
the Transferor enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights in general
and by general principles of equity, regardless of whether such enforceability
shall be considered in a proceeding in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of this
Agreement do not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time) a
default under, the certificate of limited partnership or limited partnership
agreement of the Transferor, or conflict with or violate any of the material
terms or provisions of, or constitute (with or without notice or lapse of
time) a default under, any indenture, agreement or other instrument to which
the Transferor
38
is a party or by which it is bound; nor result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than this Agreement); nor
violate any law or, to the best of the Transferor's knowledge, any order, rule
or regulation applicable to the Transferor of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Transferor or its properties;
which breach, default, conflict, lien or violation would have a material
adverse effect on the earnings, business affairs or business prospects of the
Transferor.
(f) No Proceedings. There are no proceedings or
investigations pending, or to the Transferor's best knowledge, threatened,
before any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Transferor or its properties: (i)
asserting the invalidity of this Agreement or the Transferor Certificate, (ii)
seeking to prevent the issuance of the Transferor Certificate or the
consummation of any of the transactions contemplated by this Agreement, (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Transferor of its obligations under, or the validity or
enforceability of, this Agreement or the Transferor Certificate or (iv)
relating to the Transferor and which might adversely affect the federal or
Alabama income tax attributes of the Transferor Certificate.
(g) Title to the 1998-A SUBI Certificate. The Transferor has
good title to, and is the sole legal and beneficial owner of, the 1998-A SUBI
Certificate, free and clear of Liens.
(h) Consents and Approvals. The Transferor has obtained or
made all necessary licenses, consents, approvals, waivers and notifications of
creditors, lessors and other nongovernmental Persons, in each case in
connection with the execution and delivery of this Agreement and the
consummation of all the transactions herein contemplated, and the Transferor
is not required to obtain the consent of any other party or the consent,
license, approval, or authorization from, or registration or declaration with,
any governmental authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this Agreement.
Section 5.02. Liability of Transferor; Indemnities.
The Transferor shall be liable in accordance with this Agreement only
to the extent of the obligations in this Agreement specifically undertaken by
the Transferor in such capacity under this Agreement and shall have no other
obligations or liabilities hereunder.
Section 5.03. Merger or Consolidation of, or Assumption of the
Obligations of, Transferor; Certain Limitations.
(a) Any Person (i) into which the Transferor may be merged
or consolidated, (ii) which may result from any merger, conversion or
consolidation to which the Transferor shall be a party or (ii) which may
succeed to all or substantially all of the business of the Transferor, shall
be the successor to the Transferor under this Agreement without the execution
or filing of any document or any further act on the part of any of the parties
to this Agreement, except that if the Transferor in any of the foregoing cases
is not the surviving entity, then the surviving entity shall execute an
agreement of assumption to perform every obligation of the Transferor either
generally or specifically as provided herein. The Transferor shall provide
notice of any merger, consolidation or succession pursuant to this Section to
each Rating Agency and shall receive confirmation (written or oral) from each
Rating Agency to the effect that such merger, consolidation, or succession
will not result in a qualification, downgrading or withdrawal of the
then-current rating assigned to any Rated Securities.
(b) (i) Subject to subparagraph (ii) below, the purpose of
the Transferor shall be to engage in any lawful activity for which a limited
partnership may be formed under the laws of the State
39
of Delaware other than the practice of a profession permitted to be operated
through a limited partnership under Delaware law.
(ii) Notwithstanding subparagraph (b)(i) above, the
purpose of the Transferor shall be limited to the following purposes:
(A) to act as settlor or grantor of one or more
securitization trusts formed pursuant to a trust agreement or other
agreement for the purpose of acquiring interests in the Origination
Trust, which securitization trust may issue certificates of
beneficial interest in the assets of such securitization trust;
(B) to acquire, own, hold, sell, transfer, convey,
dispose of, pledge, assign, borrow money against, finance, refinance
or otherwise deal with, publicly or privately and whether with
unrelated third parties or with affiliated entities, beneficial
interests in the Origination Trust, including without limitation any
undivided trust interests or special units of beneficial interest
created with respect to the Origination Trust, and certificates of
the securitization trust;
(C) to loan or otherwise invest funds received as a
result of the Transferor's beneficial interest in the Origination
Trust or certificates in the securitization trust and any other
income, as determined by the general partner of the Transferor from
time to time;
(D) to borrow money other than pursuant to clause
(B) above, but only to the extent that any such borrowing is
permitted by the terms of the transactions contemplated by clauses
(A) and (B); and
(E) to engage in any lawful act or activity and to
exercise any powers permitted to limited partnerships organized under
Delaware law that are incidental to and necessary or convenient for
the accomplishment of the foregoing purposes.
(c) Notwithstanding any other provision of this Section and
any provision of law, neither the Transferor nor its general partner, on
behalf of the Transferor, shall do any of the following:
(i) engage in any business or activity other than as set
forth in clause (b) above;
(ii) without the affirmative vote of a majority of the
members of the Board of Directors of the Transferor's general partner (which
must include the affirmative vote of all Independent Directors of the
Transferor's general partner, as required by the limited partnership agreement
of the Transferor), (A) dissolve or liquidate, in whole or in part, or
institute proceedings to be adjudicated bankrupt or insolvent, (B) consent to
the institution of bankruptcy or insolvency proceedings against it, (C) file a
petition seeking or consent to reorganization or relief under any applicable
federal or state law relating to bankruptcy, (D) consent to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Transferor or a substantial part of its property, (E) make a
general assignment for the benefit of creditors, (F) admit in writing its
inability to pay its debts generally as they become due, or (G) take any
corporate action or partnership action in furtherance of the actions set forth
in clauses (A) through (F) above; provided, however, that the general partner
shall in no event consent to the institution of bankruptcy or insolvency
proceedings against the Transferor so long as it is solvent; or
(iii) merge or consolidate with any other limited
partnership, corporation, company or entity or sell all or substantially all
of its assets or acquire all or substantially all of the assets or partnership
interests or capital stock or other ownership interest of any other limited
40
partnership, corporation, company or entity (except for the acquisition of
beneficial interests in the Origination Trust and the sale, transfer,
conveyance, disposition, pledge, assignment, financing, and refinancing of, or
otherwise dealing with, beneficial interests in the Origination Trust in
accordance with the terms of subparagraph (b)(ii) above, which shall not be
otherwise restricted by this Section 5.03(c)).
Section 5.04. Limitation on Liability of Transferor and Others.
The Transferor and any director or officer or employee or agent of
the Transferor may rely in good faith on the advice of counsel or on any
document of any kind, prima facie properly executed and submitted by any
Person respecting any matters arising under this Agreement.
Section 5.05. Transferor May Own Notes.
Each of the Transferor and any Person controlling, controlled by or
under common control with the Transferor may in its individual or any other
capacity become the owner or pledgee of Notes with the same rights as it would
have if it were not the Transferor or such an affiliate thereof except as
otherwise specifically provided in the definition of the term "Noteholder".
Notes so owned by or pledged to the Transferor or such controlling or commonly
controlled Person shall have an equal and proportionate benefit under the
provisions of this Agreement, without preference, priority or distinction as
among all of the Notes. The Transferor will give notice to each Rating Agency
if any such controlling or commonly controlled Person shall at any time become
the owner or pledgee of Notes.
Section 5.06. No Transfer.
Subject to Section 5.03, the Transferor on behalf of itself and its
successors and assigns hereby covenants that it will not transfer, pledge or
assign to any Person the Transferor Certificate or any part of its right to
receive any Excess Collections pursuant to Section 3.03(c).
Section 5.07. Tax Matters Partner.
If at any time the Trust has two or more beneficial owners and is
treated as a partnership for tax purposes, the Transferor shall act as "Tax
Matters Partner" within the meaning of section 6231 of the Code (i) to
represent the partners before taxing authorities or courts of competent
jurisdiction in any tax matters affecting the Trust as a tax partnership; and
(ii) to execute any agreements or other documents relating to or affecting
such tax matters, including, but not limited to, extending the statute of
limitations for assessment of tax deficiencies and adjusting the Trust's
federal, state or local tax returns. The Transferor shall not be liable to the
Trust or to any Noteholder for any action taken or omitted by the Transferor
with regard to such tax matters or otherwise as a result of its holding the
position of Tax Matters Partner.
ARTICLE SIX. THE OWNER TRUSTEE
Section 6.01. Duties of Owner Trustee.
(a) The Owner Trustee, both prior to and after the
occurrence of a 1998-A Servicer Event of Default under the Servicing Agreement
and the 1998-A Servicing Supplement, undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement.
(b) The Owner Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Owner Trustee that shall be specifically required
to be furnished pursuant to any provision of this Agreement, shall examine
them to determine whether they conform on their face to the requirements of
this Agreement.
41
(c) No provision of this Agreement shall be construed to
relieve the Owner Trustee from liability for its own negligent action, its own
negligent failure to act, its own bad faith or its own willful misfeasance;
provided, however, that
(i) the duties and obligations of the Owner Trustee shall
be determined solely by the express provisions of this Agreement, the Owner
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Owner
Trustee, the permissive right of the Owner Trustee to do things enumerated in
this Agreement shall not be construed as a duty and, in the absence of bad
faith on the part of the Owner Trustee, the Owner Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Owner
Trustee and conforming to the requirements of this Agreement;
(ii) the Owner Trustee shall not be personally liable for
an error of judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Owner Trustee was negligent in performing its duties
in accordance with the terms of this Agreement; and
(iii) the Owner Trustee shall not be personally liable
with respect to any action taken, suffered or omitted to be taken in good
faith in accordance with the direction of the Transferor relating to the time,
method and place of conducting any proceeding for any remedy available to the
Owner Trustee, or exercising any trust or power conferred upon the Owner
Trustee, under this Agreement or the Origination Trust Agreement (as
supplemented by the 1998-A SUBI Supplement).
(d) The Owner Trustee shall not be required to expend or
risk its own funds or otherwise incur financial liability in the performance
of any of its duties under this Agreement, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing that the
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(e) All information obtained by the Owner Trustee regarding
the Obligors and the Leases contained in the 1998-A SUBI, whether upon the
exercise of its rights under this Agreement or any other Transaction Document,
shall be maintained by the Owner Trustee in confidence and shall not be
disclosed to any other Person, unless such disclosure is required by any
applicable law or regulation or pursuant to subpoena.
Section 6.02. Certain Matters Affecting the Owner Trustee.
Except as otherwise provided in Section 6.01:
(i) the Owner Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) the Owner Trustee may consult with counsel and any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it under this Agreement
or any other Transaction Document in good faith and in accordance with such
Opinion of Counsel;
(iii) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it, or to institute, conduct or
defend any litigation, at the request, order or
42
direction of the Indenture Trustee or the Transferor, unless the Noteholders,
the Indenture Trustee or the Transferor shall have offered to the Owner
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby;
(iv) the Owner Trustee shall not be personally liable for
any action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers conferred upon
it by this Agreement; and
(v) the Owner Trustee may execute any of the trusts or
powers under this Agreement or perform any duties under this Agreement either
directly or by or through agents or attorneys or a custodian.
Section 6.03. Owner Trustee Not Liable for Notes, Transferor
Certificate or Leases.
The Owner Trustee shall make no representations as to the validity,
enforceability or sufficiency of this Agreement, the Indenture, the Notes, the
Transferor Certificate (other than the execution by the Owner Trustee on
behalf of the Trust of the Indenture, the Notes and the Transferor
Certificate, and the certificate of authentication on, the Transferor
Certificate), or of the 1998-A SUBI Interest or 1998-A SUBI Certificate. The
Owner Trustee shall have no obligation to perform any duty unless explicitly
set forth in this Agreement or directed pursuant to Section 6.17. The Owner
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of the Indenture, the
Notes, the 1998-A SUBI Interest or 1998-A SUBI Certificate or any 1998-A
Lease, any ownership interest in any 1998-A Leased Vehicle, or the maintenance
of any such ownership interest, or for or with respect to the efficacy of the
Trust or its ability to generate the payments to be distributed to the
Noteholders or the Certificateholder under this Agreement, including without
limitation the validity of the assignment of the 1998-A SUBI Interest or
1998-A SUBI Certificate to the Trust or of any intervening assignment; the
existence, condition, location and ownership of any 1998-A Lease or 1998-A
Leased Vehicle; the existence and enforceability of any physical damage or
credit life or credit disability insurance; the existence and contents of any
1998-A Lease or any computer or other record thereof; the completeness of any
1998-A Lease; the performance or enforcement of any Lease; the compliance by
the Transferor with any covenant or the breach by the Transferor of any
warranty or representation made under this Agreement or in any related
document and the accuracy of any such warranty or representation; the acts or
omissions of the Transferor or the Servicer; or any action or failure to act
by the Owner Trustee taken at the instruction of the Servicer; provided,
however, that the foregoing shall not relieve the Owner Trustee of its
obligation to perform its duties under this Agreement. Except with respect to
a claim based on the failure of the Owner Trustee to perform its duties under
this Agreement or based on the Owner Trustee's willful misconduct, bad faith
or negligence, no recourse shall be had for any claim based on any provision
of this Agreement, the Transferor Certificate, the 1998-A SUBI Interest or
1998-A SUBI Certificate or assignment thereof against the institution serving
as Owner Trustee in its individual capacity. The Owner Trustee shall not have
any personal obligation, liability or duty whatsoever to any Noteholder, the
Indenture Trustee, the Transferor or any other Person with respect to any such
claim, and any such claim shall be asserted solely against the Trust or any
indemnitor who shall furnish indemnity as provided in this Agreement. The
Owner Trustee shall not be accountable for the use or application by the
Transferor of any of the Notes or the Transferor Certificate or of the
proceeds of the Notes or the Transferor Certificate, or for the use or
application of any funds paid to the Servicer in respect of the 1998-A SUBI
Interest or 1998-A SUBI Certificate.
Section 6.04. Owner Trustee May Own Notes.
The Owner Trustee in its individual or any other capacity may become
the owner or pledgee of Notes with the same rights as it would have if it were
not Owner Trustee.
43
Section 6.05. Owner Trustee's Fees and Expenses.
The Owner Trustee shall be entitled to reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of
a trustee of an express trust) for all services rendered by it in the
execution of the trusts created by this Agreement and in the exercise and
performance of any of the powers and duties of the Owner Trustee under this
Agreement, and payment or reimbursement upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Owner Trustee in
its capacity as Owner Trustee in accordance with any of the provisions of this
Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence, willful misfeasance or bad faith or that is the responsibility of
the Indenture Trustee, the Noteholders or the Transferor under this Agreement
or any other Transaction Document. Such compensation and reimbursement shall
be paid as set forth in Section 3.03(b) hereof or Section 10.01 of the 1998-A
SUBI Supplement (in the definitions of the terms "Principal Collections" and
"Interest Collections"). Additionally, the Transferor, pursuant to Section
6.02(iii), may agree to indemnify the Owner Trustee under certain
circumstances.
Section 6.06. Eligibility Requirements for Owner Trustee.
The Owner Trustee under this Agreement shall at all times be a
national banking association or corporation having its corporate trust office
in the same State as the location of the Corporate Trust Office of the Owner
Trustee as specified in this Agreement; and organized and doing business under
the laws of such State or the United States; authorized under such laws to
exercise corporate trust powers; having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or
state authorities; and having a long-term deposit rating no lower than Baa3 by
Moody's, so long as Xxxxx'x is a Rating Agency, or be otherwise acceptable to
each Rating Agency, as evidenced by a letter to such effect from each of them.
If the Owner Trustee shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purpose of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Owner Trustee shall resign
immediately in the manner and with the effect specified in Section 6.07.
Section 6.07. Resignation or Removal of Owner Trustee.
(a) The Owner Trustee may at any time resign and be
discharged from the trusts created by this Agreement by giving written notice
thereof to the Transferor. Upon receiving such notice of resignation, the
Transferor shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for
the appointment of a successor Owner Trustee.
(b) If at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of Section 6.06 and shall fail to
resign after written request therefor by the Transferor, or if at any time the
Owner Trustee shall be legally unable to act, or shall be adjudged a bankrupt
or insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Transferor may remove the Owner Trustee.
If it shall remove the Owner Trustee under the authority of the immediately
preceding sentence, the
44
Transferor shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the Owner Trustee so removed and one copy to the successor Owner Trustee, and
payment of all fees owed to the outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section shall not become effective until acceptance of appointment by the
successor Owner Trustee as provided in Section 6.08. The Servicer shall give
the Indenture Trustee and each Rating Agency notice of any such resignation or
removal of the Owner Trustee and appointment and acceptance of a successor
Owner Trustee.
Section 6.08. Successor Owner Trustee.
Any successor Owner Trustee appointed as provided in Section 6.07
shall execute, acknowledge and deliver to the Transferor and to its
predecessor Owner Trustee an instrument accepting such appointment under this
Agreement, and thereupon the resignation or removal of the predecessor Owner
Trustee shall become effective and such successor Owner Trustee, without any
further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under this
Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall deliver to the successor Owner Trustee all
documents and statements held by it under this Agreement; and the Transferor
and the predecessor Owner Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Owner Trustee all such rights, powers,
duties and obligations. No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor
Owner Trustee shall be eligible under the provisions of Section 6.06. Upon
acceptance of appointment by a successor Owner Trustee as provided in this
Section, the Servicer shall cause notice of the successor of such Owner
Trustee under this Agreement to be given by mail to the Indenture Trustee and
each Rating Agency. If the Servicer fails to mail or cause to be mailed such
notice within ten days after acceptance of appointment by the successor Owner
Trustee, the successor Owner Trustee shall cause such notice to be mailed at
the expense of the Servicer.
Section 6.09. Merger or Consolidation of Owner Trustee.
Any corporation (i) into which the Owner Trustee may be merged or
consolidated, (ii) which may result from any merger, conversion, or
consolidation to which the Owner Trustee shall be a party, or (iii) which may
succeed to the corporate trust business of the Owner Trustee, shall be the
successor of the Owner Trustee hereunder, provided such corporation shall be
eligible pursuant to Section 6.06, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding, except that if the Owner
Trustee in any of the foregoing cases is not the surviving entity, then the
surviving entity shall execute an agreement of assumption to perform every
obligation of the Owner Trustee, either generally or particularly as provided
herein. Notice of any such event shall be given by the Owner Trustee to each
Rating Agency.
Section 6.10. Appointment of Co-Trustee or Separate Owner Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust may at the time be located, the Transferor and the Owner
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Owner Trustee to
act as co-trustee, jointly with the Owner Trustee, or separate trustee or
separate trustees, of all or any part of the Trust, and to vest in such
Person, in such capacity and for the benefit of the Noteholders and the
Transferor Certificateholder, such title to the Trust, or any part thereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Transferor and the Owner Trustee may
consider necessary or desirable. If the Transferor shall not have joined in
such appointment within 15
45
days after the receipt by it of a request so to do, the Owner Trustee alone
shall have the power to make such appointment. No co-trustee or separate
trustee under this Agreement shall be required to meet the terms of
eligibility as a successor Owner Trustee pursuant to Section 6.06 and no
notice of a successor Owner Trustee pursuant to Section 6.08 and no notice to
Noteholders or the Indenture Trustee of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 6.08.
Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Owner Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Transferor and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Section. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Transferor and the Servicer.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee. Notwithstanding anything to the
contrary in this Agreement, the appointment of any separate trustee or
co-trustee shall not relieve the Owner Trustee of its obligations and duties
under this Agreement.
Section 6.11. Representations and Warranties of Owner Trustee.
The Owner Trustee makes the following representations and warranties
on which the Transferor and the Noteholders may rely:
(i) Organization and Good Standing. The Owner Trustee is a
Delaware banking corporation organized, existing and in good standing under
the laws of the State of Delaware.
46
(ii) Power and Authority. The Owner Trustee has full
power, authority and right to execute, deliver and perform this Agreement and
has taken all necessary action to authorize the execution, delivery and
performance by it of this Agreement.
(iii) Due Execution. This Agreement has been duly executed
and delivered by the Owner Trustee.
(iv) Enforceability. This Agreement constitutes the legal,
valid and binding obligation of the Owner Trustee, enforceable against it in
accordance with its terms except as the enforceability thereof may be limited
by bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting enforcement of creditors' rights generally and by general principles
of equity.
Section 6.12. Tax Returns.
The Servicer shall on behalf of the Trust, the Owner Trustee and the
Transferor, prepare or shall cause to be prepared any required federal tax
information returns (in a manner consistent with the treatment of the Notes as
indebtedness) and the Owner Trustee shall file and distribute such forms as
required by law in accordance with the Servicer's instructions. If and to the
extent the Trust is treated as a partnership for federal income tax purposes,
the Servicer shall prepare or cause to be prepared any federal and state
income tax returns that may be required with respect to the Trust or the Trust
assets and shall deliver any such returns to the Owner Trustee for signature
by the Transferor at least five days prior to the date such returns are
required by law to be filed.
Section 6.13. Owner Trustee May Enforce Claims Without Possession of
Transferor Certificate.
All rights of action and claims under this Agreement or the
Transferor Certificate may be prosecuted and enforced by the Owner Trustee
without the possession of the Transferor Certificate or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Owner Trustee shall be brought in its own name as trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Owner Trustee, its
agents and counsel, be for the ratable benefit of the Noteholders and the
Certificateholder in respect of which such judgment has been obtained.
Section 6.14. Suit for Enforcement.
If a 1998-A Servicer Event of Default shall occur and be continuing
under the Servicing Agreement, as supplemented by the 1998-A Servicing
Supplement with respect to the 1998-A SUBI Portfolio, or if the RV Insurer
shall have failed to comply with its obligations to the Indenture Trustee or
the Owner Trustee as an insured party under the Residual Value Insurance
Policy, the Indenture Trustee or the Owner Trustee, in its discretion may,
subject to the provisions of Sections 6.01 and 6.02 hereof, and Section
11.01(b) of the 1998-A Servicing Supplement (with respect to the Servicer),
and the terms of the Residual Value Insurance Policy (with respect to the RV
Insurer) proceed to protect and enforce its rights and the rights of the
Noteholders and Certificateholder under this Agreement, the Servicing
Agreement and the Servicing Supplement, or the Residual Value Insurance
Policy, as applicable, by a suit, action or proceeding in equity or at law or
otherwise, whether for the specific performance of any covenant or agreement
contained herein or therein or in aid of the execution of any power granted
herein or therein or for the enforcement of any other legal, equitable or
other remedy as the Indenture Trustee or the Owner Trustee, being advised by
counsel, shall deem most effectual to protect and enforce any of the rights of
the Indenture Trustee or the Owner Trustee or the Noteholders and
Certificateholder.
Section 6.15. Rights of Indenture Trustee to Direct Owner Trustee.
47
The Indenture Trustee (and, after payment in full of the Notes, the
Transferor) shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Owner Trustee under
this Agreement, or exercising any trust or power conferred on the Owner
Trustee by this Agreement; provided, however, that (a) subject to Sections
6.01 and 6.02, the Owner Trustee shall have the right to decline to follow any
such direction if the Owner Trustee being advised by counsel determines that
the action so directed may not lawfully be taken, or if the Owner Trustee in
good faith shall, by a Responsible Officer, determine that the proceedings so
directed would be illegal or subject it to personal liability and (b) nothing
in this Agreement shall impair the right of the Owner Trustee to take any
action deemed proper by the Owner Trustee and which is not inconsistent with
such direction by the Indenture Trustee (and, after payment in full of the
Notes, the Transferor).
Section 6.16. No Petition.
Each of the Owner Trustee and the Indenture Trustee covenants and
agrees that prior to the date which is one year and one day after the last
date upon which (a) each Class of Notes has been paid in full, and (b) all
obligations due under any other Securitized Financing have been paid in full,
neither the Owner Trustee nor the Indenture Trustee will institute against, or
join any other Person in instituting against (i) ALF LP, the Transferor or any
other Special Purpose Affiliate, (ii) ALF LLC, World Omni Lease Securitization
or any other general partner of a Special Purpose Affiliate that is a
partnership, (iii) any manager (other than WOFCO) of a limited liability
company that is a general partner of a Special Purpose Affiliate that is a
partnership or that itself is a Special Purpose Affiliate, or (iv) the
Origination Trustee or the Origination Trust, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other proceedings under
any federal or state bankruptcy or similar law. This Section shall survive the
termination of this Agreement or the resignation or removal of the Owner
Trustee or the Indenture Trustee under this Agreement or the Indenture,
respectively.
Section 6.17. Authority to Execute.
The Transferor hereby authorizes and directs the Owner Trustee (i) to
execute and deliver, on behalf of the Trust, the Indenture, the Notes, the
Transferor Certificate and any other document as the Transferor or the
Indenture Trustee may from time to time direct, (ii) to execute and deliver
all other documents contemplated by the documents referred to in clause (i)
above, and (iii) subject to the terms of this Agreement, to take such other
actions in connection with the foregoing as the Transferor, the Servicer or
the Indenture Trustee may from time to time direct.
Section 6.18. Management of the Trust
The business and affairs of the Trust shall be managed by the Owner
Trustee at the direction of the Transferor, the Servicer and the Indenture
Trustee.
ARTICLE SEVEN. TERMINATION
Section 7.01. Termination of the Trust.
The Trust and the respective obligations and responsibilities of the
Transferor, the Indenture Trustee and the Owner Trustee shall terminate upon
the earliest of (i) the purchase as of any Distribution Date by the Transferor
of the corpus of the Trust as described in Section 7.02 (ii) the day following
the Distribution Date upon which all Notes have been paid in full and after
which there is no unreimbursed Class A-1 Note Principal Loss Amount, Class A-2
Note Principal Loss Amount, Class A-3 Note Principal Loss Amount, Class A-4
Note Principal Loss Amount, Class B Note Principal Loss Amount, Class A-1 Note
Principal Loss Interest Amount, Class A-2 Note Principal Loss Interest Amount,
Class A-3 Note Principal Loss Interest Amount, Class A-4 Note Principal Loss
Interest Amount, Class B Note Principal Loss Interest Amount, Class B Note
Principal Carryover Shortfall or Class B Note
48
Principal Carryover Shortfall Interest Amount or (iii) the expiration,
disposition or termination of the 1998-A SUBI Interest; provided, however,
that in no event shall the trust created by this Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the descendants
of Xxxxxxx Xxxxxxxxx Xxxxxxx of the State of Arkansas, living on the date of
the Agreement. The Transferor shall promptly notify the Owner Trustee and each
Rating Agency of any prospective termination of the Trust.
Section 7.02. Optional Purchase of the 1998-A SUBI Interest.
(a) On each Distribution Date as of which the Note Balance
shall be less than or equal to ten percent (10%) of the Initial Note Balance,
either before or after giving effect to any payment of principal required to
be made on such Distribution Date, the Transferor shall have the option to
purchase the corpus of the Trust. To exercise such option, the Transferor
shall notify the Indenture Trustee, the Owner Trustee and the Servicer, in
writing, no later than the third Business Day of the month in which such
purchase is to be effected and shall deposit in the Distribution Account an
amount equal to the greater of (i) the Aggregate Net Investment Value as of
the last day of the related Collection Period, and (ii) the sum of (A) the
Note Balance, (B) the accrued and unpaid Class A-1 Interest Distributable
Amount, Class A-2 Interest Distributable Amount, Class A-3 Interest
Distributable Amount, Class A-4 Interest Distributable Amount and Class B
Interest Distributable Amount, (C) any accrued and unpaid Class A-1 Interest
Carryover Shortfall, Class A-2 Interest Carryover Shortfall, Class A-3
Interest Carryover Shortfall, Class A-4 Interest Carryover Shortfall and Class
B Interest Carryover Shortfall, (D) any unpaid Class A-1 Note Principal Loss
Amount, unpaid Class A-2 Note Principal Loss Amount, unpaid Class A-3 Note
Principal Loss Amount, unpaid Class A-4 Note Principal Loss Amount, unpaid
Class B Note Principal Loss Amount and unpaid Class B Note Principal Carryover
Shortfall, and (E) any accrued and unpaid Class A-1 Note Principal Loss
Interest Amount, unpaid Class A-2 Note Principal Loss Interest Amount, unpaid
Class A-3 Note Principal Loss Interest Amount, unpaid Class A-4 Note Principal
Loss Interest Amount, unpaid Class B Note Principal Loss Interest Amount and
Class B Note Principal Carryover Shortfall Interest Amount through the day
preceding the final Distribution Date. The Transferor also shall pay to the
Servicer the aggregate amount of any unreimbursed Advances and the termination
payment, if any, owed by the Trust to the Class A Swap Counterparty for early
termination of the Class A Interest Rate Swap Agreement. Thereupon the
Transferor shall succeed to all of the Trust corpus.
(b) The corpus of the Trust may only be purchased pursuant
to this Section 7.02 if the Indenture Trustee and each Rating Agency receives
an Opinion of Counsel from the Transferor's counsel to the effect that such
purchase would not constitute a fraudulent conveyance, or each Rating Agency
is otherwise satisfied (as evidenced by written notice from each to the
Indenture Trustee).
ARTICLE EIGHT. EARLY AMORTIZATION EVENTS
Section 8.01. Early Amortization Events.
If any one of the following events shall occur during the Revolving
Period:
(a) failure on the part of the Servicer (i) to make any
payment or deposit required with respect to the 1998-A SUBI, the 1998-A SUBI
Interest, or the Notes under this Agreement, the Origination Trust Agreement
or the 1998-A SUBI Supplement, or the Servicing Agreement or the 1998-A
Servicing Supplement, on or before the date occurring five Business Days after
the payment or deposit is required to be made, or (ii) to deliver a Servicer's
Certificate within ten Business Days after any Determination Date;
(b) failure on the part of the Transferor or the Servicer
duly to observe or perform in any material respect any other covenants or
agreements of the Transferor or the Servicer set forth
49
in this Agreement, the Origination Trust Agreement or the 1998-A SUBI
Supplement, or the Servicing Agreement or the 1998-A Servicing Supplement,
which failure materially and adversely affects the rights of the holder of the
1998-A SUBI Interest or of the Notes and which continues unremedied and
continues to affect materially and adversely the rights of the holder of the
1998-A SUBI Interest or of the Notes for a period of 60 days after the date on
which written notice of such failure, requiring the same to be remedied, is
given (i) to the Transferor or the Servicer, as the case may be, by the
Indenture Trustee, Owner Trustee or the Origination Trustee, or (ii) to the
Transferor or the Servicer, as the case may be, and to the Indenture Trustee
by the Holders of Notes evidencing not less than 25% of the aggregate
Percentage Interest;
(c) any representation or warranty made by ALF LP in the
SUBI Certificate Agreement, by the Transferor in this Agreement, or the
representation and warranty made by the Servicer in Section 8.01(c) of the
1998-A Servicing Supplement or any certificate given pursuant to Section
8.02(b) of the 1998-A Servicing Supplement, shall prove to have been incorrect
in any material respect when made or given, as a result of which the interests
of the holder of the 1998-A SUBI Interest or of the Noteholders are materially
and adversely affected and which continues to be incorrect in any material
respect and continues to affect materially and adversely affect the interests
of the holder of the 1998-A SUBI Interest or of the Noteholders for a period
of 60 days after the date on which written notice of such failure, requiring
the same to be remedied, is given (i) to ALF LP, the Transferor or the
Servicer, as the case may be, by the Indenture Trustee, Owner Trustee or the
Origination Trustee, or (ii) to ALF LP, the Transferor or the Servicer, as the
case may be, and to the Indenture Trustee by the Holders of Notes evidencing
not less than 25% of the aggregate Percentage Interest; provided, however,
that an Early Amortization Event pursuant to this subparagraph (b) shall not
be deemed to have occurred hereunder if the Servicer has made the deposit
contemplated by Section 8.03 of the 1998-A Servicing Supplement and has
reallocated the relevant 1998-A Lease and 1998-A Leased Vehicle to the UTI
Portfolio within the time provided therefor;
(d) the Transferor shall file a petition commencing a
voluntary case under any chapter of the Federal bankruptcy laws; or the
Transferor shall file a petition or answer or consent seeking reorganization,
arrangement, adjustment, or composition under any other similar applicable
Federal law, or shall consent to the filing of any such petition, answer, or
consent; or the Transferor shall appoint, or consent to the appointment of a
custodian, receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of it or of any substantial part
of its property, or shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts generally as they become
due;
(e) any order for relief against the Transferor shall have
been entered by a court having jurisdiction in the premises under any chapter
of the Federal bankruptcy laws; or a decree or order by a court having
jurisdiction in the premises shall have been entered approving as properly
filed a petition seeking reorganization, arrangement, adjustment, or
composition of the Transferor under any other similar applicable Federal law;
or a decree or order of a court having jurisdiction in the premises for the
appointment of a custodian, receiver, liquidator, trustee, assignee,
sequestrator or other similar official in bankruptcy or insolvency of the
Transferor or of any substantial part of its property, or for the winding up
or liquidation of its affairs, shall have been entered;
(f) any Lien, other than Liens permitted under this
Agreement, the Indenture, the Origination Trust Agreement or the 1998-A SUBI
Supplement, the Servicing Agreement or the 1998-A Servicing Supplement, or the
Backup Security Agreement, shall be created on or extend to or otherwise arise
upon or burden the 1998-A SUBI Interest, the 1998-A SUBI Certificate, or the
1998-A Leases or 1998-A Leased Vehicles, or any part thereof or any interest
therein or the proceeds thereof, and not be released or bonded over within 60
days thereafter;
50
(g) the Transferor, the Trust or the Origination Trust shall
become subject to registration as an "investment company" under the Investment
Company Act;
(h) on the twenty-fifth calendar day of any calendar month
(commencing December 25, 1998) the aggregate amount of Principal Collections
(and amounts treated as Principal Collections pursuant to the last sentence of
Section 3.03(b)) collected through the last day of the related Collection
Period that have not been reinvested in new 1998-A Leases and 1998-A Leased
Vehicles, as contemplated by Section 11.02 of the 1998-A SUBI Supplement,
exceeds $1,000,000;
(i) a 1998-A Servicer Event of Default has occurred;
(j) an Indenture Event of Default has occurred;
(k) on any Distribution Date the aggregate amount withdrawn
from the Reserve Fund and deposited in the Distribution Account on or prior to
such Distribution Date (without reference to any subsequent deposits to the
Reserve Fund from any source) exceeds $[___];
(l) any 1998-A Leased Vehicle shall no longer be covered by
(i) the Residual Value Insurance Policy, (ii) one or more policies with
substantially similar coverage and provisions issued by an insurer acceptable
to each Rating Agency (as evidenced by a letter from each to the effect that
such change would not result in its then-current rating of any Rated
Securities being qualified, reduced or withdrawn); provided that the
Origination Trustee, the Indenture Trustee and the Owner Trustee shall at all
times have the same rights with respect to any replacement policy as with
respect to the original policy, or (iii) any alternative mechanism to support
the Booked Residual Value of such 1998-A Leased Vehicle that has been approved
in accordance with the procedures set forth in Section 9.01 for the amendment
hereof;
(m) the failure of the Class A Swap Counterparty to make a
required payment within five calendar days of the date such payment was due;
or
(n) the failure of the Servicer or the Class A Swap
Counterparty, within 30 calendar days of the date on which the counterparty
ratings of the Class A Swap Counterparty is reduced or withdrawn below (1) AA-
by Standard & Poor's, (2) Aa3 by Xxxxx'x or (3) AA- by Fitch, if the Class A
Swap Counterparty is rated by Fitch, to (i) obtain a replacement interest rate
swap agreement with terms substantially the same as the Class A Interest Rate
Swap Agreement or (ii) establish any other arrangement satisfactory to the
applicable Rating Agency, in any case such that the Rating Agency will not
reduce or withdraw its rating of any Class of the Class A Notes,
then (but in the case of any event described in subparagraph (a),
(b), (c), (f), (g), (m) or (n) after any applicable grace period) an early
amortization event (an "Early Amortization Event") shall have occurred.
ARTICLE NINE. MISCELLANEOUS PROVISIONS
Section 9.01. Amendment.
(a) This Agreement and the other Transaction Documents may
be amended by the respective parties thereto, without the consent of any of
the Noteholders, to cure any ambiguity, to correct or supplement any
provisions herein or therein, to add, change or eliminate any other provisions
hereof or thereof with respect to matters or questions arising hereunder or
thereunder that shall not be inconsistent with the provisions hereof or
thereof, or to add or amend any provision therein in connection with
permitting transfers of the Class B Notes; provided, however, that any such
action shall not, in the good faith judgment of the parties hereto or thereto,
adversely affect in any material respect the
51
interests of the Noteholders, and the Origination Trustee and the Indenture
Trustee shall have received an Opinion of Counsel to the effect that such
action shall not affect the legal interests or positions of the Noteholders.
(b) This Agreement and the other Transaction Documents may
also be amended from time to time by the respective parties hereto or thereto
including with respect to (i) changing the formula for determining the Reserve
Fund Cash Requirement, the Reserve Fund Supplemental Requirement, the RV
Insurer Reserve Fund Supplemental Requirement and/or the Downgrade Reserve
Fund Supplemental Requirement (including changing the Reserve Fund Tests)
which change would result in a decrease in the amount of the Reserve Fund Cash
Requirement, the Reserve Fund Supplemental Requirement, the RV Insurer Reserve
Fund Supplemental Requirement and/or the Downgrade Reserve Fund Supplemental
Requirement, (ii) changing the manner by which the Reserve Fund is funded,
which changes could include borrowings by the Transferor to fund all or a
portion of the Reserve Fund Initial Deposit (which borrowings would be payable
from assets or cash flow otherwise payable to the Transferor), (iii) changing
the remittance schedule for collection deposits in the Distribution Account,
(iv) changing the definition of "Permitted Investments", or (v) replacing the
Residual Value Insurance Policy with an alternate mechanism to support the
Booked Residual Value of the 1998-A Leased Vehicles and Early Termination
Amounts, if either (A) the Indenture Trustee has been furnished with
confirmation (written or oral) from each Rating Agency to the effect that such
amendment would not cause its then-current rating of any Rated Securities to
be qualified, reduced or withdrawn, or (B) the Indenture Trustee has received
the consent of the Holders of Notes representing more than 50% of the
aggregate Percentage Interests, acting as a single Class (which consent of any
Holder of a Note given pursuant to this Section or pursuant to any other
provision of this Agreement shall be conclusive and binding on such Holder and
on all future Holders of such Note and of any Note issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon the Note); provided, however, that: (1) any
amendment (x) eliminating the Reserve Fund or the Residual Value Insurance
Policy, (y) reducing the Reserve Fund Cash Requirement to less than the lesser
of the Reserve Fund Initial Deposit and the Note Balance as of the related
Distribution Date (after giving effect to reductions in the Note Balance on
such Distribution Date), or (z) eliminating or reducing the RV Insurer Reserve
Fund Supplemental Requirement, shall also require that the Indenture Trustee
and each Rating Agency receive an Opinion of Counsel to the effect that, after
such amendment, for Federal income tax purposes the Class A Notes will
properly be characterized as indebtedness that is secured by the assets of the
Trust; (2) with respect to an amendment replacing the Residual Value Insurance
Policy with an alternate mechanism, the Servicer also shall have provided to
the Indenture Trustee and the Origination Trustee an Officer's Certificate to
the effect that the 1998-A Leases may properly be treated as finance leases
for purposes of generally accepted accounting principles, consistently
applied, by virtue of some reason other than maintenance of that policy, and
describing such reasons (which shall be in accordance with generally accepted
accounting principles, consistently applied); and (3) no such amendment shall
(y) except as otherwise provided in Section 9.01(a), increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on the 1998-A SUBI or any 1998-A SUBI Certificate or distributions
that shall be required to be made on any Note or the applicable Note Rate or
(z) reduce the aforesaid percentage of the aggregate Percentage Interest of
the Notes of each Class required to consent to any such amendment, without the
consent of the Holders of all Notes of such Class then outstanding.
(c) The Indenture Trustee shall provide each Rating Agency
prior notice of any proposed amendment hereto and copies of an Opinion of
Counsel, if relevant, whether or not such amendment requires its approval. Any
notice of any such amendment or modification as to which notice is required to
be given to any Rating Agency shall contain both the substance and substantial
form of the proposed amendment or modification.
(d) Promptly after the execution of any such amendment or
consent, the Indenture Trustee shall furnish written notification of the
substance of such amendment or consent to each
52
Noteholder. It shall not be necessary for the consent of Noteholders pursuant
to Section 9.01(b) to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization by Noteholders of the execution thereof shall be subject to such
reasonable requirements as the Indenture Trustee may prescribe.
(e) Prior to the execution of any amendment to this
Agreement, the Indenture Trustee and the Owner Trustee shall be entitled to
receive and rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement. The Indenture Trustee
and the Owner Trustee may, but shall not be obligated to, enter into any such
amendment which affects such Trustee's own rights, duties or immunities under
this Agreement or otherwise.
Section 9.02. Protection of Title to Trust.
(a) The Transferor shall execute and file, or cause to be
executed and filed, such financing statements and such continuation and other
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interest of the Noteholders and
the Owner Trustee under this Agreement in the 1998-A SUBI Interest, the 1998-A
SUBI Certificate and in the proceeds thereof. The Transferor shall deliver (or
cause to be delivered) to the Owner Trustee file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing.
(b) The Transferor shall not change its name, identity or
partnership structure in any manner that would, could or might make any
financing statement or continuation statement filed by the Transferor in
accordance with paragraph (a) above seriously misleading within the meaning of
Section 9-402(7) of the UCC, unless it shall have given the Owner Trustee
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) The Transferor shall give the Owner Trustee prior
written notice of any relocation of its principal executive office if, as a
result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly make any such
filing.
(d) The Transferor shall deliver to the Owner Trustee
promptly after the execution and delivery of each amendment to this Agreement,
an Opinion of Counsel either (i) stating that, in the opinion of such Counsel,
all financing statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the interest of the
Owner Trustee in the 1998-A SUBI Interest, and reciting the details of such
filings or referring to prior Opinions of Counsel in which such details are
given, or (ii) stating that, in the opinion of such Counsel, no such action is
necessary to preserve and protect such interest.
(e) The Transferor shall, to the extent required by
applicable law, cause the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes
and Class A-4 Notes to be registered with the Commission pursuant to Section
12(b) or Section 12(g) of the Exchange Act within the time periods specified
in such Sections.
(f) This Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and all of which counterparts shall constitute but one and the same
instrument.
Section 9.03. Limitation on Rights of Transferor.
53
The incapacity, bankruptcy or insolvency of the Transferor shall not
operate to terminate this Agreement or the Trust, nor entitle the Transferor's
legal representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect (except to the extent set forth herein or in the
other Transaction Documents) the rights, obligations and liabilities of the
parties to this Agreement, the other Transaction Documents or any of them.
Section 9.04. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT THAT THE GRANT OF A
SECURITY INTEREST IN ANY ACCOUNT AND THE FUNDS AND PROPERTY THEREIN AND THE
PERFECTION, EFFECT OF PERFECTION, AND PRIORITY OF SUCH SECURITY INTEREST SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS.
Section 9.05. Notices.
All demands, notices and communications under this Agreement shall be
in writing, personally delivered or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (i) in the
case of the Transferor, to the agent for service as specified in this
Agreement, or at such other address as shall be designated by the Transferor
in a written notice to the Owner Trustee and the Indenture Trustee; (ii) in
the case of the Indenture Trustee, at the Corporate Trust Office of the
Indenture Trustee; (iii) in the case of the Owner Trustee, at the Corporate
Trust Office of the Owner Trustee; (iv) in the case of Standard & Poor's, at
00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed
Surveillance Department; (v) in the case of Xxxxx'x, at 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 Attention: ABS Monitoring Department; and (vi) in the
case of Fitch, at Fitch Information Services, 0000 X. Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxx 00000 Attention: Asset Backed Surveillance. Any notice required or
permitted to be mailed to a Noteholder shall be given as provided in Section
1.05 of the Indenture. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or
not the Noteholder shall receive such notice.
Section 9.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Securities or the rights of the Holders thereof.
Section 9.07. Assignment.
Notwithstanding anything to the contrary contained in this Agreement,
except as provided in Section 5.03, this Agreement may not be assigned by the
Transferor without the prior written consent of Holders of Notes evidencing
more than 50% of the aggregate Percentage Interests (acting as a single
Class). The Transferor shall provide a copy of any such assignment to each
Rating Agency.
Section 9.08. Transferor Certificate Nonassessable and Fully Paid.
Except as provided in Section 5.02(b) with regard to the Transferor,
the Transferor shall not be personally liable for obligations of the Trust.
The interest represented by the Transferor Certificate shall be nonassessable
for any losses or expenses of the Trust or for any reason whatsoever, and,
upon the
54
execution and authentication thereof by the Owner Trustee pursuant to Section
4.02, 4.03 or 4.04, the Transferor Certificate is and shall be deemed fully
paid.
Section 9.09. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Further,
all references herein to Persons or entities other than parties hereto shall
be deemed to refer to the successors and permitted assigns of such persons, to
the extent that such construction is reasonably possible; to the extent that
such construction is not reasonably possible, the parties hereto shall amend
this Agreement so as to effect the original intent of the parties as closely
as possible in an acceptable manner.
ARTICLE TEN. AGENT FOR SERVICE
Section 10.01. Agent for Service of Transferor.
The agent for service of process for the Transferor shall be its
Treasurer, at 0000 Xxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxx 00000.
Section 10.02. Agent of Owner Trustee.
The Owner Trustee shall maintain an office or offices or agency or
agencies where notices and demands to or upon the Owner Trustee in respect of
the Transferor Certificate and this Agreement may be served. The initial such
office shall be the Corporate Trust Office. The Owner Trustee shall give
prompt written notice to the Transferor, the Servicer and the Indenture
Trustee of any change in the location of any such office or agency.
[SIGNATURES ON NEXT PAGE]
55
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
WORLD OMNI LEASE SECURITIZATION L.P.,
as Transferor
By: World Omni Lease Securitization
LLC, its general partner
By:
-----------------------------------
Xxxxxxx X. Xxxxxxxxx
Assistant Treasurer
PNC BANK, DELAWARE, not in its individual
capacity except as expressly provided herein,
but solely as Owner Trustee
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
THE BANK OF NEW YORK, as Indenture Trustee
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
56
EXHIBIT A
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE APPLICABLE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE RESOLD OR TRANSFERRED.
WORLD OMNI 1998-A AUTOMOBILE LEASE SECURITIZATION TRUST
AUTOMOBILE LEASE ASSET BACKED TRANSFEROR CERTIFICATE
evidencing the undivided equity interest in the Trust, as defined
below, the property of which includes, among other things, a 100%
interest in a special unit of beneficial interest (the "1998-A SUBI
Interest") in World Omni LT, an Alabama business trust, which 1998-A
SUBI Interest represents a beneficial interest in a pool of retail
lease contracts for new and used automobiles and light duty trucks
(and the related automobiles and light-duty trucks) entered into by
various automobile and light duty truck dealers pursuant to
contractual arrangements with World Omni Financial Corp. and
thereafter assigned to World Omni LT, and which 1998-A SUBI Interest
was originally issued to Auto Lease Finance L.P., and then sold to
World Omni Lease Securitization L.P., and then to the Trust.
(This Certificate does not represent an obligation of, or an interest
in, Auto Lease Finance, Inc., World Omni Lease Securitization, LLC,
World Omni LT, World Omni Financial Corp., or any of their respective
affiliates.)
THIS CERTIFIES THAT WORLD OMNI LEASE SECURITIZATION L.P. (the
"Transferor") is the registered owner of the undivided equity interest in the
World Omni 1998-A Automobile Lease Securitization Trust (the "Trust") formed
by the Transferor. The Trust was created pursuant to a Securitization Trust
Agreement dated as of October 1, 1998 (the "Agreement"), among the Transferor,
PNC Bank, Delaware, a Delaware banking corporation, as trustee (the "Owner
Trustee"), and The Bank of New York, as indenture trustee (the "Indenture
Trustee"). A summary of certain of the pertinent provisions of the Agreement
is set forth below. To the extent not otherwise defined herein the capitalized
terms used herein have the meanings assigned to them in the Agreement.
This Certificate is the Transferor Certificate issued under the
Agreement and designated as the "World Omni 1998-A Automobile Lease
Securitization Trust Automobile Lease Asset Backed Transferor Certificate"
(the "Transferor Certificate"). This Transferor Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Transferor Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The property of the Trust includes, among other things, a 100%
interest in a special unit of beneficial interest (the "1998-A SUBI Interest")
in World Omni LT, an Alabama business trust (the "Origination Trust"), which
1998-A SUBI Interest represents a beneficial interest in, among other things,
a pool of retail automobile and light duty truck lease contracts ("Leases")
and the new and used automobiles and light duty trucks leased thereby ("Leased
Vehicles") (such pool of Leases and Leased Vehicles, the "1998-A SUBI
Portfolio") entered into by various automobile and light duty truck dealers
pursuant to contractual arrangements with World Omni Financial Corp., which
also acts as servicer (in that capacity, the "Servicer") of the 1998-A SUBI
Portfolio. During the Revolving Period, Principal Collections allocable to the
1998-A SUBI Interest generally will be applied towards the allocation to the
1998-A SUBI Portfolio of additional qualifying Leases and Leased Vehicles from
among all other unallocated Leases and Leased Vehicles owned by the
Origination Trust.
A-1
Payments in respect of the 1998-A SUBI Interest will be allocated
between the Notes and this Transferor Certificate and paid to the registered
Holder of this Transferor Certificate as provided in the Agreement.
It is the intention of the Transferor, as the Holder of this
Certificate, that the Notes will be indebtedness for federal, state and local
income and franchise tax purposes and for purposes of any other tax imposed on
or measured by income. The Owner Trustee and the Transferor, as the Holder of
this Certificate, by acceptance of this Certificate, agree to treat the Notes,
for purposes of federal, state and local income or franchise taxes and any
other tax imposed on or measured by income, as indebtedness and to report the
transactions contemplated by the Agreement on all applicable tax returns in a
manner consistent with such treatment.
By accepting this Certificate, the Holder hereof waives any claim to
any proceeds or assets of the Origination Trustee and to all assets of the
Origination Trust other than those from time to time included within the
1998-A SUBI Portfolio as 1998-A SUBI Assets and those proceeds or assets
derived from or earned by such 1998-A SUBI Assets.
In the event that, notwithstanding the statement of intentions and
undertakings set forth in Section 4.12(a) of the Agreement and herein, it is
finally determined that the Notes do not evidence indebtedness of the
Transferor for all income and franchise tax purposes, but rather represent an
equity interest in the assets of the Trust, then the Transferor, as Holder
hereof, agrees (i) to treat the Notes, together with this Certificate, as
representing an interest in a partnership for all tax purposes, (ii) to treat
all payments in respect of such Certificate (to the extent not a return of
capital) as a "guaranteed payment" thereon made pursuant to Section 707(c) of
the Code, and (iii) to allocate all other items of income, gain, deduction,
loss or credit with respect to the assets and operations of the Trust to the
Transferor.
This Certificate does not represent an obligation of, or an interest
in, the Transferor, the Servicer, the Indenture Trustee, the Owner Trustee,
the Origination Trust or any of their respective affiliates. This Certificate
is limited in right of payment to certain collections and recoveries
respecting the 1998-A SUBI Interest and the 1998-A SUBI Certificate, Insured
Residual Value Loss Amounts paid under the Residual Value Insurance Policy and
certain monies on deposit in the Reserve Fund and in certain other accounts,
in each case to the extent and as more specifically set forth in the
Agreement. A copy of the Agreement may be examined during normal business
hours at the Corporate Trust Office of the Owner Trustee, and at such other
places, if any, designated by the Owner Trustee, by the Certificateholder upon
request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholder under the Agreement at
any time by the Transferor, the Servicer, the Indenture Trustee and the Owner
Trustee. In certain limited circumstances, the Agreement may only be amended
with the consent of the Holders of Notes evidencing more than 50% of the
aggregate Percentage Interests of all Notes, voting together as a single
class.
As provided in the Agreement, this Certificate shall be owned by the
Transferor and may not be transferred.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Noteholders of all
amounts required to be paid to them pursuant to the Agreement and the
disposition of all property held as part of the Trust. The Transferor may at
its option purchase the corpus of the Trust at a price specified in the
Agreement, and such purchase of the 1998-A SUBI Interest and the 1998-A SUBI
Certificate and other property of the Trust will effect early retirement of
this Certificate; provided, however, such right of purchase is exercisable
only on the
A-2
Distribution Date following the last day of a Collection Period as of which
the Note Balance shall be less than or equal to ten percent (10%) of the
Initial Note Balance.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Transferor Certificate shall not entitle the Holder hereof to any benefit
under the Agreement or be valid for any purpose.
A-3
IN WITNESS WHEREOF, the Owner Trustee on behalf of the Trust and not
in its individual capacity has caused this Transferor Certificate to be duly
executed.
Dated: November __, 1998 WORLD OMNI 1998-A AUTOMOBILE LEASE
SECURITIZATION TRUST
PNC BANK, DELAWARE, not in its individual
capacity, but solely as Owner Trustee
(SEAL) By:
-------------------------------------
Authorized Officer
A-4
This is the Transferor Certificate referred
to in the within-mentioned Agreement.
PNC BANK, DELAWARE, not in its individual
capacity, but solely as Owner Trustee
By:
-------------------------------------
A-5
EXHIBIT B
[FORM OF]
CERTIFICATE OF TRUST OF
WORLD OMNI 1998-A AUTOMOBILE LEASE SECURITIZATION TRUST
THIS Certificate of Trust of World Omni 1998-A Automobile Lease
Securitization Trust (the "Trust"), dated as of October 1, 1998 is being duly
executed and filed by PNC Bank, Delaware, a Delaware banking corporation, as
trustee, to form a business trust under the Delaware Business Trust Act (12
Del. Code, ss. 3801 et seq.).
1. Name. The name of the business trust formed hereby is WORLD OMNI
1998-A AUTOMOBILE LEASE SECURITIZATION TRUST.
2. Delaware Trustee. The name and business address of the trustee of
the Trust resident in the State of Delaware is PNC Bank, Delaware, 000
Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000-0000.
3. This Certificate of Trust will be effective ____________, 1998.
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
PNC Bank, Delaware, a Delaware banking
corporation, not in its individual
capacity, but solely as owner trustee
of the Trust.
By:
---------------------------------
Name:
--------------------------
Title:
--------------------------
B-1
