EXECUTION COPY
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ADMINISTRATION AGREEMENT
among
WORLD OMNI AUTO RECEIVABLES TRUST 2001-B,
as Issuer,
WORLD OMNI FINANCIAL CORP.,
as Administrator,
WORLD OMNI AUTO RECEIVABLES LLC,
as Seller,
and
JPMORGAN CHASE BANK,
as Indenture Trustee
Dated as of December 13, 2001
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ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of December 13, 2001 (as
amended from time to time, this "Agreement"), is among WORLD OMNI AUTO
RECEIVABLES TRUST 2001-B, a Delaware business trust (the "Issuer"), WORLD OMNI
FINANCIAL CORP. ("WOFCO" or in its capacity as administrator, the
"Administrator"), WORLD OMNI AUTO RECEIVABLES LLC (the "Seller") and JPMORGAN
CHASE BANK, as Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer is a business trust under the Delaware Business
Trust Act created by a trust agreement dated December 13, 2001 (as amended,
supplemented or otherwise modified and in effect from time to time, the "Owner
Trust Agreement") among the Seller, as Depositor, The Bank of New York
(Delaware), as Delaware trustee and The Bank of New York, as Owner Trustee
(together with its successors and assigns in such capacity, the "Owner
Trustee").
WHEREAS, the Issuer is issuing 1.97125% Asset-Backed Notes, Class A-1,
2.80% Asset-Backed Notes, Class A-2, 3.79% Asset-Backed Notes, Class A-3, 4.49%
Asset-Backed Notes, Class A-4 and 4.14% Asset-Backed Notes, Class B
(collectively, the "Notes") pursuant to an Indenture, dated as of the date
hereof (as amended, supplemented or otherwise modified and in effect from time
to time, the "Indenture"), between the Issuer and the Indenture Trustee
(capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in, or incorporated by reference into, the Indenture);
WHEREAS, the Issuer is issuing Certificates (the "Certificates")
pursuant to the Owner Trust Agreement;
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes including (i) the sale and servicing agreement,
dated as of the date hereof (as amended, supplemented or otherwise modified and
in effect from time to time, the "Sale and Servicing Agreement"), between the
Issuer, the Seller and WOFCO, as servicer (in such capacity, the "Servicer"),
(ii) a Letter of Representations, dated as of the date hereof, among the Issuer,
the Indenture Trustee and The Depository Trust Company ("DTC") relating to the
Notes (as amended, supplemented or otherwise modified and in effect from time to
time, the "Depository Agreement") and (iii) the Indenture (the Sale and
Servicing Agreement, the Depository Agreement, the Owner Trust Agreement and the
Indenture being referred to hereinafter collectively as the "Related
Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (i) the Notes
and the collateral
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therefor pledged pursuant to the Indenture (the "Collateral") and (ii) the
beneficial ownership interest in the Issuer (the holder of such interest being
referred to herein as the "Depositor");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. (a) Duties of the Administrator.
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(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee
under the Basic Documents. In addition, the Administrator shall
consult with the Owner Trustee regarding the duties of the Issuer or
the Owner Trustee under the Related Agreements. The Administrator
shall monitor the performance of the Issuer and shall advise the
Owner Trustee when action is necessary to comply with the respective
duties of the Issuer and the Owner Trustee under the Related
Agreements. The Administrator shall prepare for execution by the
Issuer, or shall cause the preparation by other appropriate persons
of, all such documents, reports, filings, instruments, certificates
and opinions that it shall be the duty of the Issuer or the Owner
Trustee to prepare, file or deliver pursuant to the Related
Agreements. In furtherance of the foregoing, the Administrator shall
take all appropriate action that the Issuer or the Owner Trustee is
required to take pursuant to the Indenture including, without
limitation, such of the foregoing as are required with respect to the
following matters under the Indenture (references are to Sections of
the Indenture):
(A) the preparation of or obtaining of the documents and
instruments required for execution and authentication of the
Notes and delivery of the same to the Indenture Trustee (Section
2.02);
(B) the preparation of or obtaining of the documents and
instruments required for execution and authentication of
temporary Notes and delivery of the same to the Indenture Trustee
(Section 2.03);
(C) the duty to cause the Note Register to be kept and to
give the Indenture Trustee notice of any appointment of a new
Note Xxxxxxxxx
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and the location, or change in location, of the Note Register
(Section 2.05);
(D) the duty to cause the replacement of lost or mutilated
Notes upon the request of the Issuer (Section 2.06);
(E) the fixing or causing to be fixed of any specified
record date and the notification of the Indenture Trustee and
Noteholders with respect to special payment dates, if any
(Section 2.08(c));
(F) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of Collateral (Section 2.10);
(G) the preparation of Definitive Notes in accordance with
the instructions of the Clearing Agency (Section 2.13);
(H) the maintenance of an office in the Borough of
Manhattan, City of New York, for registration and transfer or
exchange of Notes (Section 3.02);
(I) the duty to cause newly appointed Paying Agents, if
any, to deliver to the Indenture Trustee the instrument specified
in the Indenture regarding funds held in trust (Section 3.03);
(J) the direction to the Indenture Trustee to deposit
monies with Paying Agents, if any, other than the Indenture
Trustee (Section 3.03);
(K) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity
and enforceability of the Indenture, the Notes and the Collateral
(Section 3.04);
(L) the preparation of all supplements and amendments to
the Indenture and all financing statements, continuation
statements, instruments of further assurance and other
instruments and the taking of such other action as is necessary
or advisable to protect the Collateral (Section 3.05);
(M) the delivery of an Opinion of Counsel on the Closing
Date and annual Opinions of Counsel as to the Trust Estate, and
the annual delivery of the Officer's Certificate and certain
other statements as to compliance with the Indenture (Sections
3.06 and 3.09);
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(N) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has
contracted to perform its duties under the Indenture (Section
3.07(b));
(O) the notification of the Indenture Trustee and each
Rating Agency of a Servicer Default under the Sale and Servicing
Agreement and, if such Servicer Default arises from the failure
of the Servicer to perform any of its duties or obligations under
the Sale and Servicing Agreement with respect to the Receivables,
the taking of all reasonable steps available to remedy such
failure (Section 3.07(d));
(P) the Issuer's duty to use all reasonable efforts to
cause the Servicer to comply with Sections 4.09, 4.10, 4.11,
5.07(b) and Article IX of the Sale and Servicing Agreement
(Section 3.14);
(Q) the delivery of written notice to the Indenture
Trustee, Owner Trustee and each Rating Agency of each Event of
Default under the Indenture and each default by the Servicer or
the Seller under the Sale and Servicing Agreement (Section 3.19);
(R) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation
of an Officer's Certificate and the obtaining of the Opinion of
Counsel and the Independent Certificate relating thereto (Section
4.01);
(S) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Collateral in a
commercially reasonable manner if an Event of Default shall have
occurred and be continuing (Section 5.04);
(T) the preparation of any written instruments required to
give effect to the authority of any co-trustee or separate
trustee and any written instruments necessary in connection with
the resignation or removal of the Indenture Trustee or any
co-trustee or separate trustee (Sections 6.08 and 6.10);
(U) the furnishing of the Indenture Trustee with the names
and addresses of Noteholders during any period when the Indenture
Trustee is not the Note Registrar (Section 7.01);
(V) the preparation and, after execution by the Issuer,
the filing with the Commission, any applicable state agencies and
the Indenture Trustee of documents required to be filed on a
periodic basis with, and summaries thereof as may be required by
rules and regulations prescribed by, the Commission and any
applicable state agencies and the
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transmission of such summaries, as necessary, to the
Noteholders (Section 7.03);
(W) the preparation and delivery of Issuer
Orders, Officer's Certificate and Opinions of Counsel
and all other actions necessary with respect to
investment and reinvestment of funds in the Trust
Accounts (Sections 8.02 and 8.03);
(X) the preparation of an Issuer Request and
Officer's Certificate and the obtaining of an Opinion
of Counsel and Independent Certificates, if
necessary, for the release of the Trust Estate
(Sections 8.04 and 8.05);
(Y) the preparation of Issuer Orders and the
obtaining of Opinions of Counsel with respect to the
execution of supplemental indentures and the mailing
to the Noteholders of notices with respect to such
supplemental indentures (Sections 9.01, 9.02 and
9.03);
(Z) arranging for the execution and delivery of
new Notes conforming to any supplemental indenture
(Section 9.06);
(AA) the duty to notify Noteholders and the
Rating Agencies of redemption of the Notes or to
cause the Indenture Trustee to provide such
notification (Section 10.02);
(BB) the preparation and delivery of
all Officer's Certificates, Opinions of Counsel and
Independent Certificates with respect to any requests
by the Issuer to the Indenture Trustee to take any
action under the Indenture (Section 11.01(a));
(CC) the preparation and delivery of Officer's
Certificates and the obtaining of Independent
Certificates, if necessary, for the release of
property from the lien of the Indenture (Section
11.01(b));
(DD) the notification of the Rating Agencies,
upon the failure of the Issuer or the Indenture
Trustee to give such notification, of the information
requirpursuant to Section 11.04 of the Indenture
(Section 11.04);
(EE) the preparation and delivery to the
Noteholders and the Indenture Trustee of any
agreements with respect to alternate payment and
notice provisions (Section 11.06); and
(FF) the recording of the Indenture, if
applicable (Section 11.15); and
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(ii) The Administrator will:
(A) pay the Indenture Trustee and any separate trustee or
co-trustee appointed pursuant to Section 6.10 of the Indenture (a "Separate
Trustee") from time to time reasonable compensation for all services
rendered by the Indenture Trustee or Separate Trustee, as the case may be,
under the Indenture (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(B) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee or any Separate Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Indenture Trustee or Separate Trustee, as the case may be, in
accordance with any provision of the Indenture (including the reasonable
compensation, expenses and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be attributable to its
negligence, bad faith or willful misconduct;
(C) indemnify the Indenture Trustee and any Separate Trustee and
their respective agents for, and hold them harmless against, any Expenses
(as defined below) incurred without negligence, bad faith or willful
misconduct on their part, arising out of or in connection with the
acceptance or administration of the transactions contemplated by the Basic
Documents, including the reasonable costs and expenses of defending
themselves against any claim or liability in connection with the exercise
or performance of any of their powers or duties under the Indenture; and
(D) To the extent not paid by the Depositor pursuant to the Owner
Trust Agreement, indemnify each of the Owner Trustee and the Delaware
Trustee and their successors, assigns, agents and servants as primary
obligor from and against, any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all reasonable and
documented costs, expenses and disbursements (including reasonable and
documented legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred
by, or asserted against the Owner Trustee or the Delaware Trustee in any
way relating to or arising out of the Basic Documents, the Owner Trust
Estate, the administration of the Owner Trust Estate or the action or
inaction of the Owner Trustee or the Delaware Trustee, except only that the
Administrator shall not be liable for or required to indemnify the Owner
Trustee or the Delaware Trustee from and against Expenses arising or
resulting from any of the matters described in the third sentence of
Section 7.01 of the Owner Trust
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Agreement. The indemnities contained in this Section shall
survive the resignation or termination of the Owner Trustee, the
Delaware Trustee or the termination of this Agreement. In any
event of any claim, action or proceeding for which indemnity will
be sought pursuant to this Section, the Owner Trustee's or the
Delaware Trustee's choice of legal counsel shall be subject to
the approval of the Administrator, which approval shall not be
unreasonably withheld.
(b) Additional Duties of the Administrator.
(i) In addition to the duties set forth in Section 1 (a)(i),
the Administrator shall perform such calculations and shall prepare or
shall cause the preparation by other appropriate persons of, and shall
execute on behalf of the Issuer or the Owner Trustee, all such documents,
reports, filings, instruments, certificates and opinions that it shall be
the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to the Related Agreements, and at the request of the Owner Trustee
shall take all appropriate action that the Issuer or the Owner Trustee is
required to take pursuant to the Related Agreements. In furtherance
thereof, the Owner Trustee shall on behalf of itself and of the Issuer,
execute and deliver to the Administrator and to each successor
Administrator appointed pursuant to the terms hereof, one or more powers of
attorney substantially in the form of Exhibit A hereto, appointing the
Administrator the attorney-in-fact of the Owner Trustee and the Issuer for
the purpose of executing on behalf of the Owner Trustee and the Issuer all
such documents, reports, filings, instruments, certificates and opinions.
Subject to Section 5 of this Agreement, and in accordance with the
directions of the Owner Trustee, the Administrator shall administer,
perform or supervise the performance of such other activities in connection
with the Collateral (including the Related Agreements) as are not covered
by any of the foregoing provisions and as are expressly requested by the
Owner Trustee and are reasonably within the capability of the
Administrator.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Owner Trustee set forth in Sections 5.05
and 5.06 of the Owner Trust Agreement with respect to, among other things,
accounting and reports to the Depositor.
(iii) As soon as practicable, but no later than seventeen months
after the date of the final prospectus, the Administrator will cause the
Indenture Trustee to make generally available to the Noteholders an
earnings statement of the Issuer covering a period of at least 12 months
beginning after the later of (i) the effective date of the registration
statement relating to the Notes and (ii) the effective date of the most
recent post-effective amendment to the registration statement to become
effective prior to the date of the final prospectus and, in each case,
satisfying the
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provisions of Section 11(a) of the Securities Act (including Rule
158 promulgated thereunder).
(iv) The Administrator shall provide written notice to the
Indenture Trustee upon notification to the Administrator that the
Clearing Agency is no longer willing or able to properly
discharge its responsibilities as described in the Depository
Agreement. Upon the receipt of such notification from the
Clearing Agency, the Administrator shall use reasonable efforts
to locate and appoint a qualified successor Clearing Agency.
(v) The Administrator shall have the duties of the
Administrator specified in Section 10.02 of the Owner Trust
Agreement required to be performed in connection with the
resignation or removal of the Owner Trustee, and any other duties
expressly required to be performed by the Administrator under the
Owner Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter
into transactions or otherwise deal with any of its Affiliates;
provided that the terms of any such transactions or dealings
shall be in accordance with any directions received from the
Issuer and shall be, in the Administrator's opinion, no less
favorable to the Issuer than would be available from unaffiliated
parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment
of the Administrator are non-ministerial, the Administrator shall
not take any action unless authorized pursuant to the Basic
Documents and within a reasonable time before the taking of such
action, the Administrator shall have notified the Owner Trustee
of the proposed action and the Owner Trustee shall not have
unreasonably withheld consent or shall not have provided an
alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought by or
against the Issuer (other than in connection with the collection
of the Contracts);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars,
successor Paying Agents and successor Indenture Trustees pursuant
to the Indenture
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or the appointment of a successor Administrator or a
Successor Servicer, or the consent to the assignment by the
Note Registrar, Paying Agent or Indenture Trustee of its
obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and
shall not, (A) make any payments to the Noteholders under
the Related Agreements, (B) sell the Collateral pursuant to
clause (iv) of Section 5.04(a) of the Indenture, (C) take
any other action that the Issuer directs the Administrator
not to take on its behalf or (D) take any other action which
may be construed as having the effect of varying the
investment of the Holders.
Section 2. Records.
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The Administrator shall maintain appropriate books of account
and records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by the Issuer and the Indenture
Trustee with reasonable prior notice at any time during normal business hours.
The Issuer and the Indenture Trustee shall, and shall cause their
representatives to, hold in confidence all such information except to the extent
disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations under the Indenture.
Section 3. Compensation.
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As compensation for the performance of the Administrator's
obligations under this Agreement and as reimbursement for its expenses related
thereto, the Administrator shall be entitled to an annual payment of
compensation of $1,000 which shall be solely an obligation of the Servicer.
Section 4. Additional Information to be Furnished to the Issuer.
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The Administrator shall furnish to the Issuer and the
Indenture Trustee from time to time such additional information regarding the
Collateral as the Issuer or the Indenture Trustee shall reasonably request.
Section 5. Independence of the Administrator.
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For all purposes of this Agreement, the Administrator shall be
an independent contractor and shall not be subject to the supervision of the
Issuer or the Owner Trustee with respect to the manner in which it accomplishes
the performance of its obligations hereunder. Unless expressly authorized by the
Issuer, the Administrator shall have no authority to act for or
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represent the Issuer or the Owner Trustee in any way and shall not otherwise be
deemed an agent of the Issuer or the Owner Trustee.
Section 6. No Joint Venture.
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Nothing contained in this Agreement shall (i) constitute the
Administrator and any of the Issuer, the Owner Trustee or the Indenture Trustee
as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) be construed to impose
any liability as such on any of them or (iii) be deemed to confer on any of them
any express, implied or apparent authority to incur any obligation or liability
on behalf of the others.
Section 7. Other Activities of Administrator.
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Nothing herein shall prevent the Administrator or its
Affiliates from engaging in other businesses or, in its sole discretion, from
acting in a similar capacity as an administrator for any other Person or entity
even though such person or entity may engage in business activities similar to
those of the Issuer, the Owner Trustee or the Indenture Trustee.
Section 8. Term of Agreement; Resignation and Removal of Administrator.
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This Agreement shall continue in force until the dissolution of
the Issuer, upon which event this Agreement shall automatically terminate.
(a) Subject to Sections 8(d) and 8(e), the Administrator may
resign its duties hereunder by providing the Issuer and the Indenture
Trustee with at least 60 days' prior written notice.
(b) Subject to Sections 8(d) and 8(e), the Issuer may remove the
Administrator without cause by providing the Administrator with at
least 60 days' prior written notice.
(c) Subject to Sections 8(d) and 8(e), at the sole option of the
Issuer, the Administrator may be removed immediately upon written
notice of termination from the Issuer to the Administrator if any of
the following events shall occur:
(i) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of such
default, shall not cure such default within 30 days (or, if such
default cannot be cured in such time, shall not give within ten
days such assurance of cure as shall be reasonably satisfactory to
the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not
have been vacated within 60 days, in respect of the Administrator
in any involuntary case under any applicable
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bankruptcy, insolvency or other similar law now or hereafter in
effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or
any substantial part of its property or order the winding-up or
liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for
relief in an involuntary case under any such law, or shall consent
to the appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official for the Administrator
or any substantial part of its property, shall consent to the
taking of possession by any such official of any substantial part
of its property, shall make any general assignment for the benefit
of creditors or shall fail generally to pay its debts as they
become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) above shall occur, it shall give written notice thereof to the
Issuer and the Indenture Trustee within seven days after the occurrence of such
event.
(d) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator
acceptable to the Indenture Trustee shall have been appointed by the
Issuer with the consent of the Indenture Trustee and (ii) such
successor Administrator shall have agreed in writing to be bound by the
terms of this Agreement in the same manner as the Administrator is
bound hereunder.
(e) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with
respect to the proposed appointment.
Section 9. Action upon Termination, Resignation or Removal.
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Promptly upon the effective date of termination of this Agreement
pursuant to the first sentence of Section 8 or the resignation or removal of the
Administrator pursuant to Section 8(a), (b) or (c), respectively, the
Administrator shall be entitled to be paid the prorated portion of all fees and
reimbursable expenses as set forth in Section 3 accruing to it to the date of
such termination, resignation or removal. The Administrator shall forthwith upon
such termination pursuant to the first sentence of Section 1.08 deliver to the
Issuer all property and documents of or relating to the Collateral then in the
custody of the Administrator. In the event of the resignation or removal of the
Administrator pursuant to Section 8(a), (b) or (c), respectively, the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties of
the Administrator. The Administrator's payment and indemnification obligations
pursuant to this Agreement which arose as a result of Administrator's actions
while acting as Administrator shall survive the termination of this Agreement
and the resignation and removal of the Administrator.
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Section 10. Notices.
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Any notice, report or other communication given hereunder shall be
in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
WORLD OMNI AUTO RECEIVABLES TRUST 2001-B, c/o The Bank of New
York, 0 Xxxx Xxxxx, 00/xx/ Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx
Xxxxx, Telecopy: 000-000-0000
(b) if to the Administrator, to:
WORLD OMNI FINANCIAL CORP., 000 X.X. 00/xx/ Xxxxxx, Xxxxxxxxx
Xxxxx, Xxxxxxx 00000 Attention: Xxxxxxx Xxxxxxxxx, Telecopy: (000) 000-0000
(c) if to the Indenture Trustee, to:
JPMorgan Chase Bank 000 Xxxx 00xx Xxxxxx 00xx Xxxxx Xxx Xxxx, Xxx
Xxxx 00000-0000 Attention: Institutional Trust Services, Telecopy: (212)
946-8302 or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above.
Section 11. Amendments.
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This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the parties hereto, with the prior
written consent of the Owner Trustee, but without the consent of the
Noteholders, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Noteholders; provided that such amendment will not,
as so evidenced, upon the request of the Indenture Trustee, by an Officer's
Certificate, materially and adversely affect the interest of any Noteholder.
This Agreement may also be amended by the parties hereto with the prior written
consent of the Owner Trustee and the holders of Notes evidencing at least 50% of
the Outstanding Amount of the Controlling Securities for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of Noteholders;
provided, further, that no such amendment may (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on the Contracts or distributions that are required to be made for the
benefit of the Noteholders or (ii) reduce the aforesaid percentage of the
holders of Notes which are required to consent to any such amendment, without
the consent of the holders of all outstanding Notes. Notwithstanding the
foregoing, the Administrator may not amend this Agreement without the permission
of the Seller, which permission shall not be unreasonably withheld.
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Section 12. Successors and Assigns.
----------------------
This Agreement may not be assigned by the Administrator unless
such assignment is previously consented to in writing by the Issuer, the Owner
Trustee and the Indenture Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder in
the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer, the Indenture Trustee or the Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator; provided that the Rating Agency
Condition is satisfied and such successor organization executes and delivers to
the Issuer, the Owner Trustee and the Indenture Trustee an agreement, in form
and substance reasonably satisfactory to the Issuer, the Owner Trustee and the
Indenture Trustee, in which such corporation or other organization agrees to be
bound hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement shall
bind any successors or assigns of the parties hereto.
Section 13. Governing Law.
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This Agreement shall, in accordance with Section 5-1401 of the
General Obligations Law of the State of New York, be governed by, and construed
in accordance with, the laws of the State of New York without regard any
otherwise applicable conflict of law provisions.
Section 14. Headings.
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The section and subsection headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
Section 15. Counterparts.
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This Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the
same agreement.
Section 16. Severability.
------------
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
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Section 17. Not Applicable to WOFCO in Other Capacities.
-------------------------------------------
Nothing in this Agreement shall affect any obligation WOFCO may
have in any other capacity.
Section 18. Limitation of Liability of Owner Trustee and Indenture Trustee.
--------------------------------------------------------------
(a) Notwithstanding anything contained herein to the contrary,
this instrument has been countersigned by The Bank of New York, not in its
individual capacity but solely in its capacity as Owner Trustee of the
Issuer, and in no event shall The Bank of New York in its individual
capacity or any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to
the assets of the Issuer. For all purposes of this Agreement, in the
performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the
terms and provisions of Articles VI, VII and VIII, of the Owner Trust
Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by JPMorgan Chase Bank, as Indenture
Trustee and in no event shall JPMorgan Chase Bank have any liability for
the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall
be had solely to the assets of the Issuer.
Section 19. Third-Party Beneficiary.
-----------------------
The Bank of New York (Delaware) (solely to the extent of Section
1(a)(ii)(D) hereof) and the Owner Trustee are third-party beneficiaries to this
Agreement and are entitled to the rights and benefits hereunder and may enforce
the provisions hereof as if they were a party hereto.
Section 20. Nonpetition Covenants.
---------------------
(a) Notwithstanding any prior termination of this Agreement, each
party hereto shall not, at any time, acquiesce, petition or otherwise
invoke or cause the Issuer to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case
against the Issuer under any Federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Issuer or any
substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement, each
party hereto shall not, solely in its capacity as a creditor of the
Seller, at any time, acquiesce, petition or otherwise invoke or cause the
Seller to invoke the process of any court or
15
government authority for the purpose of commencing or sustaining an involuntary
case against the Seller under any Federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller.
* * * * *
16
IN WITNESS WHEREOF, the parties hereto have caused this
Administration Agreement to be duly executed and delivered as of the day and
year first above written.
WORLD OMNI AUTO RECEIVABLES TRUST 2001-B, as Issuer
By: THE BANK OF NEW YORK, not in its individual
capacity but solely as Owner Trustee
By: /s/ Xxxx Xxxxx
----------------------------------------
Name:
Title:
WORLD OMNI AUTO RECEIVABLES LLC, as Seller
By: /s/ Xxxx Xxxxxxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Assistant Treasurer
JPMORGAN CHASE, as Indenture Trustee
By: /s/ Xxxxxxxx Xxxxx
----------------------------------------
Name:
Title:
WORLD OMNI FINANCIAL CORP., as Administrator
By: /s/ Xxxx Xxxxxxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Assistant Treasurer
Administration Agreement
17
EXHIBIT A
FORM OF POWER OF ATTORNEY
STATE OF ____________ )
COUNTY OF _________ )
KNOW ALL MEN BY THESE PRESENTS, that The Bank of New York. a New York
banking corporation, not in its individual capacity but solely as owner trustee
("Owner Trustee") for the WORLD OMNI AUTO RECEIVABLES TRUST 2001-B (the
"Trust"), does hereby make, constitute, and appoint WORLD OMNI FINANCIAL CORP.
as Administrator under the Administration Agreement (as defined below), and its
agents and attorneys, as Attorneys-in-Fact to execute on behalf of the Owner
Trustee or the Trust all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Owner Trustee or the
Trust to prepare, file or deliver pursuant to the Related Agreements (as defined
in the Administration Agreement), including, without limitation, to appear for
and represent the Owner Trustee and the Trust in connection with the
preparation, filing and audit of federal, state and local tax returns pertaining
to the Trust, and with full power to perform any and all acts associated with
such returns and audits that the Owner Trustee could perform, including without
limitation, the right to distribute and receive confidential information, defend
and assert positions in response to audits, initiate and defend litigation, and
to execute waivers of restriction on assessments of deficiencies, consents to
the extension of any statutory or regulatory time limit, and settlements. For
the purpose of this Power of Attorney, the term "Administration Agreement" means
the Administration Agreement, dated as of December 13, 2001, by and among the
Trust, World Omni Financial Corp., as Administrator, World Omni Auto Receivables
LLC, as Seller, and JPMorgan Chase Bank, as Indenture Trustee, as such may be
amended, supplemented or otherwise modified and in effect from time to time.
All powers of attorney for this purpose heretofore filed or executed
by the Owner Trustee are hereby revoked.
EXECUTED this ___ day of ____________, ____
THE BANK OF NEW YORK, not in its
individual capacity but solely
as Owner Trustee
By: _____________________________
Name:
Title:
A-1
