Exhibit 10.4
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AUTO LEASE FINANCE L.P.,
VT INC.,
AS TRUSTEE OF WORLD OMNI LT,
AND
FOR CERTAIN LIMITED PURPOSES ONLY
U.S. BANK NATIONAL ASSOCIATION
(FORMERLY KNOWN AS FIRST BANK NATIONAL ASSOCIATION AND
SUCCESSOR TRUSTEE TO BANK OF AMERICA ILLINOIS)
SUPPLEMENT 1998-A TO THE
TRUST AGREEMENT
DATED AS OF OCTOBER 1, 1998
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TABLE OF CONTENTS
Page
RECITALS......................................................................1
Part X. DEFINITIONS...........................................................3
Section 10.01. Definitions..................................................3
Section 10.02. Rights in Respect of 1998-A SUBI............................13
Part XI. CREATION OF 1998-A SUBI.............................................14
Section 11.01. Initial Creation of 1998-A SUBI Portfolio and 1998-A SUBI...14
Section 11.02. Subsequent Additions to 1998-A SUBI Portfolio...............15
Section 11.03. Issuance and Form of the 1998-A SUBI Certificate............16
Section 11.04. Actions and Filings.........................................16
Section 11.05. Termination of 1998-A SUBI..................................17
Section 11.06. Merger or Consolidation of Trustee..........................17
Section 11.07. Representations and Warranties of Trustee...................17
Section 11.08. Other SUBIs.................................................18
Section 11.09. Minimum Net Worth...........................................18
Part XII. SUBI ACCOUNTS......................................................18
Section 12.01. 1998-A SUBI Collection Account..............................18
Section 12.02. 1998-A SUBI Lease Account...................................19
Section 12.03. Servicer Calculations.......................................20
Part XIII. MISCELLANEOUS PROVISIONS..........................................20
Section 13.01. Amendment, Etc..............................................20
Section 13.02. Governing Law...............................................20
Section 13.03. Notices.....................................................21
Section 13.04. Severability of Provisions..................................21
Section 13.05. Effect of Supplement on Trust Agreement.....................21
Section 13.06. Successors and Assigns......................................22
EXHIBITS:
EXHIBIT A - Schedule of 1998-A Leases and 1998-A Leased
Vehicles as of the Initial Cutoff Date...........................A-1
EXHIBIT B - Form of 1998-A SUBI Certificate..................................B-1
EXHIBIT C - Forms of 1998-A Leases ..........................................C-1
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SUPPLEMENT 1998-A TO
TRUST AGREEMENT
SUPPLEMENT 1998-A TO TRUST AGREEMENT (the "Supplement"), dated and
effective as of October 1, 1998, among AUTO LEASE FINANCE L.P., a Delaware
limited partnership ("ALF LP" or, in its capacity as grantor, the "Grantor" and
in its capacity as beneficiary, the "Beneficiary"), VT INC., an Alabama
corporation, as trustee (in such capacity, together with any successor or
permitted assign, the "Trustee"), and for certain limited purposes only, U.S.
BANK NATIONAL ASSOCIATION, a national banking association (formerly known as
First Bank National Association and successor to Bank of America Illinois, an
Illinois banking corporation) (together with any predecessor or successor,
("U.S. Bank").
RECITALS
A. The Grantor, the Trustee and U.S. Bank have entered into that certain
Second Amended and Restated Trust Agreement dated as of July 1, 1994 (amending
and restating that certain original Trust Agreement among Auto Lease Finance,
Inc., a Delaware corporation ("ALFI" or, in its capacity as initial grantor, the
"Initial Grantor"), the Trustee and U.S. Bank dated as of November 1, 1993, and
that certain Amended and Restated Trust Agreement dated as of June 1, 1994 among
the Initial Grantor, the Grantor, the Trustee and U.S. Bank, as amended by that
certain Amendment No. 1 to Second Amended and Restated Trust Agreement dated as
of November 1, 1994 among the same parties and as amended by that certain
Amendment No. 2 to Second Amended and Restated Trust Agreement dated as of
September 23, 1998 among the same parties (as so amended and restated, and as it
may be further amended, supplemented or modified, the "Trust Agreement"),
pursuant to which the Initial Grantor and the Trustee formed World Omni LT, an
Alabama trust (the "Trust"), for the purpose of taking assignments and
conveyances of, holding in trust and dealing in, various Trust Assets (as
defined in the Trust Agreement) in accordance with the Trust Agreement. The
Initial Grantor and World Omni Financial Corp. ("WOFCO"), the sole parent of
ALFI, have entered into that certain Limited Partnership Agreement dated as of
June 1, 1994, as amended and restated by that certain Amended and Restated
Limited Partnership Agreement dated as of July 1, 1994, pursuant to which the
Grantor was created and ALFI contributed to the Grantor all of its right, title
and interest in and to the Trust both as Initial Grantor and as the Initial
Beneficiary thereof.
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 the
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 Trustee, on behalf of the 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, among the same parties (as the same has been amended
and 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, among other things, for the
servicing of the Trust Assets by the Servicer.
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D. The Trust Agreement contemplates that, from time to time the Trustee, on
behalf of the Trust and at the direction of the Beneficiary, will identify and
allocate on the Trust's books and records certain Trust Assets within a separate
SUBI Portfolio (as defined in the Trust Agreement) and create and issue to the
Beneficiary a separate special unit of beneficial interest in the Trust or
"SUBI" (as defined in the Trust Agreement), whose beneficiaries generally will
be entitled to the net cash flow arising from, but only from, the related SUBI
Portfolio (as defined in the Trust Agreement), all as set forth in the Trust
Agreement.
E. The parties hereto desire to supplement the terms of the Trust Agreement
to cause the Trustee to identify and allocate such a SUBI Portfolio (the "1998-A
SUBI Portfolio") and to create and issue to the Beneficiary a SUBI Certificate
(as defined in the Trust Agreement) (such SUBI Certificate, together with any
replacements thereof, the "1998-A SUBI Certificate") that evidences a 100%
beneficial interest in the related SUBI (the "1998-A SUBI"), and to set forth
the terms and conditions thereof.
F. Concurrently herewith, the Beneficiary and World Omni Lease
Securitization L.P. (the "Transferor") are entering into that certain SUBI
Certificate Purchase and Sale Agreement dated as of October 1, 1998 (as it may
be amended, modified or supplemented from time to time, the "SUBI Certificate
Agreement"), pursuant to which the Beneficiary will sell to the Transferor,
without recourse, all of the Beneficiary's right, title and interest in and to
the 1998-A SUBI and the 1998-A SUBI Certificate, all moneys due thereon and paid
thereon or 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 the Beneficiary of an amount equal to the
Aggregate Net Investment Value (as defined in the Securitization Trust
Agreement, as defined below) of the 1998-A SUBI Portfolio as of the Initial
Cutoff Date (as defined below).
G. Also concurrently herewith, and as contemplated by the Servicing
Agreement and the Trust Agreement, the Transferor, PNC Bank, Delaware, as owner
trustee (the "Owner Trustee") and The Bank of New York, as indenture trustee
(the "Indenture Trustee") are entering into that certain Securitization Trust
Agreement dated as of October 1, 1998 (as it may be amended, modified or
supplemented from time to time, the "Securitization Trust Agreement"), pursuant
to which the 1998-A SUBI Certificate representing a 100% beneficial interest in
the 1998-A SUBI will be transferred by the Transferor to the Owner Trustee, in
that capacity, in connection with a Securitized Financing (as defined in the
Trust Agreement).
H. Also concurrently herewith, the Indenture Trustee and the Owner Trustee,
on behalf of the Securitization Trust, are entering into that certain Indenture
dated as of October 1, 1998 (the "Indenture") pursuant to which, among other
things, the Securitization Trust will issue the Notes (as defined in the
Indenture) and the Securitization Trust will grant a security interest to the
Indenture Trustee with respect to all of the assets held by the Securitization
Trust, including the 1998-A SUBI Certificate.
I. Also concurrently herewith, the Trustee, on behalf of the Trust, and the
Servicer also are entering into that certain Supplement 1998-A to Servicing
Agreement dated as of October 1, 1998 (the "Servicing Supplement") pursuant to
which, among other things, 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 Trust Agreement) contemplated by the Securitization Trust Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein contained and in the Trust Agreement, the parties hereto agree to the
following supplemental obligations and provisions with regard to the 1998-A SUBI
Portfolio:
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PART X. DEFINITIONS
Section 10.01. Definitions.
For all purposes of this Supplement, 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
the Trust Agreement, (b) the capitalized terms expressly defined in this
Supplement have the meanings assigned to them in this Supplement 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 Supplement as
a whole and not to any particular article or section within this Supplement, (d)
the term "include" and all variations thereon shall mean "include without
limitation", and (e) the term "or" shall include "and/or".
"Accountant" means a Person qualified to pass upon accounting questions,
whether or not (unless herein required to be Independent) such person shall be
an officer or employee of the Grantor, the Trust or the Transferor or of an
Affiliate thereof.
"Additional Loss Amount" means, with respect to any Collection Period, all
payments (including any indemnification or reimbursement of the Trustee or any
Trust Agent) with respect to Claims by Persons other than the Trustee, the Trust
Agent, the Servicer, the Indenture Trustee, the Owner Trustee, the
Certificateholder, and any other beneficiary of the Trust against or with
respect to the 1998-A SUBI Assets paid during that Collection Period, including
reasonable fees and expenses of attorneys incurred in defending or settling such
Claims, all as allocated by the Trustee pursuant to Section 7.01(c) of the Trust
Agreement, and the amount of reserves for future possible such payments that the
Servicer, on behalf of the Trustee, deems advisable (after consultation with
Independent Accountants) to retain in the 1998-A SUBI Collection Account out of
moneys that otherwise would constitute Collections for that Collection Period.
"Administrative Expense" means any reasonable administrative cost or
expense associated with the Trust, including reasonable fees and expenses of
attorneys and accountants (other than such fees and expenses as constitute an
Additional Loss Amount).
"Advance" means those advances required or permitted to be made by the
Servicer pursuant to Section 9.04 of the Servicing Supplement.
"ALFI" has the meaning set forth in Recital A.
"ALF LLC" has the meaning set forth in Recital B.
"ALF LP" has the meaning set forth in the Preamble.
"Amortization Period" has the meaning set forth in the Securitization Trust
Agreement.
"Backup Security Agreement" means that certain Backup Security Agreement
dated as of October 1, 1998, among WOFCO, the Grantor, the Trustee on behalf of
the Trust, the Transferor and the Securitization Trustee on behalf of the
Securitization Trust, as it may be amended, supplemented or modified from time
to time.
"Bankrupt Lease" means a Lease as to which a voluntary or involuntary case
has commenced against the related Obligor under the federal bankruptcy laws, as
now or hereafter in effect, or under another present or future federal or State
bankruptcy, insolvency or similar laws, after the date of origination of the
related Lease.
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"Beneficiary" has the meaning set forth in the Preamble.
"Capped Contingent and Excess Liability Premiums" means, as of any Deposit
Date, an amount sufficient to pay the premiums then due on the portion of any
Contingent and Excess Liability Insurance Policies allocable to the 1998-A SUBI
Portfolio, provided, however, that to the extent that the portion of such amount
allocable to the 1998-A SUBI Certificate, together with all such portions since
the beginning of the calendar year, exceeds $[___], such portion shall not
constitute a Capped Contingent and Excess Liability Premium but instead shall
constitute an "Uncapped Administrative Expense" (as defined in the
Securitization Trust Agreement).
"Capped Origination Trust Administrative Expenses" means, as of any Deposit
Date, Administrative Expenses with respect to the Trust due on or before such
Deposit Date as are allocable to the 1998-A SUBI Portfolio, but specifically not
including any premiums on any portion of the Contingent and Excess Liability
Insurance Policies allocable to the 1998-A SUBI Portfolio; provided, however,
that to the extent the portion of such Administrative Expenses allocable to the
1998-A SUBI Certificate, together with all such portions since the beginning of
the calendar year, exceeds $100,000, such portion shall not constitute a Capped
Origination Trust Administrative Expense but instead shall constitute an
"Uncapped Administrative Expense" (as defined in the Securitization Trust
Agreement).
"Certificateholder" has the meaning set forth in the Securitization Trust
Agreement.
"Certificate" has the meaning set forth in the Securitization Trust
Agreement.
"Charged-off Lease" means a Lease (a) with respect to which the related
Leased Vehicle has been repossessed and sold or otherwise disposed of, or (b)
the Lease has been written off by the Servicer in accordance with its normal
policies for writing off lease contracts other than with respect to
repossessions and Early Termination Leases.
"Closing Date" means November [ ], 1998.
"Collection Period" means, with respect to any Distribution Date, the
period from and including the first day of the calendar month immediately
preceding the calendar month in which such Distribution Date occurs (or, with
respect to the first Distribution Date, from and including the Initial Cutoff
Date) to and including the last day of the calendar month immediately preceding
the calendar month in which the Distribution Date occurs.
"Collections" means, with respect to any Collection Period, all collections
received on or in respect of the 1998-A Leases and 1998-A Leased Vehicles in
respect of that Collection Period, including the following, but subject to any
limitations set forth therein: (i) Monthly Lease Payments (including amounts
that previously were Payments Ahead but which became due during that Collection
Period, Prepayments, Extension Fees, and any other payment by an Obligor under a
1998-A Lease); (ii) Net Matured Leased Vehicle Proceeds, Net Repossessed Vehicle
Proceeds, and all other Net Liquidation Proceeds; (iii) any Net Insurance
Proceeds not included in Net Liquidation Proceeds; (iv) Advances; and (v) any
Undistributed Transferor Excess Collections with respect to the Distribution
Date occurring during that Collection Period; provided, however, that
Collections (A) shall in no event include proceeds of claims made under the
Residual Value Insurance Policy, and (B) shall in no event include, and shall be
net of, the following, which shall be retained in the 1998-A SUBI Collection
Account or paid to the appropriate party: (1) any portion of any of the
foregoing that represents late payment charges, or collections allocable to
payments to be made by Obligors for payment of insurance premiums, excise taxes
or similar items; (2) Payments Ahead; (3) the amount of all Advances, Matured
Leased Vehicle Expenses, Repossessed Vehicle Expenses and other Liquidation
Expenses, and Insurance Expenses reimbursed pursuant to Section 9.02(g) of the
Servicing Supplement; (4) Additional Loss Amounts; and
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(5) any amounts required to be retained in the 1998-A SUBI Collection Account in
order to maintain that account in good standing.
"Contingent and Excess Liability Insurance Policy" means that certain
policy numbered [___] issued to the Servicer and the Trustee, on behalf of the
Trust, by [___] and that certain policy numbered [___] issued to the Servicer
and the Trustee on behalf of the Trust by [___] and that certain policy numbered
[___] issued to X.X. Family Enterprises, Inc. by [___] with the Origination
Trustee named as an additional insured or loss payee, plus all excess or
umbrella policies from time to time issued with the Origination Trustee named as
an additional insured or loss payee, in each case to the extent applicable to
any 1998-A Lease or 1998-A Leased Vehicle.
"Contract Rights" means all of the Trustee's right, title, and interest in,
to, and under any 1998-A Leases and the proceeds therefrom, which right, title,
and interest include without limitation: the Lease Documents; all Monthly Lease
Payments received on or due on or after the related Cutoff Date; Security
Deposits paid by any Obligor to secure the obligations of such Obligor to the
Obligee in the amount and to the extent provided in the related 1998-A Lease;
partial prepayments and Prepayments (regardless of whether made by the related
Obligor or by any other Person) received on or after the related Cutoff Date and
Matured Leased Vehicle Proceeds, Repossessed Vehicle Proceeds and other
Liquidation Proceeds and Insurance Proceeds received on or after the related
Cutoff Date; subject, however, to the limitations set forth in Section 11.01(a).
"Credit and Collection Policy" means those lease origination and credit and
collection policies and practices of the Servicer as applied by the Servicer
with respect to Leases and Leased Vehicles.
"Cutoff Date" means the Initial Cutoff Date or a Subsequent Cutoff Date, as
the context may require.
"Defaulted Lease" means a Lease (a) as to which any Monthly Lease Payment
or part thereof in excess of $40.00, remains unpaid for more than 90 days from
the original due date for such payment, or (b) that is a Charged-off Lease.
"Delinquent Lease" means, with respect to any Lease as of any Due Date, a
Lease as to which all or any part of a Monthly Lease Payment in excess of $40.00
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 Defaulted
Lease or 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, if applicable, Section 9.02(a) of the Servicing
Supplement).
"Deposit Date" means, with respect to a Collection Period, the Business Day
preceding the related Distribution Date.
"Discount Rate" means 7.75% per annum.
"Discounted Lease" means a 1998-A Lease with a Lease Rate of less than
7.75%.
"Discounted Principal Balance" means (i) with respect to any 1998-A Lease
that is a Discounted Lease, an amount equal to the present value of the sum of
all remaining Monthly Lease Payments on such Lease paid on a timely basis, plus
the Booked Residual Value of the related 1998-A Leased Vehicle, calculated by
discounting such Monthly Lease Payments and Booked Residual Value by the
Discount Rate, and (ii) with respect to any other 1998-A Lease, its Outstanding
Principal Balance at such time.
"Distribution Date" has the meaning set forth in the Securitization Trust
Agreement.
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"Due Date" means, as to any Monthly Lease Payment, the date during each
month upon which such payment is due, which date is specified in the related
1998-A Lease.
"Early Termination Lease" means a 1998-A Lease which is terminated prior to
its Maturity Date by agreement between the Servicer and the Obligor in
connection with the payment (excluding payments in the form of non-cash items)
of less than 100% of the Outstanding Principal Balance of a 1998-A Lease;
provided, however, that such a 1998-A Lease will not constitute an Early
Termination Lease if such deficit is less than $200.00.
"Eligible Account" means either (a) an account that is maintained with a
depository institution or trust company organized under the laws of the United
States or of any State, the commercial paper or other short-term unsecured debt
obligations of which have credit ratings from Moody's at least equal to "P-1"
(so long as Xxxxx'x is a Rating Agency), from Standard & Poor's at least equal
to "A-1" (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,
credit ratings from Fitch at least equal to "F-1" (so long as Fitch is a Rating
Agency); or (b) a segregated trust account bearing a designation clearly
indicating that funds deposited therein are held in trust for the benefit of the
Noteholders, the holders of the 1998-A SUBI Certificate or the
Certificateholder, as the case may be, maintained in the corporate trust
department of a depositary institution or trust company organized under the laws
of the United States or of any State and having corporate trust powers, which
institution or trust company has a rating from Moody's for its long term
deposits of at least Baa3 (so long as Xxxxx'x is a Rating Agency).
"Eligible Lease" means a Lease as to which the following are true as of the
Closing Date or Transfer Date, as applicable (unless otherwise specified below):
(a) that was originated by a Dealer (i) in the ordinary course of its
business, (ii) on a form of Lease attached as Exhibit C, (iii) pursuant to
a form of Dealer Agreement which provides for recourse to the Dealer in the
event of certain defects in the Lease but not for default by the Obligor,
and (iv) in compliance with the Credit and Collection Policy;
(b) which Lease and the related Leased Vehicle are owned by the
Trustee, on behalf of the Trust, free of all Liens (including tax liens,
mechanics' liens and liens that arise by operation of law, but other than
any lien on the title of such Vehicle noted solely to provide for delivery
of title documentation to the Trustee or its designee);
(c) that was originated in compliance with, and complies with, all
material applicable legal requirements, including, to the extent
applicable, the Federal Consumer Credit Protection Act, as amended,
Regulations M and Z of the Board of Governors of the Federal Reserve
System, as amended, all state leasing and consumer protection laws and all
state and federal usury laws;
(d) as to which all material consents, licenses, approvals or
authorizations of, or registrations or declarations with, any governmental
authority required to be obtained, effected or given by the originator of
such Lease in connection with (i) the origination of such Lease, (ii) the
execution, delivery and performance by such originator of such Lease, and
(iii) the acquisition by the Trustee, on behalf of the Trust, of such Lease
and the related Leased Vehicle, have been duly obtained, effected or given
and are in full force and effect as of such date of creation or
acquisition;
(e) that is the legal, valid and binding full-recourse payment
obligation of the Obligor thereunder, enforceable against such Obligor in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws, now or hereafter in effect, affecting the enforcement of
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creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity);
(f) that, to the knowledge of the Servicer, is not subject to any
right of rescission, setoff, counterclaim or any other defense (including
defenses arising out of violations of usury laws) of the Obligor thereof to
payment of the amounts due thereunder, and no such right of rescission,
setoff, counterclaim or other defense has been asserted or threatened;
(g) as to which each of the originator of such Lease, the Servicer and
the Trustee, on behalf of the Trust, have each satisfied all obligations
required to be fulfilled on its part with respect to such Lease and the
related Leased Vehicle;
(h) that is payable solely in United States dollars in the United
States;
(i) the Obligor of which is a Person located in one or more of the 00
xxxxxx xx xxx Xxxxxx Xxxxxx, the District of Columbia or a territory of the
United States and is not (i) ALF LLC (or its predecessor), the Grantor,
World Omni Lease Securitization, LLC (or its predecessor) or the
Transferor, or an Affiliate thereof or (ii) the United States of America or
any state or local government or any agency or political subdivision
thereof;
(j) that requires the Obligor thereunder to maintain insurance against
loss or damage to the related Leased Vehicle under an insurance policy that
names the Trustee, on behalf of the Trust, as loss payee, and the related
Leased Vehicle is covered by the Residual Value Insurance Policy;
(k) the related Leased Vehicle of which is titled in the name of the
Trustee on behalf of the Trust (or properly completed applications for such
title have been submitted to the appropriate titling authority) and all
transfer and similar taxes imposed in connection therewith have been paid;
(l) that arises under a closed-end Lease that (i) requires equal
monthly payments to be made within a fixed time period from the date of
origination of such Lease, such time period to be at least 24 months and no
more than 60 months, and (ii) requires such payments to be made by the
Obligor thereof within 30 days after the billing date for such payment;
(m) that is fully assignable and that does not require the consent of
the Obligor thereunder as a condition to any transfer, sale or assignment
of the rights of the originator under such Lease;
(n) as to which the Booked Residual Value of the related Vehicle does
not exceed the lesser of (i) $60,000, and (ii) the amount reasonably
established by the Servicer consistent with its policies and practices
regarding the setting of residual values as applied with respect to
closed-end retail automobile and light duty truck leases;
(o) that, as of the related Cutoff Date, has not been extended by more
than five months in the aggregate or been otherwise compromised, adjusted
or modified except in accordance with the Credit and Collection Policy;
(p) as to which the Obligor thereof has not made a claim under the
Soldiers' and Sailors' Relief Act of 1940;
(q) that satisfies all applicable requirements of the Credit and
Collection Policy;
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(r) that is not allocated to any other SUBI Portfolio other than the
1998-A SUBI Portfolio;
(s) that, as of the related Cutoff Date, is not a Delinquent Lease, a
Defaulted Lease or a Bankrupt Lease;
(t) that is a finance lease for purposes of generally accepted
accounting principles, consistently applied;
(u) that is a "true lease", as opposed to a lease intended as
security, under the laws of the State in which it was originated;
(v) as to which the Servicer has not exercised any right of set off
against the originating Dealer as contemplated by Section 2.01(b)(ii)(A) of
the Servicing Agreement;
(w) the related Leased Vehicle of which was produced by the original
manufacturer to U.S. specifications and standards, as evidenced by the
vehicle identification number which is within the approved series for the
make and model at the time of origination of the Lease;
(x) the related Leased Vehicle of which has not been used commercially
as a taxi cab, public omnibus, livery, sightseeing conveyance or for any
carrying of goods or passengers for hire; and
(y) which Lease, as of the related Cutoff Date, (i) is written with
respect to a Leased Vehicle that was, at the time of origination of the
Lease, a new vehicle, a dealer demonstrator vehicle driven fewer than 6,000
miles, or a manufacturer's program vehicle; (ii) was originated in the
United States after November 1, 1993 (in the case of Leases allocated to
the 1998-A SUBI Portfolio as of the Initial Cutoff Date) or on or before
[___] (in the case of Leased Vehicles allocated to the 1998-A SUBI
Portfolio as of a Subsequent Cutoff Date); (iii) has a Maturity Date on or
after [___] and no later than [___] (in the case of Leases allocated to the
1998-A SUBI Portfolio as of the Initial Cutoff Date) or no later than [___]
(in the case of Leases allocated to the 1998-A SUBI Portfolio as of a
Subsequent Cutoff Date); and (iv) fully amortizes to an amount equal to the
Booked Residual Value of the related Leased Vehicle based on a fixed Lease
Rate calculated on a constant yield basis and provides for level payments
over its term (except for payment of such Booked Residual Value).
"Extension Fee" means, with respect to any 1998-A Lease that has had its
Maturity Date extended pursuant to the Servicing Agreement and the Servicing
Supplement, any payment required to be made with respect to such 1998-A Lease by
the Obligor in exchange for the extension.
"Grantor" has the meaning set forth in the Preamble.
"Indenture" has the meaning set forth in Recital H.
"Indenture Trustee" has the meaning set forth in Recital G.
"Independent" means, when used with respect to any specified Person, such a
Person who (a) is in fact independent of the Grantor, the Trustee, the
Transferor and any of their respective Affiliates; (b) does not have any direct
financial interest or any material indirect financial interest in the Grantor,
the Trust, the Transferor or any of their respective Affiliates; and (c) is not
connected with the Grantor, the Trust, the Transferor or any of their respective
Affiliates as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions. "Independent" when used with
respect to any Accountant means such an Accountant, who may also be the
Accountant who audits the books
8
of the Grantor, the Trust, the Transferor or any of their respective Affiliates,
who is Independent with respect to the Grantor, the Trustee, the Transferor, and
their respective Affiliates as contemplated by Rule 101 of the Code of
Professional Conduct of the American Institute of Certified Public Accountants.
Whenever it is herein provided that any Independent Person's opinion or
certificate shall be furnished to the Trustee, such Person shall be acceptable
to the Trustee if such opinion or certificate shall state that the signer has
read this direction and that the signer is independent within the meaning
thereof.
"Initial Beneficiary" and "Initial Grantor" shall have the meanings set
forth in the Preamble.
"Initial Cutoff Date" means August 31, 1998.
"Insurance Expenses" means any amount of Insurance Proceeds (a) applied to
the repair of the related 1998-A Leased Vehicle, (b) released to an Obligor in
accordance with the normal servicing procedures of the Servicer, or (c)
representing other related expenses incurred by the Servicer not otherwise
included in Liquidation Expenses and recoverable under the Servicing Agreement
or the Servicing Supplement.
"Insurance Policy" means, with respect to a 1998-A Lease, 1998-A Leased
Vehicle or Obligor, 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.
"Insurance Proceeds" means, with respect to any 1998-A Lease, 1998-A Leased
Vehicle or Obligor, proceeds paid to the Servicer or the Trustee, on behalf of
the Trust, pursuant to an Insurance Policy and amounts paid to the Trustee, on
behalf of the Trust, or the Servicer under any other insurance policy related to
such 1998-A Lease, 1998-A Leased Vehicle or Obligor (including but not limited
to any contingent and excess liability insurance policy maintained by or on
behalf of the Trustee, on behalf of the Trust, but not including the Residual
Value Insurance Policy).
"Interest Collections" means, with respect to any Collection Period, all
Collections received during or allocable to such Collection Period other than
Principal Collections, less the following, which shall be paid to the
appropriate parties or retained in the 1998-A SUBI Collection Account, as
appropriate, in the following order and priority for so long as WOFCO is the
Servicer: (a) Capped Contingent and Excess Liability Premiums, but with regard
to the Investor Percentage (as defined in the Securitization Trust Agreement) of
Interest Collections allocable to the 1998-A SUBI Certificate, only to the
extent such deduction and payment would have the same effect as if it followed
item (iv) of Section 3.03(b) of the Securitization Trust Agreement; (b) Capped
Origination Trust Administrative Expenses, but with regard to the Investor
Percentage of Interest Collections allocable to the 1998-A SUBI Certificate,
only to the extent that such deduction and payment would have the same effect as
if it followed item (iv) of Section 3.03(b) of the Securitization Trust
Agreement and then followed the deduction and payment set forth in clause (a)
above; and (c) the Servicing Fee and any unpaid Servicing Fee with respect to
one or more prior Collection Periods, but with regard to the Investor Percentage
of Interest Collections allocable to the 1998-A SUBI Certificate, only to the
extent that such deduction and payment would be made with the same effect as if
it followed item (xii) of Section 3.03(b) of the Securitization Trust Agreement
and the deductions and payments in clauses (a) and (b) have been made as
indicated. If WOFCO is not the Servicer, the deduction and payment in clause (c)
shall instead be made only to the extent that it would have with the same effect
as if it followed item (v) of Section 3.03(b) of the Securitization Trust
Agreement and the deductions and payments in clauses (a) and (b) of the
preceding sentence have been made as indicated. Without limiting the generality
of the foregoing, Interest Collections with respect to any Collection Period
shall include any excess of Net Matured Leased Vehicle Proceeds for that
Collection Period over the sum of the Booked Residual Values of all Matured
Vehicles sold or otherwise disposed of from Matured Leased Vehicle Inventory
during the Collection Period.
9
"Lease Documents" means, with respect to each 1998-A Lease, the fully
executed 1998-A Lease and any agreement(s) modifying such 1998-A Lease
(including, without limitation, any extension agreement(s) relating to extended
1998-A Lease(s)).
"Lease Rate" means, with respect to each Lease, the implicit rate,
calculated on the basis of an annual percentage rate, included in the
calculation of the Monthly Lease Payment due with respect to such Lease.
"Lien" means any security interest, lien, charge, pledge, equity or
encumbrance of any kind other than tax liens, mechanics' liens and any liens
that attach to the 1998-A SUBI Interest or any other property, as the context
may require, by operation of law.
"Liquidation Expenses" means Matured Leased Vehicle Expenses, Repossessed
Vehicle Expenses, and all other reasonable out-of-pocket expenses incurred by
the Servicer in connection with the attempted realization of the full amounts
due or to become due under any 1998-A Lease, including expenses incurred in
connection with any collection effort (whether or not resulting in a lawsuit
against the Obligor under such 1998-A Lease) or an application or request for
Insurance Proceeds.
"Liquidation Proceeds" means Matured Leased Vehicle Proceeds, Repossessed
Vehicle Proceeds, and all other gross amounts received by the Servicer or the
Trustee, on behalf of the Trust (before reimbursement for Liquidation Expenses)
in connection with the realization of the full amounts due or to become due
under any 1998-A Lease, whether from the proceeds of any collection effort
(whether or not resulting in a lawsuit against the Obligor under such Lease),
receipt of Insurance Proceeds, or collection of amounts due under the Servicing
Agreement (including but not limited to the application of Security Deposits
pursuant to Section 2.04 thereof), the Servicing Supplement (including but not
limited to any amount required to be deposited by the Servicer into the 1998-A
SUBI Collection Account pursuant to Section 8.03 thereof) or otherwise.
"Matured Lease" means any 1998-A Lease that has reached its scheduled
Maturity Date and as to which all scheduled Monthly Lease Payments and other
payments due thereunder have been made.
"Matured Leased Vehicle Expenses" means reasonable out-of-pocket expenses
incurred by the Servicer in connection with the sale or other disposition of a
1998-A Leased Vehicle included in Matured Leased Vehicle Inventory.
"Matured Leased Vehicle Inventory" as of any date means all Matured
Vehicles that first became Matured Vehicles within the three immediately
preceding Collection Periods (or during the months of August, September and
October 1998 in respect of any date during the November 1998 Collection Period,
the months of September and October 1998 and the November 1998 Collection Period
in respect of any date during the December 1998 Collection Period, and the month
of October 1998 and the November and December 1998 Collection Periods in respect
of any date during the January 1999 Collection Period), and that, as of the last
day of the most recent Collection Period have remained unsold and not otherwise
disposed of by the Servicer for no more than two full calendar months and/or
Collection Periods, as applicable.
"Matured Leased Vehicle Proceeds" means gross amounts received by the
Servicer or the Trustee, on behalf of the Trust (before reimbursement for
Matured Leased Vehicle Expenses) in connection with the sale or other
disposition of a 1998-A Leased Vehicle included in Matured Leased Vehicle
Inventory (including any charges for excess mileage and excess wear and use).
"Matured Vehicle" as of any date means any 1998-A Leased Vehicle the
related 1998-A Lease of which has reached its Maturity Date and as to which all
scheduled Monthly Lease Payments and other payments due thereunder have been
made, and which Leased Vehicle has been returned to the Servicer
10
on behalf of the Origination Trustee, on behalf of the Origination Trust,
regardless of the status of the disposition of such 1998-A Leased Vehicle as of
such date.
"Maturity Date" means, with respect to any 1998-A Lease, the date on which
the last scheduled Monthly Lease Payment shall be due and payable, as such date
may be extended pursuant to Section 2.02(b) of the Servicing Agreement and
Section 9.02(a) of the Servicing Supplement.
"Monthly Lease Payment" means, with respect to any Lease, the amount of
each fixed monthly payment payable to the Obligee of such Lease in accordance
with the terms thereof, net of any portion of such monthly payment that
represents late payment charges, Extension Fees or collections allocable to
payments to be made by Obligors for payment of insurance premiums, excise taxes
or similar items.
"Net Insurance Proceeds" means Insurance Proceeds less Insurance Expenses.
"Net Liquidation Proceeds" means Liquidation Proceeds less Liquidation
Expenses.
"Net Matured Leased Vehicle Proceeds" means Matured Leased Vehicle Proceeds
less Matured Leased Vehicle Expenses.
"Net Repossessed Vehicle Proceeds" means Repossessed Vehicle Proceeds less
Repossessed Vehicle Expenses.
"1998-A Lease" has the meaning set forth in Section 11.01(a).
"1998-A Leased Vehicle" has the meaning set forth in Section 11.01(a).
"1998-A SUBI" has the meaning set forth in Recital E.
"1998-A SUBI Asset" has the meaning set forth in Section 11.01(a).
"1998-A SUBI Certificate" has the meaning set forth in Recital E.
"1998-A SUBI Collection Account" means the separate account established and
maintained by the Indenture Trustee as the initial repository of all proceeds
received with respect to all 1998-A SUBI Assets, pursuant to Section 12.01(a).
"1998-A SUBI Lease Account" has the meaning set forth in Section 12.02(a).
"1998-A SUBI Portfolio" has the meaning set forth in Recital E.
"1998-A SUBI Certificate" has the meaning set forth in Recital G.
"Noteholders" has the meaning set forth in the Indenture.
"Notes" has the meaning set forth in the Indenture.
"Obligee" means each Person who is the lessor under a 1998-A Lease or the
assignee thereof, including the Trustee on behalf of the Trust.
"Obligor" means each Person who is the lessee under a Lease.
"Outstanding Principal Balance" means, with respect to any 1998-A Lease as
of any date, an amount equal to (a) the sum of all Monthly Lease Payments
remaining to be made (provided, however,
11
that Payments Ahead received but not yet applied are deemed to be Monthly Lease
Payments remaining to be made), less any unearned finance or other charges
relating to the period beginning after the next succeeding Due Date on such
1998-A Lease (determined in accordance with the actuarial method as applied to
the Lease Rate for such 1998-A Lease in accordance with the Servicer's usual
practices), plus (b) the Booked Residual Value of the related Leased Vehicle.
"Owner Trustee" has the meaning set forth in Recital G.
"Payment Ahead" means any payment of one or more Monthly Lease Payments
(other than in connection with a Prepayment) remitted by an Obligor with respect
to a 1998-A Lease in excess of the Monthly Lease Payment due during such
Collection Period with respect to such 1998-A Lease, which sums the Obligor has
instructed the Servicer to apply to Monthly Lease Payments due in one or more
immediately subsequent Collection Periods.
"Permitted Investments" has the meaning set forth in the Securitization
Trust Agreement.
"Person" means any legal person, including any individual, corporation,
partnership, joint venture, limited liability company, association, joint stock
company, trust, bank, trust company, estate (including any beneficiaries
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"Prepayment" means: (a) payment to the Servicer of 100% of the Outstanding
Principal Balance of a 1998-A Lease (exclusive of any 1998-A Lease referred to
in the definition of the term "Charged-off Lease") or such lesser amount as may
be provided for in such 1998-A Lease, including any related payment of interest,
or (b) payment by the Servicer to the Trustee, on behalf of the Trust, of any
amount required to be deposited by the Servicer into the 1998-A SUBI Collection
Account pursuant to Section 8.03 of the Servicing Supplement.
"Principal Collections" means, with respect to any Collection Period, all
Collections received during or allocable to such Collection Period allocable to
the principal component of any 1998-A Lease (including any payment in respect of
the Booked Residual Value of the related 1998-A Leased Vehicle, but expressly
not including Collections with regard to which a Loss Amount (as defined in the
Securitization Trust Agreement) has already accrued); provided, however, that,
solely for purposes of calculating Principal Collections, the principal portion
of Monthly Lease Payments included in such Collections arising from a Discounted
Lease will be discounted on a present value basis at the Discount Rate.
"Repossessed Vehicle Expenses" means reasonable out-of-pocket expenses
incurred by the Servicer in connection with the sale or other disposition of a
1998-A Leased Vehicle that has been repossessed by the Servicer or has been
returned to the Servicer for sale or other disposition, other than for inclusion
in Matured Leased Vehicle Inventory.
"Repossessed Vehicle Proceeds" means gross amounts received by the Servicer
or the Trustee, on behalf of the Trust (before reimbursement for Repossessed
Vehicle Expenses) in connection with the sale or other disposition of a 1998-A
Leased Vehicle that has been repossessed by the Servicer or has been returned to
the Servicer for sale or other disposition in connection with a Prepayment of
the related 1998-A Lease.
"Revolving Period" means the period from the Initial Cutoff Date to but not
including the earlier of December 1, 1999 and the day on which an Early
Amortization Event (as defined in the Securitization Trust Agreement) occurs.
"Securitization Trust Agreement" has the meaning set forth in Recital G.
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"Securitization Trust Documents" means and includes the Trust Agreement,
the Servicing Agreement, this Supplement, the Servicing Supplement, the SUBI
Certificate Agreement, the Securitization Trust Agreement, the Indenture, the
Backup Security Agreement, the 1998-A SUBI Certificate, the Notes and the
Certificates, as the same may be amended, supplemented or modified from time to
time, and each to the extent that it relates to the 1998-A SUBI (but
specifically not including any such amendment, supplement or modification that
relates only to the UTI or to one or more SUBIs other than the 1998-A SUBI).
"Security Deposit" means, with respect to any 1998-A Lease, the refundable
security deposit specified in such 1998-A Lease.
"Servicer" has the meaning set forth in Recital C.
"Servicer Reimbursement" has the meaning set forth in the Servicing
Supplement.
"Servicing Agreement" has the meaning set forth in Recital C.
"Servicing Fee" has the meaning set forth in the Servicing Agreement, as
modified or waived pursuant to Section 9.06 of the Servicing Supplement.
"Servicing Supplement" has the meaning set forth in Recital I.
"SUBI Certificate Agreement" has the meaning set forth in Recital F.
"Subsequent Cutoff Date" means, with respect to any Lease and Leased
Vehicle allocated to the 1998-A SUBI Portfolio on a Transfer Date, the last day
of the preceding calendar month.
"Transfer Date" means any Business Day in any calendar month following a
Collection Period in the Revolving Period, on or prior to the fifteenth calendar
day of that calendar month (beginning December 1998) specified as such by the
Servicer in its notice and certificate pursuant to Section 8.02(b) of the
Servicing Supplement.
"Transferor" has the meaning set forth in Recital F.
"Trust" has the meaning set forth in Recital A.
"Trust Agreement" has the meaning set forth in Recital A.
"Trustee" has the meaning set forth in the Preamble.
"Unallocated Principal Collections" has the meaning set forth in Section
11.02(d).
"Undistributed Transferor Excess Collections" has the meaning set forth in
the Securitization Trust Agreement.
"U.S. Bank" has the meaning set forth in the Preamble.
"WOFCO" has the meaning set forth in the Recital A.
Section 10.02. Rights in Respect of 1998-A SUBI.
Each holder of a 1998-A SUBI Certificate (including the Owner Trustee) and
each pledgee of a 1998-A SUBI Certificate (including the Indenture Trustee, on
behalf of the Noteholders) is a third-party
13
beneficiary of the Trust Agreement and this Supplement, insofar as they apply to
the 1998-A SUBI and the holders or pledgees of the 1998-A SUBI Certificate.
Therefore, to that extent, references in the Trust Agreement to the ability of
any "holder of a SUBI Certificate", "assignee of a SUBI Certificate" or the like
to take any action shall be deemed to refer to the Owner Trustee acting with the
consent or upon the instruction of the Indenture Trustee acting at its own
instigation or upon the instruction of Noteholders representing more than 50% of
the aggregate Percentage Interests (acting as a single class) during such time
as any Note shall remain outstanding and, if no Notes remain outstanding, shall
be deemed to refer to the Owner Trustee acting at its own instigation or upon
the instruction of the Transferor.
PART XI. CREATION OF 1998-A SUBI
Section 11.01. Initial Creation of 1998-A SUBI Portfolio and 1998-A SUBI.
(a) Pursuant to Section 4.02(a) of the Trust Agreement, the Beneficiary
hereby directs the Trustee to identify and allocate or cause to be identified
and allocated on the books and records of the Trust an initial separate
portfolio of SUBI Assets consisting of Leases, related Leased Vehicles and other
associated Trust Assets to be accounted for and held in trust independently from
all other Trust Assets within the Trust, all of which Trust Assets shall consist
of: (i) Leases that are Eligible Leases as of the Initial Cutoff Date, including
the related Contract Rights and the related Leased Vehicles, with an Aggregate
Net Investment Value (as defined in the Securitization Trust Agreement) as of
the Initial Cutoff Date of $ [___] ; (ii) all other Trust Assets related to the
foregoing, including (A) the 1998-A SUBI Collection Account, including all cash
and Permitted Investments therein and all income from the investment of funds
therein; (B) the Residual Value Insurance Policy and all Contingent and Excess
Liability Insurance Policies to the extent applicable to such Leases and Leased
Vehicles; (C) the right to proceeds from physical damage, credit life and
disability insurance policies, if any, covering such Leases, Leased Vehicles or
Obligors with respect thereto, as the case may be; (D) the right to receive the
proceeds of all Dealer repurchase obligations, if any, relating to any such
Lease or Leased Vehicle; and (E) all proceeds from the conversion, voluntary or
involuntary, of any of the foregoing into cash or other property. Based upon
their identification and allocation by the Servicer pursuant to the Servicing
Supplement, the Trustee hereby identifies and allocates as SUBI Assets the
portfolio of Leases and Leased Vehicles more particularly described on Exhibit A
hereto, and the related Trust Assets described above, each such SUBI Asset to be
identified on the books and accounts of the Trust as belonging to the 1998-A
SUBI Portfolio (such Leases and Leased Vehicles, together with those additional
Leases and Leased Vehicles allocated to the 1998-A SUBI Portfolio during the
Revolving Period, the "1998-A Leases" and the "1998-A Leased Vehicles",
respectively, and, together with those other Trust Assets so allocated either
initially or during the Revolving Period pursuant to Section 2.02 hereof, the
"1998-A SUBI Assets"). In addition to the conveyance of such 1998-A SUBI Assets
to the Trust pursuant to Section 2.01 of the Trust Agreement, the Grantor does
hereby grant to the Trustee a security interest therein, and the Trustee shall
have all of the rights, powers and privileges of a secured party under the UCC.
(b) Also pursuant to Section 4.02(a) of the Trust Agreement, the Trustee
hereby creates a SUBI which shall be known as the "1998-A SUBI". The 1998-A SUBI
shall represent a specific divided beneficial interest solely in the 1998-A SUBI
Portfolio and the 1998-A SUBI Assets.
(c) As required by Section 4.02(d) of the Trust Agreement, the Beneficiary
will certify to the Trustee as of the date of execution and delivery hereof that
(i) the sole pledgee of the Undivided Trust Interest has received prior notice
of the creation of the 1998-A SUBI Portfolio and of the terms and provisions of
(x) this Supplement and (y) the Securitized Financing contemplated by the 1998-A
Securitization Trust Agreement and (ii) after giving effect to the creation of
the 1998-A SUBI, the transfer to the Beneficiary of both the 1998-A SUBI
Certificate and the application by the Beneficiary of the proceeds of that
Securitized Financing, no event of default (matured or unmatured) shall exist
under any Securitized Financing involving a UTI Pledge.
14
Section 11.02. Subsequent Additions to 1998-A SUBI Portfolio.
(a) The Beneficiary hereby directs the Trustee, as of each Transfer Date,
to cause to be (i) identified on the books and records of the Trust from among
all those Leases, Leased Vehicles and other associated Trust Assets then owned
by the Trustee on behalf of the Trust and not allocated to, or reserved for
allocation to, any SUBI (or, in the circumstances contemplated in Section 7.03
of the Trust Agreement or Section 11.02(e) below, acquired by the Trustee on
behalf of the Trust but not yet allocated to, or reserved for allocation to, any
specific Portfolio) and (ii) allocated to the 1998-A SUBI Portfolio effective as
of the relevant Subsequent Cutoff Date as additional 1998-A Leases, 1998-A
Leased Vehicles and 1998-A SUBI Assets, such further Eligible Leases, related
Leased Vehicles and other associated Trust Assets (as described in clauses (i)
and (ii) of the first sentence of Section 11.01(a)) as shall have an aggregate
Discounted Principal Balance of not more than the aggregate amount of all
Principal Collections (and amounts treated as Principal Collections pursuant to
the last sentence of Section 3.03(b)) received from the Initial Cutoff Date
through the end of the most recent Collection Period that have not yet been so
reinvested in additional 1998-A Leases, 1998-A Leased Vehicles and related
1998-A SUBI Assets (as provided in Section 11.08 herein); provided, however,
that (y) after giving effect to such reallocation, no event of default (matured
or unmatured) shall exist under any Securitized Financing involving a UTI
Pledge, and (z) prior to such reallocation, the Servicer shall have provided the
Officer's Certificate required by Section 8.02(b) of the Servicing Supplement.
(b) Pursuant to subsection (a) above, the Trustee agrees, as of each
Transfer Date, to cause the Servicer to identify such further Eligible Leases,
related Leased Vehicles and other associated Trust Assets as described in
Section 11.02(a) and thereafter to allocate them to the 1998-A SUBI Portfolio.
(c) Except in the circumstances set forth in Section 7.03 of the Trust
Agreement or Section 12.02 below, the Trustee shall direct the Servicer,
pursuant to Section 8.02(c) of the Servicing Supplement, effective as of each
Transfer Date, to transfer or cause to be transferred from the 1998-A SUBI
Collection Account to the Lease Funding Account an amount equal to the aggregate
Discounted Principal Balance as of the related Subsequent Cutoff Date of the
1998-A Leases then being added to the 1998-A SUBI Portfolio pursuant to Section
11.02(a) hereof.
(d) To the extent that, for any reason, the additional 1998-A Leases
allocated to the 1998-A SUBI Portfolio on any Transfer Date shall have an
aggregate Discounted Principal Balance, measured as of the Subsequent Cutoff
Date, that is less than the aggregate amount of all Principal Collections (and
amounts treated as Principal Collections pursuant to the last sentence of
Section 3.03(b) of the Securitization Trust Agreement) received since the
Initial Cutoff Date and prior to the termination of the Revolving Period which
have not yet been reinvested in additional 1998-A Leases, 1998-A Leased Vehicles
and related 1998-A SUBI Assets, the balance of such Principal Collections and
other amounts ("Unallocated Principal Collections") shall continue to be
invested and reinvested in Permitted Investments as part of the 1998-A SUBI
Portfolio until the earlier of (i) the reinvestment of such unallocated
Principal Collections on a subsequent Transfer Date and (ii) the start of the
Amortization Period, at which time such funds shall be treated as Principal
Collections collected during the Amortization Period.
(e) In the circumstances set forth in Section 7.03 of the Trust Agreement
or Section 12.02 of this Supplement, the Trustee shall direct the Servicer,
pursuant to Section 8.02(d) of the Servicing Supplement, effective as of each
Transfer Date, to transfer from the 1998-A SUBI Collection Account to the 1998-A
SUBI Lease Account those Principal Collections (and amounts treated as Principal
Collections pursuant to the last sentence of Section 3.03(b) of the
Securitization Trust Agreement) received since the Initial Cutoff Date that have
not yet been reinvested in additional 1998-A Leases, 1998-A Leased Vehicles and
related 1998-A SUBI Assets, to be applied in accordance with Section 7.03 of the
Trust Agreement.
15
(f) Neither any interest in the 1998-A SUBI nor the 1998-A SUBI Certificate
may be transferred or assigned by the Beneficiary, and any such purported
transfer or assignment shall be deemed null, void and of no effect herewith,
provided, however, that (i) the 1998-A SUBI and the 1998-A SUBI Certificate may
be sold to the Transferor pursuant to the SUBI Certificate Agreement, and (ii)
the 1998-A SUBI Certificate and the interest in the 1998-A SUBI represented
thereby may be assigned by the Transferor absolutely or a security interest
therein granted in connection with a Securitized Financing, in each case in the
circumstances contemplated in Section 4.02(c) of the Trust Agreement. Such a
transfer is registrable upon surrender of the relevant 1998-A SUBI Certificate
for registration of transfer at the corporate trust office of the Trustee (or
the Trust Agent, if applicable) or by any successor Trustee, accompanied by a
written instrument of transfer in form satisfactory to the Trustee duly executed
by the holder thereof or such holder's attorney duly authorized in writing, and
thereupon one or more new 1998-A SUBI Certificates of a like aggregate
fractional undivided interest will be issued to the designated permitted
transferee.
Section 11.03. Issuance and Form of the 1998-A SUBI Certificate.
(a) The 1998-A SUBI shall be represented by the 1998-A SUBI Certificate
representing a 100% beneficial interest in the 1998-A SUBI and the 1998-A SUBI
Portfolio, as further set forth herein. The 1998-A SUBI Certificate shall be
substantially in the form of Exhibit B attached hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required by
this Supplement and may have such letters, numbers or other marks of
identification and such legends and endorsements placed thereon as may,
consistently herewith and with the Trust Agreement, be directed by the
Beneficiary. Any portion of the 1998-A SUBI Certificate may be set forth on the
reverse thereof, in which case the following reference to the portion of the
text on the reverse shall be inserted on the face thereof, in relative proximity
to and prior to the signature of the Trustee executing such certificate:
"Reference is hereby made to the further provisions of this
SUBI Certificate set forth on the reverse hereof, which
provisions shall for all purposes have the same effect as if
set forth at this place."
The 1998-A SUBI Certificate shall be printed, lithographed, typewritten,
mimeographed, photocopied or otherwise produced or may be produced in any other
manner as may, consistently herewith and with the Trust Agreement, be determined
by the Beneficiary.
(b) As required by Section 4.02(b) of the Trust Agreement, the 1998-A SUBI
Certificate shall contain an express written waiver of any claim by any holder
thereof or owner of a beneficial interest or security interest therein to any
proceeds or assets of the Trustee and to all of the Trust Assets 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.
(c) It is the intention of the parties to this Agreement that the 1998-A
SUBI Certificate be governed by Article 8 of the Uniform Commercial Code as in
effect in any relevant jurisdiction.
Section 11.04. Actions and Filings.
The Beneficiary hereby directs the Trustee to enter into the Backup
Security Agreement as a protective device. The Grantor and the Trustee will
undertake all other and future actions and activities as may be deemed
reasonably necessary by the Servicer (pursuant to Section 8.04 of the Servicing
Supplement) to perfect (or evidence) and confirm the foregoing allocations of
Trust Assets to the 1998-A SUBI Portfolio and the backup security interest
therein of the Indenture Trustee, including without limitation filing or causing
to be filed UCC financing statements and executing and delivering all related
16
filings, documents or writings as may be deemed reasonably necessary by the
Servicer hereunder or under any other Securitization Trust Documents (including
the Indenture and the Backup Security Agreement); provided, however, that in no
event will the Grantor or the Trustee be required to take any action to perfect
any security interest that may be held by the Owner Trustee or the Indenture
Trustee in any 1998-A Leased Vehicle. The Grantor hereby irrevocably makes and
appoints each of the Trustee and the Servicer, and any of their respective
officers, employees or agents, as the true and lawful attorney-in-fact of the
Grantor (which appointment is coupled with an interest and is irrevocable) with
power to sign on behalf of the Grantor any financing statements, continuation
statements, security agreements, mortgages, assignments, affidavits, letters of
authority, notices or similar documents necessary or appropriate to be executed
or filed pursuant to this Section.
Section 11.05. Termination of 1998-A SUBI.
In connection with any purchase by the Transferor of the corpus of the
Securitization Trust pursuant to Section 7.02 of the Securitization Trust
Agreement, and the succession of the Transferor to all of the interest in the
1998-A SUBI represented by the 1998-A SUBI Certificate, should all of the
interest in the 1998-A SUBI thereafter be transferred to the UTI Holder, whether
by sale or otherwise, then upon the direction of the UTI Holder the 1998-A SUBI
shall be terminated, the 1998-A SUBI Certificate shall be returned to the
Trustee and canceled thereby, and (pursuant to Section 12.01(a) of the Servicing
Supplement) the Servicer shall reallocate all 1998-A Leases, 1998-A Leased
Vehicles and related 1998-A SUBI Assets to the UTI Portfolio.
Section 11.06. Merger or Consolidation of Trustee.
The Trustee shall give notice to each Rating Agency (as defined in the
Securitization Trust Agreement) prior to effecting any merger, consolidation, or
other transaction set forth in Section 6.05 of the Trust Agreement.
Section 11.07. Representations and Warranties of Trustee.
The Trustee hereby makes the following representations and warranties on
which the Grantor and Beneficiary, each of their permitted assignees and
pledgees, and each pledgee or holder of a 1998-A SUBI Certificate (and
beneficial owner of any portion thereof in connection with a Securitized
Financing, including the Owner Trustee, the Indenture Trustee and the
Noteholders) may rely:
(a) Organization and Good Standing. The Trustee is a corporation, duly
organized, validly existing and in good standing under the law of the State of
Alabama and is qualified to do business as a foreign corporation and is in good
standing in each of Florida, Georgia, North Carolina and South Carolina;
(b) Power and Authority. The Trustee has full power, authority and
right to execute, deliver and (assuming that the filings set forth on Schedule A
to the Trust Agreement are sufficient to allow the Trustee to act as a trustee
with respect to the Trust Assets and otherwise perform this Supplement in each
of Alabama, Florida, Georgia, North Carolina, South Carolina, California,
Illinois, New Jersey, and Pennsylvania, and in all material respects in any
other jurisdiction) perform this Supplement (in all material respects outside of
the nine states set forth above) and has taken all necessary action to authorize
the execution, delivery and performance by it of this Supplement;
(c) Due Execution. This Supplement has been duly executed and
delivered by the Trustee, and is a legal, valid and binding instrument
enforceable against the Trustee in accordance with its terms;
17
(d) No Conflict. Neither the execution and delivery of this Supplement
nor the consummation of the transactions herein contemplated, nor compliance
with the provisions hereof, will conflict with or result in a breach of, or
constitute a default (with notice or passage of time or both) under any
provision of any law, governmental rule, regulation, judgment, decree or order
binding on the Trustee or the articles of incorporation or bylaws of the Trustee
or any provision of any mortgage, indenture, contract, agreement or other
instrument to which the Trustee is a party or by which it is bound; and
(e) Single Purpose. The Trustee has not engaged, is not currently
engaged, and will not engage during the term of this Agreement in any other
activity other than serving as Trustee and in such ancillary activities as are
necessary and proper in order to act as Trustee in accordance with the Trust
Agreement and this Supplement.
Section 11.08. Other SUBIs.
The Trustee will not create any SUBI other than the 1998-A SUBI during the
Revolving Period unless the Trustee has received from the Servicer an Officer's
Certificate certifying that the creation of such other SUBI would not cause an
Early Amortization Event (as defined in the Securitization Trust Agreement). In
the event that the Trustee at any time during the Revolving Period also is
allocating Trust Assets to one or more other SUBIs pursuant to similar revolving
periods (from the Trust Assets generally, not from blocks of Trust Assets
reserved for allocation to particular SUBIs), the Trustee first shall allocate
available Trust Assets to SUBIs created prior to the 1998-A SUBI before
allocating Trust Assets to the 1998-A SUBI.
Section 11.09. Minimum Net Worth.
Notwithstanding anything to the contrary in Section 4.03 of the Trust
Agreement, the Grantor (or if Grantor is a partnership, the general partner of
Grantor) shall at all times maintain a minimum net worth of $10 million.
PART XII. SUBI ACCOUNTS
Section 12.01. 1998-A SUBI Collection Account.
(a) The Servicer on behalf of the Trustee shall establish and maintain with
respect to the 1998-A SUBI a "1998-A SUBI Collection Account" in the name of the
Indenture Trustee, for the benefit of the holders of the Notes and the holder of
1998-A SUBI Certificate, which account shall constitute a SUBI Collection
Account. The 1998-A SUBI Collection Account initially shall be established with
the Indenture Trustee, and at all times shall be an Eligible Account. In the
event that the Indenture Trustee no longer meets the requirements stated in the
definition of "Eligible Account", then the Servicer shall, with the Trustee's
assistance as necessary, cause the 1998-A SUBI Collection Account to be moved to
a bank or trust company that satisfies those requirements. The 1998-A SUBI
Collection Account shall relate solely to the 1998-A SUBI and the 1998-A SUBI
Portfolio, and funds therein shall not be commingled with any other moneys,
except as otherwise provided for or contemplated in the Trust Agreement as
supplemented by this Supplement or in the Servicing Agreement as supplemented by
the Servicing Supplement. All amounts held in the 1998-A SUBI Collection Account
shall be invested in Permitted Investments in accordance with Section 7.01(d) of
the Trust Agreement, Section 11.02(d) hereof and Section 8.03 of the Indenture
until distributed or otherwise applied in accordance with the Trust Agreement or
this Supplement. The Trustee hereby grants a security interest in the 1998-A
SUBI Collection Account, and all Permitted Investments therein and all proceeds
of the foregoing, to the Indenture Trustee for the benefit of the holders of the
Notes.
18
(b) On each Deposit Date the Indenture Trustee shall transfer or cause the
transfer of all Principal Collections and Interest Collections in the 1998-A
SUBI Collection Account with respect to the related Collection Period to the
holder of the 1998-A SUBI Certificate (and more particularly, to the
Distribution Account); provided, however, that on each Deposit Date related to a
Collection Period in the Revolving Period, the Indenture Trustee shall withhold
from any such transfers all Principal Collections, all of which shall be applied
solely as provided for in Section 11.02 hereof. After the last Deposit Date
related to a Collection Period in the Revolving Period, Principal Collections
shall be included in calculating and making any such transfers.
(c) The Trustee shall provide in the Servicing Supplement that the Servicer
shall prepare all such calculations and provide for all such transfers as are
provided for in this Section 12.01.
(d) Any transfer to the holder of the 1998-A SUBI Certificate shall be made
as directed pursuant to the Securitization Trust Documents.
(e) Notwithstanding Section 7.01(b) of the Trust Agreement and Section 2.02
of the Servicing Agreement, the Trustee may provide in the Servicing Supplement
that, in the event the Servicer provides to the Beneficiary, the Transferor, the
Trustee, the Owner Trustee and the Indenture Trustee a letter from each Rating
Agency to the effect that the utilization by the Servicer of an alternative
remittance schedule with respect to collections arising out of the 1998-A SUBI
Portfolio to be deposited in the 1998-A SUBI Collection Account pursuant to
Section 2.02(c) or (d) of the Servicing Agreement (including but not limited to
the use of an alternative remittance schedule pursuant to which the obligations
of the Servicer to make such remittances are secured by a Servicer Letter of
Credit (as defined in such Servicing Supplement) satisfactory to each such
Rating Agency (as defined in the Securitization Trust Agreement)) will not
result in a qualification, downgrading or withdrawal of the then-current rating
assigned to the Rated Securities (as defined in the Securitization Trust
Agreement) by such Rating Agency, (i) the Servicing Supplement may be so
modified without the consent of any Noteholders pursuant to Section 12.02
thereof and (ii) the Servicer may remit such collections to the 1998-A SUBI
Collection Account in accordance with that alternative remittance schedule.
(f) Notwithstanding Section 5.05 or 7.01(c) or any other provision of the
Trust Agreement, the rights of the Trustee to be indemnified or reimbursed for
Administrative Expenses of the Trust incurred in connection with or allocated to
the 1998-A SUBI shall be limited to those Capped Origination Trust
Administrative Expenses as may be deducted from Collections in accordance with
the definition of "Interest Collections", any reimbursement of Uncapped
Administrative Expenses (as defined in the Securitization Trust Agreement) as
may be available pursuant to Section 3.03(b) of the Securitization Trust
Agreement, any advance of Administrative Expenses as may be available pursuant
to Section 9.05(a) of the Servicing Supplement, and any indemnity as may be
available pursuant to Section 2.07(g) of the Servicing Agreement.
Section 12.02. 1998-A SUBI Lease Account.
(a) In the circumstances set forth in Section 7.03 of the Trust Agreement,
the Trustee shall establish and maintain with respect to the 1998-A SUBI a
"1998-A SUBI Lease Account" in the name of the Indenture Trustee, for the
benefit of the holders of the Notes and the holder of the 1998-A SUBI
Certificate, which account shall constitute a SUBI Lease Account. Any 1998-A
SUBI Lease Account initially shall be established with the Indenture Trustee and
at all times shall be an Eligible Account. In the event that the Indenture
Trustee no longer meets the requirements stated in the definition of "Eligible
Account", then the Servicer shall, with the Indenture Trustee's assistance as
necessary, cause the 1998-A SUBI Lease Account to be moved to a bank or trust
company that satisfies those requirements. The 1998-A SUBI Lease Account shall
relate solely to the 1998-A SUBI and the 1998-A SUBI Portfolio, and funds
therein shall not be commingled with any other moneys, except as otherwise
provided for or contemplated in the Trust Agreement as supplemented by this
Supplement
19
or in the Servicing Agreement as supplemented by the Servicing Supplement. All
amounts held in the 1998-A SUBI Lease Account shall be invested in Permitted
Investments in accordance with Section 7.01(d) of the Trust Agreement, Section
11.02(d) hereof and Section 8.03 of the Indenture until distributed or otherwise
applied in accordance with the Trust Agreement or this Supplement. The Trustee
hereby grants a security interest in any 1998-A SUBI Lease Account, and all
Permitted Investments therein and all proceeds of the foregoing, to the
Indenture Trustee for the benefit of the holders of the Notes.
(b) All transfers of funds into and out of the 1998-A SUBI Lease Account
shall be made in accordance with Section 7.03 of the Trust Agreement.
Section 12.03. Servicer Calculations.
Neither the Trustee nor the Indenture Trustee shall be under any obligation
to recalculate or reverify any calculations made by the Servicer with respect to
any amounts to be transferred by the Indenture Trustee pursuant to this Part
XII.
PART XIII. MISCELLANEOUS PROVISIONS
Section 13.01. Amendment, Etc.
(a) Notwithstanding Section 9.01 of the Trust Agreement, the Trust
Agreement, as supplemented by this Supplement, to the extent that it deals
solely with the 1998-A SUBI and the 1998-A SUBI Portfolio, may be amended from
time to time only in a writing signed by the Trustee and the Beneficiary (and by
U.S. Bank to the extent that any such amendment affects it as Trust Agent), with
the prior written consent of the Indenture Trustee and the Owner Trustee (which
shall be given only in the circumstances contemplated by Section 9.01 of the
Securitization Trust Agreement).
(b) ALF LP shall provide each Rating Agency (as defined in the
Securitization Trust Agreement) prior notice of the content of any proposed
amendment to the Trust Agreement, whether or not such amendment relates to the
1998-A SUBI or requires approval by any Rating Agency.
(c) No resignation or removal of the Trustee pursuant to Section 6.03 of
the Trust Agreement shall be effective unless and until each Rating Agency has
confirmed, in writing, that such resignation or removal would not cause it to
downgrade, withdraw, or otherwise adversely modify its then-current rating of
the Rated Notes.
(d) The holder from time to time of the Trustee Stock pursuant to Section
6.10 of the Trust Agreement shall at all times be a corporation, trust company
or bank 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 such holder 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 such holder shall cease to be eligible in
accordance with the provisions of this subsection (d), it will immediately so
notify the Beneficiary in the manner and with the effect specified in Section
6.10(b) of the Trust Agreement.
Section 13.02. Governing Law.
20
THIS SUPPLEMENT SHALL BE CREATED UNDER AND GOVERNED BY AND CONSTRUED UNDER
THE INTERNAL LAWS OF THE STATE OF ALABAMA, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
Section 13.03. Notices.
The notice provisions of Section 9.03 of the Trust Agreement shall apply
equally to this Supplement, provided, that any notice to the Indenture Trustee
shall be addressed as follows:
The Bank of New York
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Office
and any notice to the Owner Trustee shall be addressed as follows:
PNC Bank, Delaware
000 Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Mr. Xxxxxxx XxXxxxxx, Corporate Trust Department
A copy of each notice or other writing required to be delivered to the
Trustee pursuant to the Trust Agreement or this Supplement also shall be
delivered to the Owner Trustee and the Indenture Trustee.
Section 13.04. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Supplement 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 Supplement and
shall in no way affect the validity or enforceability of the other provisions of
this Supplement or of the 1998-A SUBI Certificate or the rights of the holder
thereof. To the extent permitted by law, the parties hereto waive any provision
of law that renders any provision of this Supplement invalid or unenforceable in
any respect.
Section 13.05. Effect of Supplement on Trust Agreement.
(a) Except as otherwise specifically provided herein: (i) the parties shall
continue to be bound by all provisions of the Trust Agreement; and (ii) the
provisions set forth herein shall operate either as additions to or
modifications of the already-extant obligations of the parties under the Trust
Agreement, as the context may require. In the event of any conflict between the
provisions of this Supplement and the Trust Agreement with respect to the 1998-A
SUBI, the provisions of this Supplement shall prevail.
(b) For purposes of determining the parties' obligations under this
Supplement with respect to the 1998-A SUBI, general references in the Trust
Agreement to: (i) a SUBI Account shall be deemed to refer more specifically to
the 1998-A SUBI Account; (ii) a SUBI Asset shall be deemed to refer more
specifically to a 1998-A SUBI Asset; (iii) an appropriate or applicable SUBI
Collection Account shall be deemed to refer more specifically to the 1998-A SUBI
Collection Account; (iv) an appropriate or applicable SUBI Lease Account shall
be deemed to refer more specifically to a 1998-A SUBI Lease Account; (v) a SUBI
Portfolio shall be deemed to refer more specifically to the 1998-A SUBI
Portfolio;
21
(vi) a SUBI Supplement shall be deemed to refer more specifically to this
Supplement; and (vii) a SUBI Servicing Agreement Supplement shall be deemed to
refer more specifically to the Servicing Supplement.
Section 13.06. Successors and Assigns.
The Trust Agreement and this Supplement, insofar as they relate to the
1998-A SUBI Portfolio, shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, the
Trustee on behalf of the Trust, and the Securitization Trustee. 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
Supplement so as to effect the original intent of the parties as closely as
possible in an acceptable manner.
[SIGNATURES ON NEXT PAGE]
22
IN WITNESS WHEREOF, the Grantor, the Trustee, and (solely for the limited
purposes set forth in Sections 5.03(e), 6.10 and 9.03 of the Trust Agreement)
U.S. Bank, have caused this Supplement to be duly executed by their respective
officers as of the day and year first above written.
AUTO LEASE FINANCE, L.P., Grantor and Beneficiary
By: Auto Lease Finance LLC, its general partner
By:___________________________
Xxxxxxx X. Xxxxxxxxx
Assistant Treasurer
VT INC., as Trustee
By:___________________________
Name:______________________
Title:_____________________
U.S. BANK NATIONAL ASSOCIATION, as Trust Agent
By:___________________________
Name:______________________
Title:_____________________
THE BANK OF NEW YORK, as Indenture Trustee
By:___________________________
Name:______________________
Title:_____________________
WORLD OMNI LEASE SECURITIZATION L.P., assignee
of Beneficiary (solely to acknowledge the
provisions hereof)
By: World Omni Lease Securitization LLC, its
general partner
By:___________________________
Xxxxxxx X. Xxxxxxxxx
Assistant Treasurer
23
COUNTY OF [ ] )
)
STATE OF [ ] )
I, the undersigned, a Notary Public in and for said County, in said State,
hereby certify that Xxxxxxx X. Xxxxxxxxx, whose name as Assistant Treasurer of
Auto Lease Finance LLC, a Delaware limited liability company, in its capacity as
the general partner of Auto Lease Finance, L.P., a Delaware limited partnership,
is signed to the foregoing instrument, and who is known to me, acknowledged
before me on this day, that, being informed of the contents thereof, he, as such
officer and with full authority, executed the same voluntarily for and as the
act of said corporation, acting in its capacity as general partner as aforesaid.
Given under my hand and official seal, this the ___ day of __________,
1998.
(SEAL) NOTARY PUBLIC
My Commission Expires: __________
24
COUNTY OF [ ] )
)
STATE OF [ ] )
I, the undersigned, a Notary Public in and for said County, in said State,
hereby certify that Xxxxxxx X. Xxxxxxxxx, whose name as Assistant Treasurer of
World Omni Lease Securitization LLC, a Delaware limited liability company, in
its capacity as the general partner of World Omni Lease Securitization, L.P., a
Delaware limited partnership, is signed to the foregoing instrument, and who is
known to me, acknowledged before me on this day, that, being informed of the
contents thereof, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation, acting in its capacity as
general partner as aforesaid.
Given under my hand and official seal, this the ___ day of __________,
1998.
(SEAL) NOTARY PUBLIC
My Commission Expires: __________
25
COUNTY OF [ ] )
)
STATE OF [ ] )
I, the undersigned, a Notary Public in and for said County, in said State,
hereby certify that _________________________, whose name as
_________________________ of VT Inc., an Alabama corporation, is signed to the
foregoing instrument, and who is known to me, acknowledged before me on this
day, that, being informed of the contents thereof, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal, this the ___ day of __________,
1998.
(SEAL) NOTARY PUBLIC
My Commission Expires: __________
26
COUNTY OF [ ] )
)
STATE OF [ ] )
I, the undersigned, a Notary Public in and for said County, in said State,
hereby certify that _________________________, whose name as
_________________________ of U.S. Bank National Association, a national banking
association, is signed to the foregoing instrument, and who is known to me,
acknowledged before me on this day, that, being informed of the contents
thereof, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said national banking association.
Given under my hand and official seal, this the ___ day of __________,
1998.
(SEAL) NOTARY PUBLIC
My Commission Expires: __________
27
COUNTY OF [ ] )
)
STATE OF ILLINOIS )
I, the undersigned, a Notary Public in and for said County, in said State,
hereby certify that _________________________, whose name as
_________________________ of The Bank of New York, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day, that,
being informed of the contents thereof, he, as such officer and with full
authority, executed the same voluntarily for and as the act of said national
banking association.
Given under my hand and official seal, this the ___ day of __________,
1998.
(SEAL) NOTARY PUBLIC
My Commission Expires: __________
28
EXHIBIT A
SCHEDULE OF 1998-A LEASES AND
1998-A LEASED VEHICLES AS OF THE INITIAL CUTOFF DATE
[Omitted. Copies on file with the Servicer, the Trustee, the Indenture
Trustee and the Owner Trustee.]
A-1
EXHIBIT B
FORM OF 1998-A SUBI CERTIFICATE
WORLD OMNI LT
SPECIAL UNIT OF BENEFICIAL INTEREST 1998-A CERTIFICATE
evidencing an undivided 100% interest in all 1998-A SUBI Assets (as defined
below).
(This 1998-A SUBI Certificate does not represent an obligation of, or an
interest in, World Omni Financial Corp., Auto Lease Finance LLC, Auto Lease
Finance L.P. or any of their respective affiliates.)
Number 1998-A SUBI-_______________
THIS CERTIFIES THAT __________________________________ is the registered
owner of a nonassessable, fully-paid, undivided interest in the 1998-A SUBI
Assets (such interest, a "1998-A SUBI Interest"), of World Omni LT, an Alabama
business trust (the "Trust") formed by Auto Lease Finance L.P., a Delaware
limited partnership, as grantor ("ALF LP" or, in its capacity as grantor
thereunder, and, together with any successor or assign, the "Grantor"), and VT
Inc., an Alabama corporation, as trustee (the "Trustee"). The Trust was created
pursuant to a Trust Agreement dated and effective as of November 1, 1993, as
amended and restated pursuant to an Amended and Restated Trust Agreement dated
and effective as of June 1, 1994, as further amended and restated pursuant to a
Second Amended and Restated Trust Agreement dated and effective as of July 1,
1994, as further amended by that certain Amendment No. 1 to Second Amended and
Restated Trust Agreement dated as of November 1, 1994, and as further amended by
that certain Amendment No. 2 to Second Amended and Restated Trust Agreement
dated as of September 23, 1998 (as so amended and restated, the "Trust
Agreement"), among the Grantor, ALF LP as the sole initial beneficiary (in such
capacity, and, together with any successor or permitted assign, the
"Beneficiary"), the 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 to Bank of
America Illinois, an Illinois banking corporation) ("U.S. Bank"), as
supplemented by that certain 1998-A Supplement to Trust Agreement dated and
effective as of October 1, 1998 among the Grantor, the Beneficiary, the Trustee,
U.S. Bank, The Bank of New York and World Omni Lease Securitization L.P (the
"Transferor") (the Trust Agreement, as so supplemented, the "Agreement"). A
summary of certain of the pertinent portions of the Agreement is set forth
below. To the extent not otherwise defined herein, the capitalized terms herein
have the meanings set forth in the Agreement.
This 1998-A SUBI Certificate is the duly authorized certificate issued
under the Agreement and designated as "World Omni LT Special Unit of Beneficial
Interest 1998-A Certificate" (the "1998-A SUBI Certificate"). This 1998-A SUBI
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the holder of this 1998-A SUBI
Certificate by virtue of the acceptance hereof assents and by which such holder
is bound. Also to be issued under the Agreement are various other series of SUBI
and UTI Certificates, the first designated as "World Omni LT Undivided Trust
Interest Certificates" (the "Undivided Trust Interest Certificates"), and the
others each designated as "World Omni LT Special Unit of Beneficial Interest
Certificates" (together with the 1998-A SUBI Certificate, the "SUBI
Certificates" and, together with the Undivided Trust Interest Certificates, the
"SUBI & UTI Certificates"). The Undivided Trust Interest Certificates, taken
together, evidence an exclusive, undivided interest in the Trust Assets, other
than SUBI Assets (each as defined below); each other series of SUBI
Certificates, taken together, will evidence an exclusive undivided interest in a
separate SUBI Portfolio (as defined below) other than the 1998-A SUBI Portfolio.
B-1
The property of the Trust includes, or will include, among other things:
cash capital; certain fixed rate retail closed-end lease contracts (the
"Leases") of automobile and light-duty trucks (the "Leased Vehicles") originated
on or after November 1, 1993 by vehicle dealers ("Dealers") located within the
United States (to the extent permitted by law applicable to the Trustee or
otherwise) pursuant to dealer agreements entered into with the initial Grantor's
parent company, World Omni Financial Corp. ("WOFCO") (or, in certain
circumstances, by dealers or other Persons unaffiliated with WOFCO), and the
proceeds thereof; the Leased Vehicles and the proceeds thereof, including the
residual values thereof and the titles thereto; the right to proceeds of any
Dealer repurchase obligations relating to any Lease or Leased Vehicle; and
certain insurance policies or proceeds therefrom covering any Lease, Leased
Vehicles or a lessee under a Lease (such assets, together with any other assets
of the Trust, the "Trust Assets"). The Agreement provides that, from time to
time, certain of the Trust Assets will be identified and allocated on the
records of the Trust into one or more separate portfolios of Trust Assets (such
assets, "SUBI Assets" and each such portfolio, a "SUBI Portfolio"). The
beneficial interest in each such SUBI Portfolio will constitute a separate
"special unit of beneficial interest" ("SUBI") in the Trust. Pursuant to the
1998-A SUBI Supplement, various SUBI Assets (the "1998-A SUBI Assets") were
identified and allocated on the records of the Trust into a separate SUBI
Portfolio (the "1998-A SUBI Portfolio"), and the beneficial interest in the
1998-A SUBI Portfolio was designated as a separate SUBI known as the "1998-A
SUBI". The rights of the holder of this 1998-A SUBI Certificate to certain of
the proceeds of the 1998-A SUBI Assets are and will be further set forth in the
Agreement.
The SUBI & UTI Certificates do not represent an obligation of, or an
interest in, the Grantor, WOFCO or any of their respective Affiliates. The
1998-A SUBI Certificate is limited in right of payment to certain collections
and recoveries respecting the Leases (and the related Obligors) and the Leased
Vehicles allocated to the 1998-A SUBI Portfolio, all 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 principal office of the Trustee, and at such
other places, if any, designated by the Trustee, by the holder hereof upon
request.
By accepting this 1998-A SUBI Certificate, the holder hereof and all owners
of beneficial interests herein waives any claim to any proceeds or assets of the
Trustee and to all of the Trust Assets 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.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto with respect to the 1998-A SUBI Assets, the 1998-A SUBI
Portfolio and the 1998-A SUBI and the rights of the holder of the 1998-A SUBI
Certificate at any time by the Beneficiary and the Trustee, only with the
consent of The Bank of New York, as trustee (the "Indenture Trustee") under that
certain Indenture dated as of October 1, 1998 between PNC Bank, Delaware, as
trustee (the "Owner Trustee") of the World Omni 1998-A Automobile Lease
Securitization Trust, and the Indenture Trustee, as set forth in that certain
Securitization Trust Agreement dated as of October 1, 1998 (the "Securitization
Trust Agreement"), among the Transferor, the Indenture Trustee and the Owner
Trustee, and with the consent of the Owner Trustee. The Securitization Trust
Agreement further provides that, in certain limited circumstances, such consent
may be given only with the consent of the Holders of Notes evidencing more than
50% of the aggregate Percentage Interests (as all such terms are defined in the
Securitization Trust Agreement), voting together as a single class. If approval
of any holder of this 1998-A SUBI Certificate is required, any such consent
shall be conclusive and binding on such holder and on all future holders hereof
and of any 1998-A SUBI Certificate issued upon the permitted transfer hereof or
in exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this 1998-A SUBI Certificate.
As provided in the Agreement, this 1998-A SUBI Certificate and the
underlying interests represented hereby may not be transferred or assigned, and
any such purported transfer or assignment shall be null, void, and of no effect,
except in connection with an absolute assignment or the grant of a
B-2
security interest pledge by the Transferor in connection with (i) a sale by the
Beneficiary to the Transferor, or (ii) a Securitized Financing. Such a transfer
of this 1998-A SUBI Certificate is registrable upon surrender of this 1998-A
SUBI Certificate for registration of transfer at the corporate trust office of
the Trustee (or the Trust Agent, if applicable) or by any successor Trustee,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon a new 1998-A SUBI Certificate of a like
undivided interest will be issued to the designated permitted transferee.
Prior to due presentation of this 1998-A SUBI Certificate for registration
of a permitted transfer, the Trustee, the certificate registrar and any of their
respective agents may treat the person or entity in whose name this 1998-A SUBI
Certificate is registered as the owner hereof for the purpose of receiving
distributions and for all other purposes, and, except as provided for in the
Agreement, neither the Trustee, the certificate registrar nor any such agent
shall be affected by any notice to the contrary.
Unless this 1998-A SUBI Certificate shall have been executed by an
authorized officer of the Trustee, by manual signature, this 1998-A SUBI
Certificate shall not entitle the holder hereof to any benefit under the
Agreement or be valid for any purpose.
B-3
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this 1998-A SUBI Certificate to be duly executed.
Dated: WORLD OMNI LT
By: VT INC., as Trustee
(SEAL) ____________________________
Authorized Officer
ATTEST:
_____________________________
X-0
XXXXXXX X
XXXXX XX 0000-X LEASE
C-1
