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EXHIBIT 3.7
MB&P Draft 10/14/97
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WORLD OMNI LEASE SECURITIZATION L.P.,
PNC BANK DELAWARE, AS OWNER TRUSTEE
AND
U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE
WORLD OMNI 1997-B AUTOMOBILE LEASE SECURITIZATION TRUST
SECURITIZATION TRUST AGREEMENT
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DATED AS OF OCTOBER 1, 1997
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TABLE OF CONTENTS
Page
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RECITALS ......................................................................................................... 1
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions..................................................................................... 3
Section 1.02. Article and Section References..................................................................36
ARTICLE TWO
CREATION OF TRUST
Section 2.01. Creation of Trust...............................................................................36
Section 2.02. Conveyance of 99.8% 1997-B SUBI Interest........................................................36
Section 2.03. Acceptance by Owner Trustee.....................................................................37
ARTICLE THREE
DISTRIBUTIONS; RESERVE FUND;
STATEMENTS TO SECURITYHOLDERS
Section 3.01. Distribution Account............................................................................37
Section 3.02. Collections.....................................................................................38
Section 3.03. Distributions...................................................................................39
Section 3.04. Reserve Fund....................................................................................45
Section 3.05. Net Deposits....................................................................................47
Section 3.06. Statements to Noteholders.......................................................................48
ARTICLE FOUR
THE TRANSFEROR CERTIFICATE
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Section 4.01. The Transferor Certificates.....................................................................51
Section 4.02. Authentication and Delivery of Transferor Certificate...........................................51
Section 4.03. No Transfer of Transferor Certificate...........................................................52
Section 4.04. Mutilated, Destroyed, Lost or Stolen Certificates...............................................52
Section 4.05. Persons Deemed Owners...........................................................................52
ARTICLE FIVE
THE TRANSFEROR
Section 5.01. Representations of Transferor...................................................................53
Section 5.02. Liability of Transferor; Indemnities............................................................55
Section 5.03. Merger or Consolidation of, or Assumption of the Obligations of,
Transferor; Certain Limitations.................................................................55
Section 5.04. Limitation on Liability of Transferor and Others................................................57
Section 5.05. Transferor May Own Notes........................................................................58
Section 5.06. No Transfer.....................................................................................58
Section 5.07. Tax Matters Partner.............................................................................58
ARTICLE SIX
THE OWNER TRUSTEE
Section 6.01. Duties of Owner Trustee.........................................................................58
Section 6.02. Certain Matters Affecting the Owner Trustee.....................................................60
Section 6.03. Owner Trustee Not Liable for Notes, Transferor Certificate or Leases............................61
Section 6.04. Owner Trustee May Own Notes.....................................................................62
Section 6.05. Owner Trustee's Fees and Expenses...............................................................62
Section 6.06. Eligibility Requirements for Owner Trustee......................................................63
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Section 6.07. Resignation or Removal of Owner Trustee.........................................................64
Section 6.08. Successor Owner Trustee.........................................................................64
Section 6.09. Merger or Consolidation of Owner Trustee........................................................65
Section 6.10. Appointment of Co-Trustee or Separate Owner Trustee.............................................65
Section 6.11. Representations and Warranties of Owner Trustee.................................................67
Section 6.12. Tax Returns.....................................................................................68
Section 6.13. Owner Trustee May Enforce Claims Without Possession of Transferor
Certificate.....................................................................................68
Section 6.14. Suit for Enforcement............................................................................68
Section 6.15. Rights of Indenture Trustee to Direct Owner Trustee.............................................69
Section 6.16. No Petition.....................................................................................69
ARTICLE SEVEN
TERMINATION
Section 7.01. Termination of the Trust........................................................................70
Section 7.02. Optional Purchase of 99.8% 1997-B SUBI Interest.................................................70
ARTICLE EIGHT
EARLY AMORTIZATION EVENTS
Section 8.01. Early Amortization Events.......................................................................71
ARTICLE NINE
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment.......................................................................................74
Section 9.02. Protection of Title to Trust....................................................................77
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Section 9.03. Limitation on Rights of Transferor..............................................................78
Section 9.04. Governing Law...................................................................................78
Section 9.05. Notices.........................................................................................78
Section 9.06. Severability of Provisions......................................................................79
Section 9.07. Assignment......................................................................................79
Section 9.08. Transferor Certificate Nonassessable and Fully Paid.............................................79
ARTICLE TEN
AGENT FOR SERVICE
Section 10.01. Agent for Service of Transferor.................................................................79
Section 10.02. Agent of Owner Trustee..........................................................................79
EXHIBITS:
Exhibit A - Transferor Certificate...............................................................A-1
Exhibit B - Certificate of Trust.................................................................B-1
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SECURITIZATION TRUST AGREEMENT
THIS SECURITIZATION TRUST AGREEMENT, dated as of October 1, 1997,
is made with respect to the formation of the WORLD OMNI 1997-B AUTOMOBILE LEASE
SECURITIZATION TRUST (the "Trust"), between WORLD OMNI LEASE SECURITIZATION
L.P., a Delaware limited partnership ("WOLSI LP" or, in its capacity as
transferor hereunder, the "Transferor"), PNC BANK, DELAWARE, a Delaware trust
company, as owner trustee (the "Owner Trustee"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as indenture trustee (the
"Indenture Trustee").
RECITALS
A. Auto Lease Finance L.P., a Delaware limited partnership ("ALFI
LP"), VT Inc., an Alabama corporation (the "Origination Trustee"), and, for
certain limited purposes set forth therein, U.S. Bank National Association, a
national banking association (formerly known as First Bank National Association
and successor trustee to Bank of America Illinois, an Illinois banking
corporation) (together with its successors, "U.S. Bank"), have entered into that
certain Second Amended and Restated Trust Agreement dated as of July 1, 1994, as
amended by that certain Amendment No. 1 to Second Amended and Restated Trust
Agreement dated as of November 1, 1994 (as the same may be further amended,
supplemented or modified, the "Origination Trust Agreement"), amending and
restating that certain original Trust Agreement dated as of November 1, 1993
among Auto Lease Finance, Inc. ("ALFI"), the Origination Trustee and U.S. Bank,
and that certain Amended and Restated Trust Agreement dated as of June 1, 1994
among ALFI, ALFI LP, the Origination Trustee and U.S. Bank, pursuant to which
ALFI LP and the Origination Trustee formed World Omni LT, an Alabama trust (the
"Origination Trust"), for the purpose of taking assignments and conveyances of,
holding in trust and dealing in various Trust Assets (as defined in the
Origination Trust Agreement) in accordance with the Origination Trust Agreement.
ALFI and World Omni Financial Corp., a Florida corporation ("WOFCO"), ALFI's
parent, have entered into that certain Limited Partnership Agreement dated as of
June 1, 1994, as amended and restated pursuant to that certain Amended and
Restated Limited Partnership Agreement dated as of July 1, 1994, pursuant to
which ALFI LP was formed and ALFI contributed to ALFI LP all of its right, title
and interest in and to the Origination Trust.
B. The Origination Trustee, on behalf of the Origination Trust,
and WOFCO (in its capacity as servicer, the "Servicer") also have entered into
that certain Second Amended and Restated Servicing Agreement dated as of July 1,
1994 (the "Servicing Agreement"), amending and restating that certain original
Servicing Agreement dated as of November 1, 1993, and that certain Amended and
Restated Servicing Agreement dated as of June 1, 1994, which provides for, among
other things, the servicing of the Trust Assets by the Servicer.
C. Concurrently herewith, and as contemplated by the terms of the
Origination Trust Agreement, ALFI LP, the Origination Trustee, U.S. Bank and
WOLSI LP have entered into a Supplement 1997-B to Trust Agreement dated as of
October 1, 1997 (the "1997-B SUBI Supplement") pursuant to which the Origination
Trustee, on behalf of the Origination Trust and
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at the direction of ALFI LP, will create and issue to ALFI LP a special unit of
beneficial interest in the Origination Trust, or "SUBI" (as defined in the
Origination Trust Agreement) (such SUBI, the "1997-B SUBI"), whose beneficiaries
generally will be entitled to the net cash flow arising from, but only from, the
related SUBI Portfolio (as defined in the Origination Trust Agreement) (such
SUBI Portfolio, the "1997-B SUBI Portfolio"), which 1997-B SUBI will be
evidenced by one SUBI Certificate (as defined in the Origination Trust
Agreement) representing a 99.8% beneficial interest in the 1997-B SUBI (the
"99.8% 1997-B SUBI Certificate") and a second SUBI Certificate representing the
remaining 0.2% beneficial interest in the 1997-B SUBI (the "0.2% 1997-B SUBI
Certificate" and, together with the 99.8% 1997-B SUBI Certificate, the "1997-B
SUBI Certificates"), all as set forth in the Origination Trust Agreement and the
1997-B SUBI Supplement.
D. Also concurrently herewith, and as contemplated by the terms
of the Servicing Agreement, the Origination Trustee, on behalf of the
Origination Trust, and the Servicer also have entered into a Supplement 1997-B
to Servicing Agreement dated as of October 1, 1997 (the "1997-B Servicing
Supplement"), pursuant to which the terms of the Servicing Agreement will be
supplemented insofar as they apply to the 1997-B SUBI Portfolio, providing for
further specific servicing obligations that will benefit the holders of the
1997-B SUBI Certificates and the parties to the Securitized Financing (as
defined in the Origination Trust Agreement) contemplated by this Agreement.
E. Also concurrently herewith, ALFI LP and the Transferor have
entered into that certain SUBI Certificate Purchase and Sale Agreement dated as
of October 1, 1997 (the "SUBI Certificate Agreement"), pursuant to which ALFI LP
sold to the Transferor, without recourse, all of ALFI LP's right, title and
interest in and to the 1997-B SUBI and the 1997-B SUBI Certificates, all monies
due thereon and paid thereon in respect thereof and the right to realize on any
property that may be deemed to secure the 1997-B SUBI, and all proceeds thereof,
all in consideration of the cash payment to ALFI LP of an amount equal to the
Aggregate Net Investment Value (as defined below) of the 1997-B SUBI Portfolio
as of the Initial Cutoff Date (as defined in the 1997-B SUBI Supplement).
F. The parties desire to enter into this Agreement to create the
Trust.
G. Also concurrently herewith, the Indenture Trustee and the
Owner Trustee are entering into that certain Indenture dated as of October 1,
1997 (the "Indenture") pursuant to which, among other things, the Trust will
issue the Notes and the Trust will grant a security interest to the Indenture
Trustee with respect to all of the Trust Estate.
H. The parties hereto desire, pursuant to this Agreement, to
provide for the issuance by the Trust of the Transferor Certificate and to
provide for the exchange of the Transferor Certificate and the Notes for the
99.8% 1997-B SUBI Certificate in connection with a Securitized Financing (as
defined in the Origination Trust Agreement) by the Transferor.
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. DEFINITIONS.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, (a) unless otherwise defined
herein, all capitalized terms used herein shall have the meanings attributed to
them by Section 0.01 of the Origination Trust Agreement, by Section 10.01 of the
1997-B SUBI Supplement or Section 6.01 of the 1997-B Servicing Supplement, as
applicable, (b) the capitalized terms defined in this Agreement have the
meanings assigned to them in this Agreement and include (i) all genders and (ii)
the plural as well as the singular, (c) all references to words such as
"herein", "hereof" and the like shall refer to this Agreement as a whole and not
to any particular article or section within this Agreement, (d) the term
"include" and all variations thereon shall mean "include without limitation",
and (e) the term "or" shall include "and/or".
"Accelerated Principal Distribution Amount" has the meaning set
forth in Section 3.03(c)(ii).
"Additional Loss Lease" means a 1997-B Lease that has been sold
or otherwise disposed of to pay an Additional Loss Amount.
"Administrative Expense" means any reasonable administrative cost
or expense associated with the Indenture, the Notes, the Trust or the
Origination Trust, including reasonable fees and expenses of attorneys and
accountants.
"Advance" means those advances required or permitted to be made
by the Servicer pursuant to Section 9.04 of the 1997-B Servicing Supplement.
"Aggregate Net Investment Value" means, as of any day, the sum of
(i) the aggregate of the Discounted Principal Balances of all 1997-B Leases at
such date, each such Discounted Principal Balance being derived from the
Schedule of Leases and Leased Vehicles as in effect on such date; provided that
as of the last day of any Collection Period, there shall be eliminated from the
Schedule of Leases and Leased Vehicles for the purpose of this definition
(including, without limitation, the determination at any subsequent time of the
Aggregate Net Investment Value as of the last day of any Collection Period) each
1997-B Lease that became a Charged-off, Liquidated, Matured or Additional Loss
Lease before the end of such Collection Period, (ii) the aggregate of the Booked
Residual Values of those Leased Vehicles that have been added to Matured Leased
Vehicle Inventory within the three immediately preceding Collection Periods but
have not been sold or otherwise disposed of as of the last day of the most
recent Collection
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Period for no more than two full Collection Periods, each such Booked Residual
Value being derived from the Schedule of Leases and Leased Vehicles as in effect
on such date, and (iii) prior to the last Transfer Date, the aggregate amount of
Principal Collections (and amounts treated as Principal Collections pursuant to
the last sentence of Section 3.03(b)) that have not been reinvested in
additional 1997-B Leases and 1997-B Leased Vehicles pursuant to Section 11.02 of
the 1997-B SUBI Supplement.
"Aggregate Net Losses" means, with respect to a Collection
Period, an amount equal to the aggregate Discounted Principal Balances of all
1997-B Leases that became Charged-off Leases during such Collection Period minus
all Net Repossessed Vehicle Proceeds and other Net Liquidation Proceeds
collected during such Collection Period with respect to Charged-off Leases.
"Agreement" means this Securitization Trust Agreement and all
amendments hereof and supplements hereto.
"ALFI" means Auto Lease Finance, Inc. and its successors.
"ALFI LP" has the meaning set forth in Recital A.
"Alternate Reserve Fund Formula" means that formula pursuant to
which the Reserve Fund Cash Requirement is to be calculated if any Reserve Fund
Test is not satisfied as of any Distribution Date. Pursuant to the Alternate
Reserve Fund Formula, the Reserve Fund Cash Requirement shall equal [ ] times
the Base Reserve Fund Formula, but which amount shall in no event be greater
than the Note Balance (after giving effect to reductions in the Note Balance) on
such Distribution Date.
"Amortization Date" means __________, 1998.
"Amortization Period" means the period beginning with the day
immediately succeeding the last day of the Revolving Period and ending on the
day the Notes have been paid in full and all unpaid Class A-1 Note Principal
Loss Amounts, Class A-2 Note Principal Loss Amounts, Class A-3 Note Principal
Loss Amounts, Class A-4 Note Principal Loss Amounts, Class B Note Principal Loss
Amounts and unpaid Class B Note Principal Carryover Shortfalls have been paid in
full, in each case with accrued interest thereon, or the Trust otherwise
terminates.
"Applicants" shall have the meaning specified in Section 4.06.
"Authorized Newspaper" means a newspaper of general circulation
in the Borough of Manhattan, The City of New York, printed in the English
language and customarily published on each Business Day, whether or not
published on Saturdays, Sundays and holidays.
"Base Reserve Fund Formula" means that formula pursuant to which
the Reserve Fund Cash Requirement is to be calculated if all Reserve Fund Tests
are satisfied as of any
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Distribution Date. Pursuant to the Base Reserve Fund Formula the Reserve Fund
Cash Requirement with respect to any Distribution Date will equal the lesser of
(i) the amount of the Reserve Fund Initial Deposit and (ii) the Note Balance as
of the related Distribution Date (after giving effect to reductions in the Note
Balance on such Distribution Date).
"Book-Entry Notes" means a beneficial interest in the [Class A]
Notes, ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.10 of the Indenture.
"Business Day" means any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, Chicago, Illinois,
Wilmington, Delaware, Deerfield Beach, Florida, or Mobile, Alabama are
authorized or obligated by law, executive order or governmental decree to be
closed.
"Business Trust Statute" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss. 3801 et seq.
"Capped Indenture Trustee Administrative Expenses" means the
compensation of the Indenture Trustee pursuant to Section 6.07 of the Indenture
and those other Administrative Expenses with respect to the Indenture and the
Notes, including those due under Section 6.07 of the Indenture that, together
with all such Administrative Expenses paid since the beginning of the calendar
year in which such Distribution Date occurs, do not exceed $ (or $ in any year
in which an Indenture Event of Default occurs and the Indenture Trustee sells
the property of the Trust pursuant to Section 5.17 of the Indenture).
"Capped Owner Trustee Administrative Expenses" means the
compensation of the Owner Trustee pursuant to Section 6.05 and those other
Administrative Expenses with respect to the Trust, including those due under
Section 6.05, as are due on such Distribution Date that, together with all such
Administrative Expenses paid since the beginning of the calendar year in which
such Distribution Date occurs, do not exceed $ (or $ in any year in which an
Indenture Event of Default occurs and the Indenture Trustee sells the property
of the Trust pursuant to Section 5.17 of the Indenture).
"Certificate" means the Transferor Certificate.
"Certificateholder" means the Transferor.
"Certificate of Trust" means the Certificate of Trust in the form
of Exhibit B filed for the Trust pursuant to the Business Trust Statute.
"Charged-off Amount" means, as of any Distribution Date, an
amount equal to the sum of the Discounted Principal Balances, as of the end of
the related Collection Period, of any Charged-off Leases that became Charged-off
Leases during that related Collection Period.
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"Charge-off Rate" means, with respect to any Collection Period, a
percentage equivalent to a fraction, the numerator of which is the product of
(a) 12 and (b) the Aggregate Net Losses with respect to such Collection Period,
and the denominator of which is the quotient of (a) the Aggregate Net Investment
Value as of the last day of such Collection Period plus the Aggregate Net
Investment Value as of the last day of the immediately preceding Collection
Period, divided by (b) 2.
"Charge-off Rate Test" means that determination, made on each
Determination Date, of the average of the Charge-off Rates for each of the
immediately preceding three Collection Periods (or the months of _______ and
_______ 1997 in the case of the ______ 1997 Determination Date, the months of
_______ and _______ 1997 and the __________ 1997 Collection Period in the case
of the _______ 1997 Determination Date, and the month of _______ 1997 and the
_______ and _______ 1997 Collection Periods in the case of the _______ 1997
Determination Date). The Charge-off Rate Test will be satisfied if such average
is [ %] or less.
"Class" means all Securities whose form is identical except for
variation in denomination, principal amount or owner.
"Class A Notes" means the Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes and the Class A-4 Notes.
"Class A Note Balance" means the sum of the Class A-1 Note
Balance, the Class A-2 Note Balance, Class A-3 Note Balance and the Class A-4
Note Balance.
"Class A Noteholder" means any Holder of a Class A-1 Note, Class
A-2 Note, Class A-3 Note or Class A-4 Note.
"Class A Percentage" means the Class A Note Balance immediately
after the [Class A-3 Notes] have been paid in full as a percentage of the Note
Balance at such time.
"Class A-1 Additional Loss Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-1 Allocation Percentage,
(ii) the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the portion of the Additional Loss Amount incurred
in respect of such Collection Period that is allocable to the 99.8% 1997-B SUBI
Interest.
"Class A-1 Allocation Percentage" means, as of any Distribution
Date, the Class A-1 Note Balance as of the last day of the related Collection
Period as a percentage of the Note Balance as of such last day.
"Class A-1 Charged-off Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-1 Allocation Percentage,
(ii) the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the portion of the Charged-off
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Amount incurred in respect of such Collection Period that is allocable to the
99.8% 1997-B SUBI Interest.
"Class A-1 Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-1 Principal Distributable Amount and
the Class A-1 Interest Distributable Amount.
"Class A-1 Interest Carryover Shortfall" means, with respect to
any Distribution Date, the excess, if any, of (i) the Class A-1 Interest
Distributable Amount for such Distribution Date plus any outstanding Class A-1
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class A-1 Interest Carryover Shortfall, to the
extent permitted by law, at the Class A-1 Note Rate from such immediately
preceding Distribution Date to but not including the current Distribution Date,
over (ii) the amount of interest distributed to Class A-1 Noteholders on such
current Distribution Date.
"Class A-1 Interest Distributable Amount" means, with respect to
any Distribution Date, the product of (i) one-twelfth of the Class A-1 Note Rate
or, in the case of the first Distribution Date, % of such amount, and (ii) the
Class A-1 Note Balance as of the immediately preceding Distribution Date (after
giving effect to changes in the Class A-1 Note Balance made on such immediately
preceding Distribution Date) or, in the case of the first Distribution Date, the
Initial Class A-1 Note Balance.
"Class A-1 Loss Amount" means, with respect to any Distribution
Date, the product of (a) the Class A-1 Allocation Percentage, (b) the Investor
Percentage with regard to Loss Amounts for the related Collection Period, and
(c) the Loss Amount for the related Collection Period allocable to the 99.8%
1997-B SUBI Interest.
"Class A-1 Note" means one of the Notes executed and
authenticated by the Indenture Trustee in substantially the form set forth in
Exhibit A to the Indenture.
"Class A-1 Note Balance" shall initially equal the Initial Class
A-1 Note Balance and, on any date, shall equal the Initial Class A-1 Note
Balance, reduced by the sum of (i) all amounts distributed to Class A-1
Noteholders and allocable to principal on or prior to such date and (ii) the
amount, if any, by which (a) the aggregate of all Class A-1 Note Principal Loss
Amounts on or prior to such date exceeds (b) the aggregate of all Class A-1 Note
Principal Loss Amounts reimbursed on or prior to such date.
"Class A-1 Note Factor" means, with respect to any Distribution
Date, a seven-digit decimal figure equal to the Class A-1 Note Balance as of the
close of business on such Distribution Date (after giving effect to all changes
in the Class A-1 Note Balance made on that date) divided by the Initial Class
A-1 Note Balance.
"Class A-1 Noteholder" means any Holder of a Class A-1 Note.
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"Class A-1 Note Principal Loss Amount" means, with respect to any
Distribution Date, the amount, if any, by which (i) the sum of the Class A-1
Loss Amount for the related Collection Period and any previously unreimbursed
Class A-1 Note Principal Loss Amount exceeds (ii) the amount available to be
distributed in respect of the Class A-1 Notes pursuant to Section 3.03(b)(vi) or
(b)(vii) on such Distribution Date.
"Class A-1 Note Principal Loss Interest Amount" means, with
respect to any Distribution Date, the aggregate amount of accrued and unpaid
interest (at the Class A-1 Note Rate) on the aggregate amount of unreimbursed
Class A-1 Note Principal Loss Amounts.
"Class A-1 Note Rate" means ____% per annum.
"Class A-1 Principal Distributable Amount" means, with respect to
any Distribution Date related to a Collection Period in the Amortization Period,
the amount (if any) that is distributable to the Class A-1 Noteholders pursuant
to Section 3.03(d).
"Class A-1 Residual Value Loss Amount" means, as of any
Distribution Date, an amount equal to the product of (i) the Class A-1
Allocation Percentage, (ii) the Investor Percentage with respect to Loss Amounts
for the related Collection Period and (iii) the portion of the Residual Value
Loss Amount incurred in respect of such Collection Period that is allocable to
the 99.8% 1997-B SUBI Interest.
"Class A-2 Additional Loss Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-2 Allocation Percentage,
(ii) the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the portion of the Additional Loss Amount incurred
in respect of such Collection Period that is allocable to the 99.8% 1997-B SUBI
Interest.
"Class A-2 Allocation Percentage" means, as of any Distribution
Date, the Class A-2 Note Balance as of the last day of the related Collection
Period as a percentage of the then Note Balance as of such last day.
"Class A-2 Charged-off Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-2 Allocation Percentage,
(ii) the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the portion of the Charged-off Amount incurred in
respect of such Collection Period that is allocable to the 99.8% 1997-B SUBI
Interest.
"Class A-2 Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-2 Principal Distributable Amount and
the Class A-2 Interest Distributable Amount.
"Class A-2 Interest Carryover Shortfall" means, with respect to
any Distribution Date, the excess, if any, of (i) the Class A-2 Interest
Distributable Amount for such Distribution Date plus
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any outstanding Class A-2 Interest Carryover Shortfall from the immediately
preceding Distribution Date plus interest on such outstanding Class A-2 Interest
Carryover Shortfall, to the extent permitted by law, at the Class A-2 Note Rate
from such immediately preceding Distribution Date to but not including the
current Distribution Date, over (ii) the amount of interest distributed to Class
A-2 Noteholders on such current Distribution Date.
"Class A-2 Interest Distributable Amount" means, with respect to
any Distribution Date, the product of (i) one-twelfth of the Class A-2 Note Rate
or, in the case of the first Distribution Date, % of such amount, and (ii) the
Class A-2 Note Balance as of the immediately preceding Distribution Date (after
giving effect to changes in the Class A-2 Note Balance made on such immediately
preceding Distribution Date) or, in the case of the first Distribution Date, the
Initial Class A-2 Note Balance.
"Class A-2 Loss Amount" means, with respect to any Distribution
Date, the product of (a) the Class A-2 Allocation Percentage, (b) the Investor
Percentage with regard to Loss Amounts for the related Collection Period, and
(c) the Loss Amount for the related Collection Period allocable to the 99.8%
1997-B SUBI Interest.
"Class A-2 Note" means one of the Notes executed by the Owner
Trustee and authenticated by the Indenture Trustee in substantially the form set
forth in Exhibit B to the Indenture.
"Class A-2 Note Balance" shall initially equal the Initial Class
A-2 Note Balance and, on any date, shall equal the Initial Class A-2 Note
Balance, reduced by the sum of (i) all amounts distributed to Class A-2
Noteholders and allocable to principal on or prior to such date and (ii) the
amount, if any, by which (a) the aggregate of all Class A-2 Note Principal Loss
Amounts on or prior to such date exceeds (b) the aggregate of all Class A-2 Note
Principal Loss Amounts reimbursed on or prior to such date.
"Class A-2 Note Factor" means, with respect to any Distribution
Date, a seven-digit decimal figure equal to the Class A-2 Note Balance as of the
close of business on such Distribution Date (after giving effect to all changes
in the Class A-2 Note Balance made on that date) divided by the Initial Class
A-2 Note Balance.
"Class A-2 Noteholder" means any Holder of a Class A-2 Note.
"Class A-2 Note Principal Loss Amount" means, with respect to any
Distribution Date, the amount, if any, by which (i) the sum of the Class A-2
Loss Amount for the related Collection Period and any previously unreimbursed
Class A-2 Note Principal Loss Amount exceeds (ii) the amount available to be
distributed in respect of the Class A-2 Notes pursuant to Section 3.03(b)(vi) or
(b)(vii) on such Distribution Date.
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"Class A-2 Note Principal Loss Interest Amount" means, with
respect to any Distribution Date, the aggregate amount of accrued and unpaid
interest (at the Class A-2 Note Rate) on the aggregate amount of unreimbursed
Class A-2 Note Principal Loss Amounts.
"Class A-2 Note Rate" means ____% per annum.
"Class A-2 Principal Distributable Amount" means, with respect to
any Distribution Date related to a Collection Period in the Amortization Period,
the amount (if any) that is distributable to the Class A-2 Noteholders pursuant
to Section 3.03(d).
"Class A-2 Residual Value Loss Amount" means, as of any
Distribution Date, an amount equal to the product of (i) the Class A-2
Allocation Percentage, (ii) the Investor Percentage with respect to Loss Amounts
for the related Collection Period and (iii) the portion of the Residual Value
Loss Amount incurred in respect of such Collection Period that is allocable to
the 99.8% 1997-B SUBI Interest.
"Class A-3 Additional Loss Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-3 Allocation Percentage,
(ii) the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the portion of the Additional Loss Amount incurred
in respect of such Collection Period that is allocable to the 99.8% 1997-B SUBI
Interest.
"Class A-3 Allocation Percentage" means, as of any Distribution
Date, the Class A-3 Note Balance as of the last day of the related Collection
Period as a percentage of the then Note Balance as of such last day.
"Class A-3 Charged-off Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-3 Allocation Percentage,
(ii) the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the portion of the Charged-off Amount incurred in
respect of such Collection Period that is allocable to the 99.8% 1997-B SUBI
Interest.
"Class A-3 Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-3 Principal Distributable Amount and
the Class A-3 Interest Distributable Amount.
"Class A-3 Interest Carryover Shortfall" means, with respect to
any Distribution Date, the excess, if any, of (i) the Class A-3 Interest
Distributable Amount for such Distribution Date plus any outstanding Class A-3
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class A-3 Interest Carryover Shortfall, to the
extent permitted by law, at the Class A-3 Note Rate from such immediately
preceding Distribution Date to but not including the current Distribution Date,
over (ii) the amount of interest distributed to Class A-3 Noteholders on such
current Distribution Date.
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"Class A-3 Interest Distributable Amount" means, with respect to
any Distribution Date, the product of (i) one-twelfth of the Class A-3 Note Rate
or, in the case of the first Distribution Date, % of such amount, and (ii) the
Class A-3 Note Balance as of the immediately preceding Distribution Date (after
giving effect to changes in the Class A-3 Note Balance made on such immediately
preceding Distribution Date) or, in the case of the first Distribution Date, the
Initial Class A-3 Note Balance.
"Class A-3 Loss Amount" means, with respect to any Distribution
Date, the product of (a) the Class A-3 Allocation Percentage, (b) the Investor
Percentage with regard to Loss Amounts for the related Collection Period, and
(c) the Loss Amount for the related Collection Period allocable to the 99.8%
1997-B SUBI Interest.
"Class A-3 Note" means one of the Notes executed by the Owner
Trustee and authenticated by the Indenture Trustee in substantially the form set
forth in Exhibit C to the Indenture.
"Class A-3 Note Balance" shall initially equal the Initial Class
A-3 Note Balance and, on any date, shall equal the Initial Class A-3 Note
Balance, reduced by the sum of (i) all amounts distributed to Class A-3
Noteholders and allocable to principal on or prior to such date and (ii) the
amount, if any, by which (a) the aggregate of all Class A-3 Note Principal Loss
Amounts on or prior to such date exceeds (b) the aggregate of all Class A-3 Note
Principal Loss Amounts reimbursed on or prior to such date.
"Class A-3 Note Factor" means, with respect to any Distribution
Date, a seven-digit decimal figure equal to the Class A-3 Note Balance as of the
close of business on such Distribution Date (after giving effect to all changes
in the Class A-3 Note Balance made on that date) divided by the Initial Class
A-3 Note Balance.
"Class A-3 Noteholder" means any Holder of a Class A-3 Note.
"Class A-3 Note Principal Loss Amount" means, with respect to any
Distribution Date, the amount, if any, by which (i) the sum of the Class A-3
Loss Amount for the related Collection Period and any previously unreimbursed
Class A-3 Note Principal Loss Amount exceeds (ii) the amount available to be
distributed in respect of the Class A-3 Notes pursuant to Section 3.03(b)(vi) or
(b)(vii) on such Distribution Date.
"Class A-3 Note Principal Loss Interest Amount" means, with
respect to any Distribution Date, the aggregate amount of accrued and unpaid
interest (at the Class A-3 Note Rate) on the aggregate amount of unreimbursed
Class A-3 Note Principal Loss Amounts.
"Class A-3 Note Rate" means ____% per annum.
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"Class A-3 Principal Distributable Amount" means, with respect to
any Distribution Date related to a Collection Period in the Amortization Period,
the amount (if any) that is distributable to the Class A-3 Noteholders pursuant
to Section 3.03(d).
"Class A-3 Residual Value Loss Amount" means, as of any
Distribution Date, an amount equal to the product of (i) the Class A-3
Allocation Percentage, (ii) the Investor Percentage with respect to Loss Amounts
for the related Collection Period and (iii) the portion of the Residual Value
Loss Amount incurred in respect of such Collection Period that is allocable to
the 99.8% 1997-B SUBI Interest.
"Class A-4 Additional Loss Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-4 Allocation Percentage,
(ii) the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the portion of the Additional Loss Amount incurred
in respect of such Collection Period that is allocable to the 99.8% 1997-B SUBI
Interest.
"Class A-4 Allocation Percentage" means, as of any Distribution
Date, the Class A-4 Note Balance as of the last day of the related Collection
Period as a percentage of the then Note Balance as of such last day.
"Class A-4 Charged-off Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class A-4 Allocation Percentage,
(ii) the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the portion of the Charged-off Amount incurred in
respect of such Collection Period that is allocable to the 99.8% 1997-B SUBI
Interest.
"Class A-4 Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-4 Principal Distributable Amount and
the Class A-4 Interest Distributable Amount.
"Class A-4 Interest Carryover Shortfall" means, with respect to
any Distribution Date, the excess, if any, of (i) the Class A-4 Interest
Distributable Amount for such Distribution Date plus any outstanding Class A-4
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class A-4 Interest Carryover Shortfall, to the
extent permitted by law, at the Class A-4 Note Rate from such immediately
preceding Distribution Date to but not including the current Distribution Date,
over (ii) the amount of interest distributed to Class A-4 Noteholders on such
current Distribution Date.
"Class A-4 Interest Distributable Amount" means, with respect to
any Distribution Date, the product of (i) one-twelfth of the Class A-4 Note Rate
or, in the case of the first Distribution Date, % of such amount, and (ii) the
Class A-4 Note Balance as of the immediately preceding Distribution Date (after
giving effect to changes in the Class A-4 Note Balance made on such immediately
preceding Distribution Date) or, in the case of the first Distribution Date, the
Initial Class A-4 Note Balance.
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"Class A-4 Loss Amount" means, with respect to any Distribution
Date, the product of (a) the Class A-4 Allocation Percentage, (b) the Investor
Percentage with regard to Loss Amounts for the related Collection Period, and
(c) the Loss Amount for the related Collection Period allocable to the 99.8%
1997-B SUBI Interest.
"Class A-4 Note" means one of the Notes executed by the Owner
Trustee and authenticated by the Indenture Trustee in substantially the form set
forth in Exhibit D to the Indenture.
"Class A-4 Note Balance" shall initially equal the Initial Class
A-4 Note Balance and, on any date, shall equal the Initial Class A-4 Note
Balance, reduced by the sum of (i) all amounts distributed to Class A-4
Noteholders and allocable to principal on or prior to such date and (ii) the
amount, if any, by which (a) the aggregate of all Class A-4 Note Principal Loss
Amounts on or prior to such date exceeds (b) the aggregate of all Class A-4 Note
Principal Loss Amounts reimbursed on or prior to such date.
"Class A-4 Note Factor" means, with respect to any Distribution
Date, a seven-digit decimal figure equal to the Class A-4 Note Balance as of the
close of business on such Distribution Date (after giving effect to all changes
in the Class A-4 Note Balance made on that date) divided by the Initial Class
A-4 Note Balance.
"Class A-4 Noteholder" means any Holder of a Class A-4 Note.
"Class A-4 Note Principal Loss Amount" means, with respect to any
Distribution Date, the amount, if any, by which (i) the sum of the Class A-4
Loss Amount for the related Collection Period and any previously unreimbursed
Class A-4 Note Principal Loss Amount exceeds (ii) the amount available to be
distributed in respect of the Class A-4 Notes pursuant to Section 3.03(b)(vi) or
(b)(vii) on such Distribution Date.
"Class A-4 Note Principal Loss Interest Amount" means, with
respect to any Distribution Date, the aggregate amount of accrued and unpaid
interest (at the Class A-4 Note Rate) on the aggregate amount of unreimbursed
Class A-4 Note Principal Loss Amounts.
"Class A-4 Note Rate" means ____% per annum.
"Class A-4 Principal Distributable Amount" means, with respect to
any Distribution Date related to a Collection Period in the Amortization Period,
the amount (if any) that is distributable to the Class A-4 Noteholders pursuant
to Section 3.03(d).
"Class A-4 Residual Value Loss Amount" means, as of any
Distribution Date, an amount equal to the product of (i) the Class A-4
Allocation Percentage, (ii) the Investor Percentage with respect to Loss Amounts
for the related Collection Period and (iii) the portion of the Residual Value
Loss Amount incurred in respect of such Collection Period that is allocable to
the 99.8% 1997-B SUBI Interest.
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"Class B Additional Loss Amount" means, as of any Distribution
Date, an amount equal to the product of (i) the Class B Allocation Percentage,
(ii) the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the portion of the Additional Loss Amount incurred
in respect of such Collection Period that is allocable to the 99.8% 1997-B SUBI
Interest.
"Class B Allocation Percentage" means, as of any Distribution
Date, the Class B Note Balance as of the last day of the related Collection
Period as a percentage of the then Note Balance as of such last day.
"Class B Charged-Off Amount" means, as of any Distribution Date,
an amount equal to the product of (i) the Class B Allocation Percentage, (ii)
the Investor Percentage with respect to Loss Amounts for the related Collection
Period and (iii) the portion of the Charged-off Amount incurred in respect of
such Collection Period that is allocable to the 99.8% 1997-B SUBI Interest.
"Class B Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class B Principal Distributable Amount and the
Class B Interest Distributable Amount.
"Class B Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class B Interest Distributable
Amount for such Distribution Date plus any outstanding Class B Interest
Carryover Shortfall from the immediately preceding Distribution Date plus
interest on such outstanding Class B Interest Carryover Shortfall, to the extent
permitted by law, at the Class B Note Rate from such immediately preceding
Distribution Date to but not including the current Distribution Date over (ii)
the amount of interest distributed to Class B Noteholders on such current
Distribution Date.
"Class B Interest Distributable Amount" means, with respect to
any Distribution Date, the product of (i) one-twelfth of the Class B Note Rate
or, in the case of the first Distribution Date, % of such amount, and (ii) the
Class B Note Balance as of the immediately preceding Distribution Date (after
giving effect to changes in the Class B Note Balance made on such immediately
preceding Distribution Date) or, in the case of the first Distribution Date, the
Initial Class B Note Balance.
"Class B Loss Amount" means, with respect to any Distribution
Date, the product of (a) the Class B Allocation Percentage, (b) the Investor
Percentage with regard to Loss Amounts for the related Collection Period, and
(c) the Loss Amount for the related Collection Period allocable to the 99.8%
1997-B SUBI Interest.
"Class B Note" means any one of the Notes executed by the Owner
Trustee and authenticated by the Indenture Trustee in substantially the form set
forth in Exhibit E to the Indenture.
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"Class B Note Balance" shall initially equal the Initial Class B
Note Balance and, on any date, shall equal the Initial Class B Note Balance,
reduced by the sum of (i) all amounts distributed to Class B Noteholders and
allocable to principal on or prior to such date, (ii) the amount, if any, by
which (a) the aggregate of all Class B Note Principal Loss Amounts on or prior
to such date exceeds (b) the aggregate of all Class B Note Principal Loss
Amounts reimbursed on or prior to such date, and (iii) the amount, if any, by
which (a) the aggregate of all Class B Note Principal Carryover Shortfalls on or
prior to such Distribution Date exceeds (b) the aggregate of all Class B Note
Principal Carryover Shortfalls reimbursed on or prior to such date.
"Class B Note Factor" means, with respect to any Distribution
Date, a seven-digit decimal figure equal to the Class B Note Balance as of the
close of business on such Distribution Date (after giving effect to all changes
in the Class B Note Balance made on that date) divided by the Initial Class B
Note Balance.
"Class B Note Principal Carryover Shortfall" means, with respect
to any Distribution Date, the amount that otherwise would have been made
available for reinvestment in additional 1997-B SUBI Assets pursuant to Section
11.02 of the 1997-B SUBI Supplement (if on a Distribution Date related to a
Collection Period in the Revolving Period) or distributed to the Class B
Noteholders (if on a Distribution Date related to a Collection Period in the
Amortization Period), in each case in respect of Principal Collections pursuant
to Section 3.03(d), but instead is applied as set forth in clauses (vi), (vii)
and (viii) of Section 3.03(b) pursuant to Section 3.03(e).
"Class B Note Principal Carryover Shortfall Interest Amount"
means, with respect to any Distribution Date, the aggregate amount of accrued
and compounded interest (at the Class B Note Rate) on the aggregate amount of
unreimbursed Class B Note Principal Carryover Shortfall as of the immediately
preceding Distribution Date.
"Class B Note Principal Loss Amount" means, with respect to any
Distribution Date, the amount, if any, by which (i) the sum of the Class B Loss
Amount for the related Collection Period and any previously unreimbursed Class B
Note Principal Loss Amount exceeds (ii) the amount available to be distributed
pursuant to Section 3.03(b)(ix) or (b)(x) on such Distribution Date.
"Class B Note Principal Loss Interest Amount" means, with respect
to any Distribution Date, the aggregate amount of accrued and unpaid interest
(at the Class B Note Rate) on the aggregate amount of unreimbursed Class B Note
Principal Loss Amounts.
"Class B Note Rate" means ____% per annum.
"Class B Noteholder" means any Holder of a Class B Note.
"Class B Percentage" means the Class B Note Balance immediately
after the [Class A-3 Notes] have been paid in full as a percentage of the Note
Balance at such time.
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"Class B Principal Distributable Amount" means, with respect to
any Distribution Date related to a Collection Period in the Amortization Period,
the amount (if any) that is distributable to the Class B Noteholders pursuant to
Section 3.03(d).
"Class B Residual Value Loss Amount" means, as of any
Distribution Date, an amount equal to the product of (i) the Class B Allocation
Percentage, (ii) the Investor Percentage with respect to Loss Amounts for the
related Collection Period and (iii) the portion of the Residual Value Loss
Amount incurred in respect of such Collection Period that is allocable to the
99.8% 1997-B SUBI Interest.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means _________, 1997.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, and
any successor thereto.
"Corporate Trust Office" means, (a) with respect to the Indenture
Trustee, as set forth in the Indenture, and (b) with respect to the Owner
Trustee, the Corporate Trust Department of the Owner Trustee located at 000
Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, or at such other
address as the Owner Trustee may designate from time to time by notice to the
Indenture Trustee, the Transferor, the Servicer and the Trust, or the principal
corporate trust office of any successor Owner Trustee.
"Current Lease" means each 1997-B Lease that is not a Charged-off
Lease, a Matured Lease, a Liquidated Lease or an Additional Loss Lease.
"Definitive Notes" shall have the meaning specified in Section
2.10 of the Indenture.
"Delinquency Rate" means, with respect to any Collection Period,
the percentage equivalent to a fraction, the numerator of which is the number of
outstanding 1997-B Leases as to which, as of the last day of such Collection
Period, all or any part of a Monthly Lease Payment in excess of $40 is unpaid
(including without limitation because of a check being returned for insufficient
funds) 61 days or more after its Due Date (other than a 1997-B Lease as to which
an extension has been granted with respect to such Due Date by the Servicer
pursuant to clause (ii) of Section 2.02(b) of the Servicing Agreement and
Section 9.02(a) of the 1997-B Servicing Supplement), whether or not (a) the
related 1997-B Leased Vehicle has been
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repossessed (or the process of repossession has been commenced) but has not yet
been sold or otherwise disposed of during such Collection Period, or (b) the
related Obligor is the subject of bankruptcy or similar proceedings, and the
denominator of which is the aggregate number of Current Leases on the last day
of such Collection Period.
"Delinquency Rate Test" means that determination, made on each
Determination Date, of the average of the Delinquency Rates for each of the
three immediately preceding Collection Periods (or the months of _______ and
_______ 1997 in the case of the __________ 1997 Determination Date, the months
of _______ and _______ 1997 and the __________ 1997 Collection Period in the
case of the _____ 1997 Determination Date, and the month of _______ 1997 and the
_______ and _______ 1997 Collection Periods in the case of the _______ 1997
Determination Date. The Delinquency Rate Test will be satisfied if such average
is ____% or less.
"Determination Date" means, with respect to any Distribution
Date, the second Business Day prior to such Distribution Date.
"Distribution Account" means the account or accounts designated
as such and established and maintained pursuant to Section 3.01.
"Distribution Date" means, with respect to a Collection Period,
the twenty-fifth day of the following month, or if that day is not a Business
Day, the next Business Day, beginning with _________, 1997.
"Downgrade Reserve Fund Formula" means the greatest amount that
any Rating Agency shall require for calculation of the Reserve Fund Cash
Requirement in order to maintain its then-current rating on any Class of Notes.
"Downgrade Reserve Fund Supplemental Requirement" means the
greatest amount that any Rating Agency shall require to be deposited into the
Reserve Fund in order to maintain its then-current ratings on any Class of
Notes.
"Downgrade Trigger Event" means that the RV Insurer's claims
paying ability is downgraded to "Aa3" or lower by Moody's, or below "AAA" by
Standard & Poors.
"Early Amortization Event" has the meaning set forth in Section
8.01.
"Early Termination Amount" means, as of any Distribution Date, an
amount equal to the sum of the Discounted Principal Balances, as of the end of
the related Collection Period, of any Early Termination Leases that became Early
Termination Leases during that related Collection Period, such Discounted
Principal Balances calculated without reference to payments received by the
Servicer in the form of non-cash items, but only to the extent that such sum
exceeds the amount transferred to the 1997-B SUBI Collection Account from the
Residual Value Surplus
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Account on the related Deposit Date pursuant to clause (z) of Section 12.03(b)
of the 1997-B SUBI Supplement.
"Entitlement Holder" has the meaning set forth in Section
8-102(a)(7) of the UCC.
"Entitlement Orders" has the meaning set forth in Section
8-102(a)(8) of the UCC.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Compliance Test" means the timely, true and accurate
certification, on or before each Determination Date, by the Servicer to the
Indenture Trustee and each Rating Agency to the effect set forth in Section
10.03(c) of the 1997-B Servicing Supplement.
"Excess Collections" means, with respect to any Distribution
Date, the remaining amount on deposit in the Distribution Account in respect of
such Distribution Date after all distributions pursuant to Section 3.03(b) have
been made, net of any amount required to maintain the Distribution Account in
good standing.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Final Scheduled Distribution Date" means the June 2003
Distribution Date.
"Financial Intermediary" means a financial intermediary, as such
term is defined in Section 8-313(4) of the UCC.
"Flow-Through Entity" has the meaning set forth in Section
4.03(a).
"Holder" of a Note or "Noteholder" means the Person in whose name
such Note is registered in the Note Register, except that, solely for the
purposes of giving any consent, waiver, request or demand pursuant to this
Agreement, the interest evidenced by any Note registered in the name of the
Transferor, ALFI LP or WOFCO, or any Person controlling, controlled by or under
common control with the Transferor, ALFI LP or WOFCO, shall not be taken into
account in determining whether the requisite percentage necessary to effect any
such consent, waiver, request or demand shall have been obtained. "Holder" of
the Transferor Certificate means the Transferor.
"Indenture" has the meaning set forth in Recital G.
"Indenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Indenture Trustee" means the Person acting as the Indenture
Trustee under this Agreement, its successor in interest, and any successor
trustee appointed.
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"Independent Director" means a director of the general partner of
the Transferor who shall at no time be (i) a director, officer, employee or
former employee of any Affiliate of the Transferor, (ii) a natural person
related to any director, officer, employee or former employee of any Affiliate,
(iii) a holder (directly or indirectly) of any voting securities of any
Affiliate, or (iv) a natural person related to a holder (directly or indirectly)
of any voting securities of any Affiliate. For these purposes, "Affiliate" shall
mean any entity other than the Transferor or any similarly organized special
purpose finance subsidiary of an Affiliate (i) which owns beneficially, directly
or indirectly, more than 10% of the outstanding shares of the common stock or
partnership interests of the Transferor, (ii) which is in control of the
Transferor, as currently defined under ss. 230.405 of the Rules and Regulations
of the Commission, 17 C.F.R. ss. 230.405, (iii) of which 10% or more of the
outstanding shares of its common stock or partnership interests are owned
beneficially, directly or indirectly, by any entity described in clause (i) or
(ii) above, or (iv) which is controlled by an entity described in clause (i) or
(ii) above, as currently defined under ss. 230.405 of the Rules and Regulations
of the Commission, 17 C.F.R. ss. 230.405.
"Indorsement" has the meaning set forth in Section 8-304 of the
UCC.
"Initial Class A Note Balance" means the sum of the Initial Class
A-1 Note Balance, the Initial Class A-2 Note Balance, the Initial Class A-3 Note
Balance and the Initial Class A-4 Note Balance.
"Initial Class A-1 Note Balance" means $___________.
"Initial Class A-2 Note Balance" means $___________.
"Initial Class A-3 Note Balance" means $___________.
"Initial Class A-4 Note Balance" means $___________.
"Initial Class B Note Balance" means $___________.
"Initial Note Balance" means the sum of the Initial Class A Note
Balance and the Initial Class B Note Balance.
"Insurance Policy" means, with respect to a 1997-B Lease, 1997-B
Leased Vehicle or Obligor under a 1997-B Lease, any policy of comprehensive,
collision, public liability, physical damage, personal liability, credit health
or accident, credit life or employment insurance, or any other form of
insurance.
"Insured Residual Value Loss Amount" means, as of any
Distribution Date, the lesser of: (i) the product of (A) the Investor Percentage
with respect to Loss Amounts for the related Collection Period, and (B) the
portion of the Residual Value Loss Amount incurred during such Collection Period
that is allocable to the 99.8% 1997-B SUBI Interest; and (ii) the shortfall if
any, described in clause [(ii)] of Section 3.03(e).
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"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Investor Percentage" means, with respect to any Collection
Period,
(a) as used with respect to Interest Collections
and Loss Amounts allocable to the 99.8% 1997-B SUBI Interest, the
percentage equivalent of a fraction (not to exceed 100%), the
numerator of which is the Note Balance as of the last day of the
immediately preceding Collection Period (or, in the case of the
first Collection Period, the Initial Note Balance), and the
denominator of which is 99.8% of the Aggregate Net Investment
Value as of the last day of the immediately preceding Collection
Period (or, in the case of the first Collection Period, the
Initial Cutoff Date); and
(b) as used with respect to Principal Collections
allocable to the 99.8% 1997- B SUBI Interest, the percentage
equivalent of a fraction (not to exceed 100%), the numerator of
which is the Note Balance and the denominator of which is 99.8%
of the Aggregate Net Investment Value, each as of the last day of
the last full Collection Period preceding the first to occur of
the Amortization Date or any Early Amortization Event.
"Liquidated Lease" means a 1997-B Lease that (a) has been the
subject of a Prepayment in full, or (b) has been paid in full, regardless of
whether all or any part of such payment has been made by the Obligor under the
related 1997-B Lease, the Servicer pursuant to the Servicing Agreement or 1997-B
Servicing Supplement, an insurer pursuant to an Insurance Policy or the
Residual Value Insurance Policy or otherwise.
"Liquidation Expenses" means reasonable out-of-pocket expenses
incurred by the Servicer in connection with the realization of the full amounts
due or to become due under any 1997-B Lease, including expenses incurred in
connection with the repossession of any 1997- B Leased Vehicle, the sale or
other disposition of a 1997-B Leased Vehicle, whether upon repossession or upon
return of a 1997-B Leased Vehicle related to a Matured Lease, any collection
effort (whether or not resulting in a lawsuit against the Obligor under such
1997-B Lease) or any application for Insurance Proceeds.
"Loss Amount" means, with respect to any Distribution Date, an
amount equal to the sum of the Charged-off Amount, the Residual Value Loss
Amount and the Additional Loss Amount, in each case for the related Collection
Period.
"Moody's" means Xxxxx'x Investors Service, Inc., and its
successors.
"1997-B Servicing Supplement" has the meaning set forth in
Recital D.
"1997-B SUBI" has the meaning set forth in Recital C.
"1997-B SUBI Certificates" has the meaning set forth in Recital
C.
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"1997-B SUBI Portfolio" has the meaning set forth in Recital C.
"1997-B SUBI Supplement" has the meaning set forth in Recital C.
"99.8% 1997-B SUBI Certificate" has the meaning set forth in
Recital C.
"99.8% 1997-B SUBI Interest" has the meaning set forth in Section
2.02.
"Note Balance" initially means the Initial Note Balance and, as
of any date, means the sum of the Class A Note Balance and the Class B Note
Balance as of the close of business on such date, after giving effect to any
changes therein on such date.
"Noteholder" means the Holder of a Note.
"Note Owner" means, with respect to a Book-Entry Note, the Person
who is the owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly or as an indirect participant in accordance with the
rules of such Clearing Agency) and shall mean, with respect to a Definitive
Note, the related Noteholder.
"Note Rate" means the Class A-1 Note Rate, the Class A-2 Note
Rate, the Class A-3 Note Rate, the Class A-4 Note Rate or the Class B Note Rate,
as the case may be.
"Note Register" means the register maintained pursuant to the
Indenture.
"Notice of Adverse Claim" has the meaning set forth in Section
8-102(a)(1) and 8-105 of the UCC.
"Officer's Certificate" means a certificate signed by the
President, any Vice President, the Treasurer or any Assistant Treasurer, the
Secretary or any Assistant Secretary of the general partner of the Transferor or
the Servicer, as the case may be, and delivered to the Indenture Trustee or the
Owner Trustee, as applicable.
"Opinion of Counsel" means a written opinion of counsel (who, in
the case of counsel to the Transferor or the Servicer, may be an employee of or
outside counsel to the Transferor or the Servicer), which counsel, in the case
of an opinion delivered to the Indenture Trustee or the Owner Trustee,
respectively, shall be reasonably acceptable to such Trustee.
"Origination Trust" has the meaning set forth in Recital A.
"Origination Trust Agreement" has the meaning set forth in
Recital A.
"Origination Trustee" has the meaning set forth in Recital A.
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"Outstanding Advances" means, with respect to a Distribution
Date, the sum of all Advances made as of or prior to such date minus all
payments or collections as of or prior to such date that are specified in
Section 9.02(g) of the 1997-B Servicing Supplement as applied to reimburse such
Advance as are unreimbursed or are Nonrecoverable Advances.
"Owner Trustee" means the Person acting as Owner Trustee under
this Agreement, its successor in interest, and any successor trustee appointed
pursuant to Section 6.08.
"Percentage Interest" means, as to any Note, the percentage
obtained by dividing the outstanding principal balance of such Note by the Note
Balance or by the Class A Note Balance, the Class A-1 Note Balance, the Class
A-2 Note Balance, the Class A-3 Note Balance, the Class A-4 Note Balance or the
Class B Note Balance, as the context may require; provided, however, that where
the Percentage Interest is relevant in determining whether the vote of the
requisite percentage of Noteholders necessary to effect any consent, waiver,
request or demand shall have been obtained, the aggregate Percentage Interest
shall be deemed to be reduced by the amount equal to the Percentage Interest
(without giving effect to this provision) represented by the interests evidenced
by any such Note that is registered in the name of the Transferor, WOFCO or any
Person controlling, controlled by or under common control with the Transferor or
WOFCO.
"Permitted Investments" means any one or more of the following
instruments, obligations or securities, in each case with a remaining term to
maturity of no more than one year:
(a)(i) direct obligations of, and obligations
guaranteed as to full and timely payment of principal and
interest by, the United States or any agency or instrumentality
of the United States the obligations of which are backed by the
full faith and credit of the United States (other than the
Government National Mortgage Association), and (ii) direct
obligations of, or obligations fully guaranteed by, the Federal
National Mortgage Association or any State then rated with the
highest available credit rating of each Rating Agency for such
obligations, which obligations are, at the time of investment,
otherwise acceptable to each Rating Agency for securities having
a rating at least equivalent to the rating of the Class A Notes
at the Closing Date;
(b) certificates of deposit, demand or time
deposits of, bankers' acceptances issued by, or federal funds
sold by any depository institution or trust company (including
the Indenture Trustee or Owner Trustee) incorporated under the
laws of the United States or any State and subject to supervision
and examination by federal and/or State banking authorities and
the deposits of which are fully insured by the Federal Deposit
Insurance Corporation, so long as at the time of such investment
or contractual commitment providing for such investment either
such depository institution or trust company has the Required
Rating or the Indenture Trustee shall have received a letter from
each Rating Agency to the effect that such investment would not
result in the qualification, downgrading or withdrawal of the
ratings then assigned to any Rated Securities;
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(c) repurchase obligations held by the Indenture
Trustee that are acceptable to the Indenture Trustee with respect
to (i) any security described in clause (a) above or (e) below,
or (ii) any other security issued or guaranteed by any agency or
instrumentality of the United States, in either case entered into
with a federal agency or depository insti tution or trust company
(including the Indenture Trustee) acting as principal, whose
obligations having the same maturity as that of the repurchase
agreement would be Permitted Investments under clause (b) above;
provided, however, that repurchase obligations entered into with
any particular depository institution or trust company (including
the Indenture Trustee or Owner Trustee) will not be Permitted
Investments to the extent that the aggregate principal amount of
such repurchase obligations with such depository institution or
trust company held by the Indenture Trustee on behalf of the
Trust shall exceed 10% of either the Aggregate Net Investment
Value or the aggregate unpaid principal balance or face amount,
as the case may be, of all Permitted Investments held by the
Indenture Trustee on behalf of the Trust;
(d) securities bearing interest or sold at a
discount issued by any corporation incorporated under the laws of
the United States or any State so long as at the time of such
investment or contractual commitment providing for such
investment either the long-term, unsecured debt of such
corporation has the highest available rating from each Rating
Agency or the Indenture Trustee shall have received a letter from
each Rating Agency to the effect that such investment would not
result in the qualification, downgrading or withdrawal of the
ratings then assigned to any Rated Securities, or commercial
paper or other short-term debt having the Required Rating;
provided, however, that any such commercial paper or other
short-term debt may have a remaining term to maturity of no
longer than 30 days after the date of such investment or
contractual commitment providing for such investment, and that
securities issued by any particular corporation will not be
Permitted Investments to the extent that investment therein will
cause the then outstanding principal amount or face amount, as
the case may be, of securities issued by such corporation and
held by the Indenture Trustee on behalf of the Trust to exceed
10% of either the Aggregate Net Investment Value or the aggregate
unpaid principal balance or face amount, as the case may be, of
all Permitted Investments held by the Indenture Trustee on behalf
of the Trust;
(e) interests in any open-end or closed-end
management type investment company or investment trust (i)
registered under the Investment Company Act, the portfolio of
which is limited to the obligations of, or guaranteed by, the
United States and to agreements to repurchase such obligations,
which agreements, with respect to principal and interest, are at
least 100% collateralized by such obligations marked to market on
a daily basis and the investment company or investment trust
shall take delivery of such obligations either directly or
through an independent custodian designated in accordance with
the Investment Company Act and (ii) acceptable to each Rating
Agency (as
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approved in writing by each Rating Agency) as collateral for
securities having ratings equivalent to the ratings of the Rated
Securities on the Closing Date;
(f) guaranteed reinvestment agreements issued by
any bank, insurance company or other corporation (as approved in
writing by each Rating Agency) as will not result in the
qualification, downgrading or withdrawal of the ratings then
assigned to any Rated Securities by each Rating Agency;
(g) investments in Permitted Investments maintained
in "sweep accounts," short-term asset management accounts and the
like utilized for the investment, on an overnight basis, of
residual balances in investment accounts maintained at the
Indenture Trustee or any other depository institution or trust
company organized under the laws of the United States or any
state that is a member of the Federal Deposit Insurance
Corporation, the short-term debt of which has the highest
available credit rating of each Rating Agency; provided, however,
that any such account must be maintained with an institution
meeting the requirements of Section 3.01 applicable to the
Distribution Account;
(h) guaranteed investment contracts entered into
with any financial institution having a final maturity of not
more than one month from the date of acquisition, the short-term
debt securities of which institution have the Required Rating;
(i) funds classified as money market funds or
invested in money market instruments consisting of: U.S. Treasury
bills, other obligations issued or guaranteed by the U.S.
government, its agencies or instrumentalities; certificates of
deposit; banker's acceptances; and commercial paper (including
variable master demand notes); provided, however, that the fund
or the investment in the fund shall be rated with the highest
available credit rating of each Rating Agency, and redemptions
shall be permitted on a daily or next business day basis; and
(j) such other investments acceptable to each
Rating Agency (as approved in writing by each Rating Agency) as
will not result in the qualification, downgrading or withdrawal
of the ratings then assigned to any Rated Securities by such
Rating Agency.
Notwithstanding anything to the contrary contained in the foregoing definition:
(a) no Permitted Investment may be purchased at a
premium;
(b) any of the foregoing which constitutes a
certificated security shall not be considered a Permitted
Investment unless
(i) in the case of a certificated
security that is in bearer form, (A) the Indenture
Trustee acquires physical possession of such
certificated security, or
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(B) a person, other than a Securities Intermediary,
acquires possession of such certificated security
on behalf of the Indenture Trustee; and
(ii) in the case of a certificated
security that is in registered form, (A)(1) the
Indenture Trustee acquires physical possession of
such certificated security, (2) a person, other
than a Securities Intermediary, acquires possession
of such certificated security on behalf of the
Indenture Trustee, or (3) a Securities Intermediary
acting on behalf of the Indenture Trustee acquires
possession of such certificated security and such
certificated security has been specially indorsed
to the Indenture Trustee, and (B) (1) such
certificated security is indorsed to the Indenture
Trustee or in blank by an effective Indorsement, or
(2) such certificated security is registered in the
name of the Indenture Trustee;
(c) any of the foregoing that constitutes an
uncertificated security shall not be considered a Permitted
Investment unless (A) the Indenture Trustee is registered by the
issuer as the owner thereof, (B) a person, other than a
Securities Intermediary, becomes the registered owner of such
uncertificated security on behalf of the Indenture Trustee, or
(C) the issuer of such uncertificated security agrees that it
will comply with the instructions originated by the Indenture
Trustee without further consent by any registered owner of such
uncertificated security;
(d) any of the foregoing that constitutes a
Security Entitlement shall not be considered a Permitted
Investment unless (A) the Indenture Trustee becomes the
Entitlement Holder thereof, or (B) the Securities Intermediary
has agreed to comply with the Entitlement Orders originated by
the Indenture Trustee without further consent by the Entitlement
Holder; and
(e) any of the foregoing shall not constitute a
Permitted Investment unless the Indenture Trustee (A) has given
value, and (B) does not have Notice of an Adverse Claim.
For purposes of this definition, any reference to the highest
available credit rating of an obligation shall mean the highest available credit
rating for such obligation (excluding any "+" signs associated with such
rating), or such lower credit rating (as approved in writing by each Rating
Agency) as will not result in the qualification, downgrading or withdrawal of
the rating then assigned to any Rated Securities by such Rating Agency.
"Rated Securities" means each Class of Securities that has been
rated by a Rating Agency at the request of the Transferor.
"Rating Agency" means each of Moody's and Standard & Poor's and
any other nationally recognized statistical rating agency, but only if it has
rated any Class of Notes as of the Closing Date at the request of the Transferor
and continues to do so.
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"Reallocation Deposit Amount" means any amount required to be
deposited by the Servicer into the 1997-B SUBI Collection Account pursuant to
the last sentence of Section 8.03(a) of the 1997-B Servicing Supplement.
"Record Date" means, with respect to each Distribution Date, (i)
in the case of the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes or
the Class A-4 Notes, the calendar day immediately preceding such Distribution
Date (or, if Definitive Notes have been issued, the last day of the immediately
preceding calendar month) and (ii) in the case of the Class B Notes, the last
day of the calendar month immediately preceding the month in which such
Distribution Date occurs.
"Required Amount" means, as of any Deposit Date, the lesser of:
(a) the excess of (i) the sum of any anticipated amounts to be payable as set
forth in clauses (i) through (iv) and (vi) through (xii) of Section 3.03(b) with
respect to the related Distribution Date (plus those amounts included in clauses
(a) through (c) of the definition of "Interest Collections" in the 1997-B SUBI
Supplement), over (ii) the sum of (A) the product of (x) the Investor Percentage
with respect to Interest Collections and (y) the Interest Collections collected
during or received with respect to the related Collection Period and allocable
to the 99.8% 1997-B SUBI Interest, (B) any Transferor Amounts for the related
Distribution Date applied pursuant to Section 3.03(e)(i), and (C) the proceeds
of any claim under the Residual Value Insurance Policy pursuant to Section
9.10(b) of the 1997-B Servicing Supplement, as applied pursuant to clause (ii)
of Section 3.03(e); and (b) the total amount on deposit in the Reserve Fund
after all deposits thereto pursuant to clause (v) of Section 3.03(b).
"Required Rating" means a rating on commercial paper or other
short term unsecured debt obligations of Prime-1 by Moody's so long as Xxxxx'x
is a Rating Agency and A-1 by Standard & Poor's so long as Standard & Poor's is
a Rating Agency; and any requirement that deposits or debt obligations have the
"Required Rating" shall mean that such deposits or debt obligations have the
foregoing required ratings from Moody's and Standard & Poor's.
"Reserve Fund" means the account designated as such and
established and maintained pursuant to Section 3.04.
"Reserve Fund Cash Requirement" means with respect to any
Distribution Date the maximum sum of money required to be on deposit in the
Reserve Fund at any one time and shall be calculated as follows: (a) if a RV
Insurer Trigger Event or Downgrade Trigger Event shall have occurred and be
continuing, (i) if only one of the RV Insurer Trigger Event or Downgrade Trigger
Event shall have occurred and be continuing (and, with respect to a Downgrade
Trigger Event, the 60 day period set forth in the fourth sentence of Section
3.04(b) has elapsed and the Transferor has elected to comply with the
requirements of clause (ii) thereof rather than clause (i)), then in accordance
with the RV Insurer Trigger Event Reserve Fund Formula or Downgrade Reserve Fund
Formula, as applicable, or (ii) if both the RV Insurer Trigger Event and the
Downgrade Trigger Event shall have occurred and be continuing (and, with respect
to a Downgrade Trigger Event, the 60 day period set forth in the fourth sentence
of Section 3.04(b)
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has elapsed and the Transferor has elected to comply with the requirements of
clause (ii) thereof rather than clause (i)), then in accordance with the greater
of the RV Insurer Reserve Fund Formula or Downgrade Reserve Fund Formula from
time to time; or (b) if the ERISA Compliance Test is satisfied as of such
Distribution Date and no RV Insurer Trigger Event or Downgrade Trigger Event
shall have occurred and be continuing, (i) if all applicable Reserve Fund Tests
are satisfied as of the related Determination Date, in accordance with the Base
Reserve Fund Formula, or (ii) if any Reserve Fund Test is unsatisfied as of any
Distribution Date, in accordance with the Alternate Reserve Fund Formula.
"Reserve Fund Deficiency" means, as of any Deposit Date, the
excess, if any, of (a) the sum of any Required Amount (considered without regard
to clause (b) of the definition thereof) and any other amounts payable out of
the Reserve Fund pursuant hereto on such Deposit Date or the related
Distribution Date, over (b) the total amount on deposit in the Reserve Fund,
prior to any deposit therein by, or on behalf of, the Transferor pursuant to
Section 3.04(b).
"Reserve Fund Initial Deposit" means $_____________.
"Reserve Fund Test" means either of the Charge-off Rate Test or
the Delinquency Rate Test.
"Reserve Fund Supplemental Requirement" means, as of any Deposit
Date on which there is a Reserve Fund Deficiency, the lesser of (a) such Reserve
Fund Deficiency and (b) $__________ less the aggregate of all amounts previously
deposited by or on behalf of the Transferor into the Reserve Fund to satisfy a
Reserve Fund Deficiency.
"Residual Value Insurance Policy" means that certain Residual
Value Insurance Policy number __________ issued effective __________, 1997 by
the RV Insurer, in favor of the Servicer, the Transferor, the Indenture Trustee,
the Owner Trustee, the Origination Trustee and ALFI LP.
"Residual Value Loss Amount" means, as of any Distribution Date,
the sum of the following, but only to the extent that such sum exceeds the
amount transferred to the 1997-B SUBI Collection Account from the Residual Value
Surplus Account on the related Deposit Date pursuant to clauses (x) and (y) of
Section 12.03(b) of the 1997-B SUBI Supplement: (a) the Booked Residual Values
of all 1997-B Leased Vehicles included in Matured Leased Vehicle Inventory as of
the last day of the related Collection Period but which as of such day had
remained unsold and not otherwise disposed of by the Servicer for at least two
full Collection Periods; (b) any excess of the sum of the Booked Residual Values
of all Matured Vehicles sold or otherwise disposed of from Matured Leased
Vehicle Inventory during the related Collection Period over Net Matured Vehicle
Proceeds; and (c) any Early Termination Amount for the related Collection
Period.
"Responsible Officer" means an officer of the Owner Trustee or
Indenture Trustee, as applicable, assigned to the applicable Corporate Trust
Office, including any Vice President, any
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trust officer or any other officer performing functions similar to those
performed by the persons who at the time shall be such officers, and any other
officer of the Owner Trustee or Indenture Trustee, as applicable, to whom a
matter is referred because of his or her knowledge of and familiarity with the
particular subject.
"RV Insurer" means American International Specialty Lines
Insurance Company.
"RV Insurer Reserve Fund Supplemental Requirement" means, at any
time, the difference between (i) the greater of (A) the Reserve Fund Initial
Deposit and (B) the amount then on deposit in the Reserve Fund, and (ii)
$__________.
"RV Insurer Trigger Event" means any of the following:
(a) The RV Insurer shall file a petition commencing
a voluntary case under any chapter of the Federal bankruptcy
laws; or the RV Insurer shall file a petition or answer or
consent seeking reorganization, arrangement, adjustment, or
composition under any other similar applicable Federal law, or
shall consent to the filing of any such petition, answer, or
consent; or the RV Insurer shall appoint, or consent to the
appointment of a custodian, receiver, liquidator, trustee,
assignee, sequestrator or other similar official in bankruptcy or
insolvency of it or of any substantial part of its property, or
shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they
become due;
(b) any order for relief against the RV Insurer
shall have been entered by a court having jurisdiction in the
premises under any chapter of the Federal bankruptcy laws; or a
decree or order by a court having jurisdiction in the premises
shall have been entered approving as properly filed a petition
seeking reorganization, arrangement, adjustment, or composition
of the RV Insurer under any other similar applicable Federal law;
or a decree or order of a court having jurisdiction in the
premises for the appointment of a custodian, receiver,
liquidator, trustee, assignee, sequestrator or other similar
official in bankruptcy, receivership or insolvency of the RV
Insurer or of any substantial part of its property, or for the
winding up or liquidation of its affairs, shall have been
entered; or
(c) the Residual Value Insurance Policy shall have
been declared void or unenforceable by a court of competent
jurisdiction in a final judgment as to which the time for noting
an appeal has expired and all appeals have been decided;
in each case without: (i) one or more policies with substantially similar
coverage and provisions to the Residual Value Insurance Policy having been
issued by an insurer acceptable to each Rating Agency (as evidenced by
confirmation (written or oral) from each to the effect that such change would
not result in its then-current rating of any Rated Securities being qualified,
reduced or withdrawn), provided that the Origination Trustee, the Owner Trustee
and the Indenture Trustee shall at all times have the same rights with respect
to any replacement policy
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as with respect to the original policy; or (ii) an alternative mechanism to
support the Booked Residual Values of the 1997-B Leased Vehicles having been
approved in accordance with the procedures set forth in Section 9.01 for the
amendment hereof.
"RV Insurer Trigger Event Reserve Fund Formula" means
$____________.
"Securities" means the Notes and the Transferor Certificate.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Intermediary" has the meaning set forth in Section
8-102(a)(14) of the UCC.
"Security Entitlement" has the meaning set forth in Section
8-102(a)(17) of the UCC.
"Servicer" means WOFCO, in its capacity as servicer of the 1997-B
Leases and 1997-B Leased Vehicles, and each successor thereto (in the same
capacity) appointed pursuant to Sections 2.10 of the Servicing Agreement and
9.11 of the 1997-B Servicing Supplement, respectively.
"Servicer's Certificate" means an Officer's Certificate of the
Servicer completed and executed pursuant to Section 10.01(b) of the 1997-B
Servicing Supplement.
"Servicing Agreement" has the meaning set forth in Recital B.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc., and its successors.
"State" means any state of the United States, the District of
Columbia and the Commonwealth of Puerto Rico.
"SUBI Certificates" has the meaning set forth in Recital C.
"SUBI Certificate Agreement" has the meaning set forth in Recital
E.
"Transaction Documents" has the meaning attributed to the term
"Securitization Trust Documents" in the 1997-B SUBI Supplement.
"Transferor" means WOLSI LP, in its capacity as transferor of the
99.8% 1997-B SUBI Certificate and the 99.8% 1997-B SUBI Interest under this
Agreement, and each successor thereto (in the same capacity) pursuant to Section
2.02.
"Transferor Amounts" means, with respect to any Distribution
Date, amounts available for distribution to the Transferor in respect of the
Transferor Distributable Amount for such Distribution Date that are instead
distributed pursuant to Section 3.03(e) because of an
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insufficiency in the amount of Interest Collections available to make such
distributions on such Distribution Date (as determined pursuant to Section
3.03(e)).
"Transferor Certificate" means the Certificate executed and
authenticated by the Owner Trustee in substantially the form set forth in
Exhibit A to this Agreement.
"Transferor Distributable Amount" means, with respect to any
Distribution Date, the sum of the Transferor Principal Distributable Amount and
the Transferor Interest Distributable Amount.
"Transferor Interest" means, as of any date, an amount equal to
(i) 99.8% of the Aggregate Net Investment Value less (ii) the Note Balance.
"Transferor Interest Distributable Amount" means, with respect to
any Distribution Date, the amount equal to the Transferor Percentage (with
respect to Interest Collections) of all Interest Collections collected during or
received in respect of the related Collection Period allocable to the 99.8%
1997-B SUBI Interest, less the Transferor Percentage of Capped Indenture Trustee
Administrative Expenses, Capped Owner Trustee Administrative Expenses
and Uncapped Administrative Expenses.
"Transferor Percentage" means, with respect to Interest
Collections and Principal Collections allocable to the 99.8% 1997-B SUBI
Interest, respectively, received in or with respect to any Collection Period,
100% minus the Investor Percentage as applied for such Collection Period with
respect to such items, respectively.
"Transferor Principal Distributable Amount" means, with respect
to any Distribution Date related to a Collection Period in the Amortization
Period, the amount equal to the Transferor Percentage (with respect to Principal
Collections) of all Principal Collections collected during or received in
respect of the related Collection Period allocable to the 99.8% 1997-B SUBI
Interest.
"Trust" means the World Omni 1997-B Automobile Lease
Securitization Trust created by this Agreement, the estate of which consists or
will consist of the Trust Estate.
"Trust Estate" means (i) a 99.8% interest in the 1997-B SUBI, the
99.8% 1997-B SUBI Certificate, and all monies due and to become due thereunder
on and after the Initial Cutoff Date; (ii) such monies as are from time to time
deposited in the Distribution Account and the Reserve Fund; (iii) all rights
accruing to the holder of the 99.8% 1997-B SUBI Interest as a third-party
beneficiary of the Origination Trust Agreement, the 1997-B SUBI Supplement, the
Servicing Agreement and the 1997-B Servicing Supplement; and (iv) all proceeds
of the foregoing.
"UCC" means (a) in the case of Permitted Investments, the Uniform
Commercial Code as in effect in the State of Illinois, and (b) in all other
cases, the Uniform Commercial Code as in effect in the relevant jurisdiction.
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"Uncapped Administrative Expenses" means Administrative Expenses
that would be Capped Contingent and Excess Liability Premiums, Capped
Origination Trust Administrative Expenses, Capped Indenture Trustee
Administrative Expenses or Capped Owner Trustee Administrative Expenses,
respectively, except that they exceed $ , $ , $ (or $ , as applicable), or $ (or
$ , as applicable) in any calendar year, respectively.
"Undistributed Transferor Excess Collections" has the meaning set
forth in Section 3.03(c).
"Uninvested Principal Collections" means, as of the end of the
Revolving Period, any Principal Collections with respect to the Revolving Period
(or amounts treated as Principal Collections pursuant to Section 3.03(b)) then
on deposit in the 1997-B SUBI Collection Account that have not been reinvested
in additional 1997-B Leases and 1997-B Leased Vehicles as contemplated by
Section 8.02 of the 1997-B Servicing Supplement.
"United States" means the United States of America, its
territories and possessions and areas subject to its jurisdiction.
"U.S. Bank" has the meaning set forth in Recital A.
"Vice President" of any Person means any vice president of such
Person, whether or not designated by a number or words before or after the title
"Vice President."
"WOFCO" means World Omni Financial Corp. and its successors.
"WOLSI LP" means World Omni Lease Securitization L.P. and its
successors.
"0.2% 1997-B SUBI Certificate" has the meaning set forth in
Recital C.
SECTION 1.02. ARTICLE AND SECTION REFERENCES.
Except as otherwise specified herein, all article and section
references shall be to Articles and Sections in this Agreement.
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ARTICLE TWO
CREATION OF TRUST
SECTION 2.01. CREATION OF TRUST.
Upon the execution of this Agreement by the parties hereto, there
is hereby created the World Omni 1997-B Automobile Lease Securitization Trust.
It is the intention of the parties hereto that Issuer constitute a business
trust under the Business Statute and that this Agreement constitute the
governing instrument of such business trust. Owner Trustee shall file the
Certificate of Trust with the Secretary of State of Delaware.
SECTION 2.02. CONVEYANCE OF 99.8% 1997-B SUBI INTEREST.
In consideration of the Owner Trustee's delivery to, or upon the
order of, the Transferor of executed and authenticated Notes, in authorized
denominations, in an aggregate amount equal to the sum of the Initial Class A
Note Balance and the Initial Class B Note Balance, and of the executed and
authenticated Transferor Certificate, the Transferor does hereby transfer,
assign and otherwise convey to the Owner Trustee, in trust for the benefit of
the Noteholders and Certificateholder, to the full extent of the Transferor's
interest therein, without recourse (subject to the Transferor's obligations
herein):
(i) all right, title and interest of the Transferor in and
to a 99.8% interest in the 1997-B SUBI and the 99.8% 1997-B
SUBI Certificate evidencing that interest in the 1997-B SUBI
(such interest, the "99.8% 1997-B SUBI Interest") and all
monies due thereon and paid thereon or in respect thereof;
(ii) the right to realize upon any property that may be
deemed to secure the 99.8% 1997-B SUBI Interest;
(iii) all rights accruing to the holder of the 99.8% 1997-B
SUBI Interest as a third-party beneficiary under the Origination
Trust Agreement, the 1997-B SUBI Supplement, the Servicing
Agreement and the 1997-B Servicing Supplement; and
(iv) all proceeds of the foregoing.
The Transferor also does hereby grant to the Owner Trustee a
security interest in all of the foregoing, and the Owner Trustee shall have all
the rights, powers and privileges of a secured party under the UCC.
SECTION 2.03. ACCEPTANCE BY OWNER TRUSTEE.
The Owner Trustee does hereby accept all consideration conveyed
by the Transferor pursuant to Section 2.02 and declares that the Owner Trustee
shall hold such consideration in
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trust as herein set forth for the benefit of the Noteholders and the
Certificateholder, subject to the terms and provisions of this Agreement and the
Indenture.
ARTICLE THREE
DISTRIBUTIONS; RESERVE FUND;
STATEMENTS TO SECURITYHOLDERS
SECTION 3.01. DISTRIBUTION ACCOUNT.
(a) Pursuant to Section 9.02(d) of the 1997-B Servicing
Supplement, the Servicer (on behalf of the Owner Trustee) shall establish the
Distribution Account in the name of the Indenture Trustee for the benefit of the
Noteholders and the Certificateholder. The Distribution Account shall be an
account initially established with the Indenture Trustee and maintained with the
Indenture Trustee so long as (i) the commercial paper or other short-term
unsecured debt obligations of the Indenture Trustee have the Required Rating, or
(ii) the Distribution Account is a segregated trust account bearing a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Noteholders and Certificateholders, which
Distribution Account is located in the corporate trust department of the
Indenture Trustee and, so long as Xxxxx'x is a Rating Agency, the Indenture
Trustee has a long term deposit rating from Moody's of at least Baa3 (or such
lower rating as Moody's shall approve in writing) and corporate trust powers
under applicable federal and state laws and is organized under the laws of the
United States or any State. In the event that the Indenture Trustee no longer
meets either of the requirements stated above, then the Servicer shall, with the
Indenture Trustee's assistance as necessary, cause the Distribution Account to
be moved to a bank or trust company that satisfies the above-mentioned
requirements. The Owner Trustee hereby grants a security interest in the
Distribution Account, and all Permitted Investments therein, to the Indenture
Trustee for the benefit of the Noteholders.
(b) For so long as the depository institution or trust company
then maintaining the Distribution Account meets the requirements of either
Section 3.01(a)(i) or (ii), all amounts held in the Distribution Account shall,
to the extent permitted by applicable laws, rules and regulations, be invested,
as directed by the Servicer pursuant to Section 9.02(i) of the 1997-B Servicing
Supplement, in Permitted Investments; otherwise such amounts shall be maintained
in cash. Earnings on investment of funds in the Distribution Account shall be
retained in the Distribution Account and shall constitute part of the Trust
Estate, and losses shall be charged against the funds on deposit therein.
SECTION 3.02. COLLECTIONS.
(a) Pursuant to Sections 9.02(b) and 9.10(b) of the 1997-B
Servicing Supplement, the Servicer shall deposit all proceeds of claims made
under the Residual Value Insurance Policy into the Distribution Account within
one (1) Business Day after receipt. Pursuant to Section 12.01(c) of the 1997-B
SUBI Supplement and Section 9.02(f) of the 1997-B Servicing
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Supplement, on each Deposit Date the Servicer shall cause the transfer from the
1997-B SUBI Collection Account to the Distribution Account of 99.8% of all
Interest Collections and, on each Deposit Date related to the Collection Period
in which the Amortization Date or any Early Amortization Event occurs, and each
subsequent Collection Period, 99.8% of all Principal Collections, in each case
for the preceding Collection Period (including, on the Deposit Date related to
the Collection Period in which an Early Amortization Event occurs, 99.8% of all
Principal Collections with respect to such Collection Period prior to the Early
Amortization Event). Further, on the Deposit Date related to the Collection
Period in which the Amortization Date or any Early Amortization Event occurs,
the Servicer also shall cause the transfer from the 1997-B SUBI Collection
Account to the Distribution Account 99.8% of all Reallocation Deposit Amounts
and Uninvested Principal Collections on deposit in the 1997-B SUBI Collection
Account at the time the Amortization Period commences. Such deposit may be made
in the form of a single deposit and shall be made in immediately available
funds, no later than 3:00 p.m., New York City time, on the relevant Deposit
Date.
(b) The Indenture Trustee shall retain, subject to the provisions
of this Agreement and the other Transaction Documents, all collections on or in
respect of the 99.8% 1997-B SUBI Interest transferred to the Indenture Trustee,
on behalf of the Securityholders, in accordance with such provisions, in the
Distribution Account or the Reserve Fund, as the case may be. The Indenture
Trustee shall be deemed to have possession of such monies and collections for
purposes of Section 9-305 of the UCC of the jurisdiction in which such property
is located.
SECTION 3.03. DISTRIBUTIONS.
(a) On each Determination Date, pursuant to Section 9.02(e) of
the 1997-B Servicing Supplement, the Servicer shall calculate the amounts to be
distributed to the holders of the 1997- B SUBI Certificates, the Class A-1
Distributable Amount, the Class A-2 Distributable Amount, the Class A-3
Distributable Amount, the Class A-4 Distributable Amount, the Class B
Distributable Amount, the Transferor Distributable Amount, and all other
distributions to be made on the related Distribution Date.
(b) The rights of the Class B Noteholders to receive
distributions of Interest Collections allocable to the 99.8% 1997-B SUBI
Interest in respect of the Class B Notes shall be and are subordinated to the
rights of the Class A-1 Noteholders, the Class A-2 Noteholders, the Class A-3
Noteholders and the Class A-4 Noteholders to receive distributions of Interest
Collections allocable to the 99.8% 1997-B SUBI Interest in respect of the Class
A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes to
the extent provided in this Agreement and the Indenture. On each Distribution
Date the Indenture Trustee shall distribute the product of (i) the Investor
Percentage with respect to Interest Collections, multiplied by (ii) the Interest
Collections paid over to the Indenture Trustee from the 1997-B SUBI Collection
Account pursuant to Section 3.02(a), together with any Transferor Amounts, any
proceeds of a claim made under the Residual Value Insurance Policy pursuant to
Section 9.10(b) of the 1997-B Servicing Supplement, and the Required Amount, if
any, for such Distribution Date, and any amount of Principal Collections that
otherwise would be distributed to the Class B Noteholders
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pursuant to subsection (d) below but is required to be applied to the payment of
clauses (v), (vi) and (vii) below pursuant to subsection (e)(iv) below, in the
following amounts and otherwise in the following order of priority to the
following Persons:
(i) in the event of an Indenture Event of Default as a
result of which the Indenture Trustee has elected or has been
instructed to sell the property of the Trust pursuant to
Section 5.17 of the Indenture, to the Indenture Trustee, the
Investor Percentage of Capped Indenture Trustee Administrative
Expenses and to the Owner Trustee, the Investor Percentage of
Capped Owner Trustee Administrative Expenses;
(ii) the Class A-1 Interest Distributable Amount for such
Distribution Date together with any unpaid Class A-1 Interest
Carryover Shortfall, the Class A-2 Interest Distributable Amount
for such Distribution Date together with any unpaid Class A-2
Interest Carryover Shortfall, the unpaid Class A-3 Interest
Distributable Amount for such Distribution Date together with any
Class A-3 Interest Carryover Shortfall and the Class A-4 Interest
Distributable Amount for such Distribution Date together with any
unpaid Class A-4 Interest Carryover Shortfall, to the Class A-1,
the Class A-2, the Class A-3 and the Class A-4 Noteholders,
respectively;
(iii) the Class B Interest Distributable Amount for such
Distribution Date, together with any unpaid Class B Interest
Carryover Shortfall, to the Class B Noteholders;
(iv) in circumstances other than those set forth in clause
(i), the Investor Percentage of Capped Indenture Trustee
Administrative Expenses for the preceding Collection Period to
the Indenture Trustee and the Investor Percentage of Capped Owner
Trustee Administrative Expenses for the preceding Collection
Period to the Owner Trustee;
(v) until the amount on deposit in the Reserve Fund equals
the Reserve Fund Cash Requirement, to the Reserve Fund;
(vi) the Class A-1 Loss Amount, the Class A-2 Loss Amount,
the Class A-3 Loss Amount and the Class A-4 Loss Amount to the
Class A-1, the Class A-2, the Class A-3 and the Class A-4
Noteholders respectively;
(vii) to the Class A-1, the Class A-2, the Class A-3 and the
Class A-4 Noteholders, respectively, the aggregate amounts of the
Class A-1 Note Principal Loss Amounts, Class A-2 Note Principal
Loss Amounts, Class A-3 Note Principal Loss Amounts, and Class A-
4 Note Principal Loss Amounts, if any, for previous Distribution
Dates that have not been previously reimbursed to the Class A-1,
Class A-2, Class A-3 or Class A-4 Noteholders pursuant to this
clause (vii);
(viii) the Class A-1 Note Principal Loss Interest Amount, the
Class A-2 Note Principal Loss Interest Amount, the Class A-3 Note
Principal Loss Interest Amount and the Class
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A-4 Note Principal Loss Interest Amount, if any, for such
Distribution Date to the Class A-1, Class A-2, Class A-3 and
Class A-4 Noteholders, respectively;
(ix) the Class B Loss Amount to the Class B Noteholders;
(x) to the Class B Noteholders the aggregate amount
of the Class B Note Principal Loss Amounts and Class B Note
Principal Carryover Shortfall, if any, for previous Distribution
Dates that has not been previously reimbursed to the Class B
Noteholders pursuant to this clause (x);
(xi) the Class B Note Principal Loss Interest Amount and
the Class B Note Principal Carryover Shortfall Interest
Amount, if any, for such Distribution Date to the Class B
Noteholders;
(xii) the Investor Percentage of Uncapped Administrative
Expenses, (A) to the Origination Trustee, the Indenture Trustee
or the Owner Trustee, as applicable, and then (B) to the
Servicer, reimbursement of any previous advance of Administrative
Expenses that was made by the Servicer pursuant to Section
9.05(a) of the 1997-B Servicing Supplement and has not yet been
reimbursed; and
(xiii) the balance, if any, shall constitute Excess
Collections and shall be applied as set forth in subsection (c)
below.
Notwithstanding the foregoing, on any Distribution Date related to a Collection
Period in the Revolving Period, the amounts set forth in clauses (vi) through
(xi) above shall not be paid to the Noteholders, but shall be treated as
Principal Collections for purposes of Section 11.02 of the 1997-B SUBI
Supplement.
(c) On each Distribution Date, the Indenture Trustee shall
distribute any Excess Collections in the following amounts and in the following
order of priority:
(i) if the Distribution Date relates to a Collection Period
in the Revolving Period, then as follows:
(A) if (1) the ERISA Compliance Test is unsatisfied,
or (2) if a Downgrade Trigger Event has occurred and is
continuing, the 60 day period set forth in the fourth
sentence of Section 3.04(b) has elapsed, and the Transferor
cannot comply with the requirements of either clause (i) or
clause (ii) thereof or has determined in good faith that such
compliance would not be commercially reasonable, then any
remainder to the Reserve Fund; and
(B) if Excess Collections are not required to be
applied as set forth in clause (A) above, then any remainder
to the Transferor;
42
(ii) if the Distribution Date relates to a Collection Period
in the Amortization Period, then as follows:
(A) any remainder up to but not exceeding the product
of one-twelfth of .25% and 99.8% of the Aggregate Net
Investment Value as of the last day of the related Collection
Period (the "Accelerated Principal Distribution Amount") as
an additional principal distribution to the Noteholders as
follows: the Accelerated Principal Distribution Amount will
be distributed first to the Class A-1 Noteholders until the
Class A-1 Notes have been paid in full, second, to the Class
A-2 Noteholders until the Class A-2 Notes have been paid in
full, third, to the Class A-3 Noteholders until the Class A-3
Notes have been paid in full and fourth, the Class A
Percentage and the Class B Percentage of any remaining amount
will be distributed to the Class A-4 Noteholders and the
Class B Noteholders, respectively, until such Notes have been
paid in full;
(B) if (1) the ERISA Compliance Test is unsatisfied,
or (2) if a Downgrade Trigger Event has occurred and is
continuing, the 60 day period set forth in the fourth
sentence of Section 3.04(b) has elapsed, and the Transferor
cannot comply with the requirements of either clause (i) or
clause (ii) thereof or has determined in good faith that such
compliance would not be commercially reasonable, then the
balance of any remainder to the Reserve Fund; and
(C) if Excess Collections are not required to be
applied as set forth in clause (B) above, then the balance of
any remainder to the Transferor.
Notwithstanding the foregoing, the Transferor may instruct the Indenture Trustee
and the Servicer to redeposit into the 1997-B SUBI Collection Account any Excess
Collections that otherwise would be payable to the Transferor pursuant to the
foregoing ("Undistributed Transferor Excess Collections"), for treatment as
Collections with respect to the Collection Period during which such Distribution
Date occurs. By so instructing the Indenture Trustee and the Servicer, the
Transferor waives any right that it may be deemed to have in the related
Undistributed Transferor Excess Collections, except insofar as they become
Excess Collections payable to the Transferor in respect of a subsequent
Collection Period.
(d) On each Distribution Date beginning with the Distribution
Date related to the Collection Period in which the Amortization Period commences
and ending on the Distribution Date before the Distribution Date on which the
[Class A-3 Notes] have been paid in full, the Indenture Trustee shall distribute
an amount equal to the Investor Percentage of all Principal Collections
collected or received in respect of the related Collection Period allocable to
the 99.8% 1997-B SUBI Interest to (w) the Class A-1 Noteholders until the Class
A-1 Notes have been paid in full, (x) the Class A-2 Noteholders until the Class
A-2 Notes have been paid in full, (y) the Class A-3 Noteholders until the Class
A-3 Notes have been paid in full and (z) the Class A Percentage and the Class B
Percentage thereof to the Class A-4 Noteholders and Class B Noteholders,
respectively. On each Distribution Date after the Class A-3 Notes have been paid
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in full, the Indenture Trustee shall distribute (i) to the Class A-4
Noteholders, the Class A Percentage of Principal Collections collected or
received in respect of the related Collection Period allocable to the 99.8%
1997-B SUBI Interest and (ii) subject to subsection (e) below, to the Class B
Noteholders, the Class B Percentage of such Principal Collections. Distributions
to Noteholders pursuant to Sections 3.03(b)(vi), (vii), (ix), and (x) also shall
constitute distributions of principal. The aggregate amount of principal
distributed to any Class of Noteholders shall not exceed the Initial Note
Balance attributable to that Class of Notes.
(e) If and to the extent that the amount of Interest Collections
(measured for these purposes without regard to any deduction therefrom provided
for in clauses (a) through (c) of the definition of "Interest Collections" in
the 1997-B SUBI Supplement) available to make distributions on a Distribution
Date is insufficient to make distributions (or, on a Distribution Date related
to a Collection Period in the Revolving Period, applications as if such amounts
were Principal Collections) pursuant to Section 3.03(b) and clauses (a) through
(c) of the definition of the term "Interest Collections" in the 1997-B SUBI
Supplement, then:
(i) amounts otherwise available for distribution to the
Transferor in respect of the Transferor Interest Distributable
Amount for such Distribution Date, and then in respect of the
Transferor Principal Distributable Amount, will be applied
towards such insufficiency;
(ii) if after giving effect to clause (i), there is still a
shortfall (other than any shortfall in amounts available to apply
as set forth in clause (v) of Section 3.03(b)) in amounts
available to make all distributions (or, on a Distribution Date
related to a Collection Period in the Revolving Period,
applications as if such amounts were Principal Collections)
pursuant to Section 3.03(b) and clauses (a) through (c) of the
definition of the term "Interest Collections" in the 1997-B SUBI
Supplement, the proceeds of any claim made by the Servicer
pursuant to Section 9.10(b) of the 1997-B Servicing Supplement
will be applied towards such shortfall;
(iii) if after giving effect to clauses (i) and (ii), there
is still a shortfall (other than any shortfall in amounts
available to apply as set forth in clause (v) of Section 3.03(b))
in amounts available to make all distributions (or, on a
Distribution Date related to a Collection Period in the Revolving
Period, applications as if such amounts were Principal
Collections) pursuant to Section 3.03(b) and clauses (a) through
(c) of the definition of the term "Interest Collections" in the
1997-B SUBI Supplement, the Required Amount will be withdrawn
from the Reserve Fund and applied towards such shortfall; and
(iv) if, on a Distribution Date related to a Collection
Period during the Amortization Period, after giving effect to
clauses (i), (ii) and (iii), there is still a shortfall in
amounts required to make the distributions (or, on a Distribution
Date related to a Collection Period in the Revolving Period,
available for reinvestment in additional 1997- B SUBI Assets
pursuant to Section 11.02 of the 1997-B SUBI Supplement) pursuant
to clause (vi), (vii) or (viii) of Section 3.03(b), amounts
otherwise available for distribution
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to the Class B Noteholders in respect of principal pursuant to
subsection (d) above will be applied toward such insufficiency.
In the event that there remain shortfalls in the amounts required to be
distributed pursuant to Sections 3.03(b)(ii), (vi), (vii) or (viii) to the Class
A-1 Noteholders, the Class A-2 Noteholders, the Class A-3 Noteholders and the
Class A-4 Noteholders, the amounts available will be distributed pro rata to
Class A-1 Noteholders, Class A-2 Noteholders, Class A-3 Noteholders and Class
A-4 Noteholders based on the Class A-1 Allocation Percentage, the Class A-2
Allocation Percentage, the Class A-3 Allocation Percentage and the Class A-4
Allocation Percentage, respectively.
(f) On each Distribution Date, amounts that otherwise would be
payable to the Transferor in respect of the Transferor Distributable Amount
(other than Transferor Amounts) will be distributed to the Transferor by the
Indenture Trustee as follows: (A) if such Distribution Date relates to a
Collection Period during the Revolving Period, the interest component of such
remaining amounts will be paid in respect of the Transferor Interest
Distributable Amount and (B) if such Distribution Date relates to a Collection
Period during the Amortization Period, (1) the interest component of such
remaining amounts will be paid in respect of the Transferor Interest
Distributable Amount and (2) if and to the extent that the Transferor Interest
will be equal to or greater than zero, after all required distributions have
been made on such Distribution Date, the principal component of such remaining
amounts will be paid in respect of the Transferor Principal Distributable
Amount. Any amounts that would otherwise be payable to the Transferor pursuant
to the foregoing as the Transferor Principal Distributable Amount, but may not
be so paid because the Transferor Interest would be less than or equal to zero,
shall instead be distributed to the Noteholders pursuant to Section 3.03(d).
Upon any distribution of amounts to the Transferor, the Noteholders will have no
further rights, in, or claims to, such amounts.
(g) On the Final Scheduled Maturity Date an additional payment to
the Holders in any Class shall be made to the extent required by Section
3.04(f).
SECTION 3.04.RESERVE FUND.
(a) (i) In order to assure that sufficient amounts to make
required distributions to Noteholders will be available, pursuant to Section
9.02(e) of the 1997-B Servicing Supplement the Servicer shall establish and
maintain with the Indenture Trustee a separate trust account to be known as the
"Reserve Fund", which will include the money and other property deposited and
held therein pursuant to Section 3.03(c)(i) and this Section. The Reserve Fund
shall be an account initially established with the Indenture Trustee and
maintained with the Indenture Trustee so long as (A) the commercial paper or
other short-term unsecured debt obligations of the Indenture Trustee have the
Required Rating, or (B) the Reserve Fund is a segregated trust account bearing a
designation clearly indicating the funds deposited therein are held in trust for
the benefit of the Noteholders, which Reserve Fund is located in the corporate
trust department of the Indenture Trustee and, so long as Xxxxx'x is a Rating
Agency, the Indenture Trustee has a long-term deposit rating from Moody's of at
least Baa3 (or such lower rating as Moody's shall
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approve in writing) and corporate trust powers under applicable federal and
state laws and is organized under the laws of the United States or any State. In
the event that the Indenture Trustee no longer meets either of the requirements
stated above, then the Servicer shall, with the Indenture Trustee's assistance
as necessary, cause the Reserve Fund to be moved to a bank or trust company that
satisfies the above-mentioned requirements.
(ii) For so long as the depository institution or trust
company then maintaining the Reserve Fund meets the requirements of either
Section 3.04(a)(i)(A) or (B), all amounts held in the Reserve Fund shall, to the
extent permitted by applicable laws, rules and regulations, be invested, as
directed by the Servicer pursuant to Section 9.02(i) of the 1997-B Servicing
Supplement, in Permitted Investments; otherwise such amounts shall be maintained
in cash. Earnings on investment of funds in the Reserve Fund shall be retained
in the Reserve Fund and shall constitute part of the Trust, and losses shall be
charged against the funds on deposit therein.
(b) On or prior to the Closing Date, the Transferor shall deposit
an amount equal to the Reserve Fund Initial Deposit into the Reserve Fund. The
Transferor also does hereby grant to the Indenture Trustee a security interest
in such initial deposit, and the Indenture Trustee shall have all the rights,
powers and privileges of a secured party under the UCC. Amounts on deposit in
the Reserve Fund shall be supplemented from time to time by the deposit therein
of other funds as and to the extent described elsewhere in this Agreement.
Within 60 days after receipt of notice that an RV Insurer Trigger Event exists
and is continuing, the Transferor shall deposit into the Reserve Fund an
additional cash amount equal to the RV Insurer Reserve Fund Supplemental
Requirement. Within 60 days after the occurrence of a Downgrade Trigger Event,
then either: (i) the Transferor shall (A) cause one or more policies with
substantially similar coverage and provisions to the Residual Value Insurance
Policy to be issued by an insurer acceptable to each Rating Agency (as evidenced
by confirmation (written or oral) from each to the effect that such change would
not result in its then-current rating of any Rated Securities being qualified,
reduced or withdrawn), provided that the Origination Trustee and the Indenture
Trustee shall at all times have the same rights with respect to any replacement
policy as with respect to the original policy, or (B) cause an alternative
mechanism to support the Booked Residual Values of the 1997-B Leased Vehicles to
be implemented and approved in accordance with the procedures set forth in
Section 9.01 for the amendment hereof; or (ii) the Transferor shall deposit into
the Reserve Fund an additional cash amount equal to the Downgrade Reserve Fund
Supplemental Requirement; provided that if the Transferor cannot comply with
either clause (i) or clause (ii) or determines in good faith that such
compliance would be commercially unreasonable, Excess Collections shall be
deposited into the Reserve Fund as provided in Section 3.03(c). In addition, on
each Deposit Date relating to a Distribution Date on which a Reserve Fund
Deficiency will exist, the Transferor shall deposit into the Reserve Fund an
additional cash amount equal to the lesser of (i) such Reserve Fund Deficiency
and (ii) the Reserve Fund Supplemental Requirement. On each Distribution Date
the amounts on deposit in the Reserve Fund shall be available for distribution
as provided in Section 3.03 and, on each Distribution Date, if the amount on
deposit in the Reserve Fund (after giving effect to all deposits thereto or
withdrawals therefrom on such Distribution Date) is greater than the Reserve
Fund Cash Requirement and Excess Collections
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are not required to be deposited into the Reserve Fund pursuant to Section
3.03(c), the Indenture Trustee will distribute any remaining amounts to the
Transferor.
(c) In the event there is a Downgrade Trigger Event, the 60 day
period set forth in the fifth sentence of Section 3.04(b) has elapsed and the
Transferor has elected to comply with the requirements of clause (ii) thereof
rather than clause (i), or complies with neither of such clauses, the Rating
Agencies may impose additional conditions to the maintenance of their
then-current ratings on any Class of Notes, including conditions that may
require that this Agreement or any other Transaction Document be amended in
accordance with the provisions of Section 9.01(b) hereof or the relevant
provisions thereof.
(d) Upon termination of the Trust pursuant to Section 7.01, any
amounts on deposit in the Reserve Fund shall be available for payment of any
remaining amounts due to the Noteholders, and for payment of any remaining
amounts due to the Indenture Trustee and the Owner Trustee, and after payment of
such amounts due, shall be paid to the Transferor.
(e) Amounts properly received by the Transferor pursuant to this
Agreement shall be free of any claim of the Trust, the Indenture Trustee, the
Owner Trustee or the Noteholders and shall not be available to the Indenture
Trustee, the Owner Trustee or the Trust for the purpose of making deposits to
the Reserve Fund or making payments to the Noteholders, nor shall the Transferor
be required to refund any amount properly received by it.
(f) On the Final Scheduled Maturity Date to the extent that the
Class A-1 Initial Note Balance, the Class A-2 Initial Note Balance, the Class
A-3 Initial Note Balance, the Class A-4 Initial Note Balance or the Class B
Initial Note Balance have not been reduced to zero the Indenture Trustee shall
withdraw funds from the Reserve Fund, if available, in an amount equal to the
lesser of (A) the Class A-1 Note Balance, the Class A-2 Note Balance, the Class
A-3 Note Balance, the Class A-4 Note Balance and the Class B Note Balance and
(B) the amount in the Reserve Fund and shall pay such funds to the Holders of
such Class of Notes.
SECTION 3.05. NET DEPOSITS.
For so long as WOFCO shall be the Servicer, the Servicer and the
Indenture Trustee may make all remittances to the Distribution Account pursuant
to this Article net of amounts to be distributed by the applicable recipient to
such remitting party. The Transferor may make remittances to the Distribution
Account pursuant to this Article net of amounts distributable to the Transferor
on the related Distribution Date, provided that such amounts were to be paid
directly to the Transferor on such Distribution Date rather than deposited into
the Reserve Fund pursuant to Section 3.04. Nonetheless, each such party shall
account for all of the above described remittances and distributions as if the
amounts were deposited and/or transferred separately, and the net remittance may
only be made to the extent that the net result thereof is the same as if the
amounts were deposited and/or transferred separately.
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SECTION 3.06. STATEMENTS TO NOTEHOLDERS.
(a) On each Distribution Date, the Indenture Trustee shall
include with each distribution to each Noteholder of record, a statement,
prepared by the Servicer, based on information in the Servicer's Certificate
furnished pursuant to Section 10.01(b) of the 1997-B Servicing Supplement,
setting forth for the related Collection Period and distribution the following
information as of the related Record Date or Deposit Date or such Distribution
Date, as the case may be:
(i) the Investor Percentage for such Collection Period,
stated separately for Interest Collections and Loss Amounts, and
for Principal Collections;
(ii) the total amount being distributed to Noteholders in
such distribution;
(iii) the total amount being distributed to each Class of
Noteholders in such distribution;
(iv) the total amount of interest being distributed to each
Class of Noteholders in such distribution;
(v) the amount, if any, of Class A-1 Interest Carryover
Shortfall, Class A-2 Interest Carryover Shortfall, Class A-3
Interest Carryover Shortfall, Class A-4 Interest Carryover
Shortfall and Class B Interest Carryover Shortfall included in
such distribution;
(vi) the amount, if any, of the remaining unpaid Class A-1
Interest Carryover Shortfall, Class A-2 Interest Carryover
Shortfall, Class A-3 Interest Carryover Shortfall, Class A-4
Interest Carryover Shortfall and Class B Interest Carryover
Shortfall after giving effect to such distribution;
(vii) the total amount of principal being distributed to
each Class of Noteholders in such distribution;
(viii) the Class A-1 Allocation Percentage, the Class A-2
Allocation Percentage, the Class A-3 Allocation Percentage, the
Class A-4 Allocation Percentage, the Class B Allocation
Percentage and the amount, if any, of the reimbursement of Class
A-1 Charged-off Amounts, Class A-1 Residual Value Loss Amounts
and Class A-1 Additional Loss Amounts, Class A-2 Charged-off
Amounts, Class A-2 Residual Value Loss Amounts and Class A-2
Additional Loss Amounts, Class A-3 Charged-off Amounts, Class A-3
Residual Value Loss Amounts and Class A-3 Additional Loss
Amounts, Class A-4 Charged-off Amounts, Class A-4 Residual Value
Loss Amounts and Class A-4 Additional Loss Amounts and Class B
Charged-off Amounts, Class B Residual Value Loss Amounts and
Class B Additional Loss Amounts being included in such
distribution;
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(ix) the amount, if any, of the reimbursement of Class A-1
Note Principal Loss Amounts, Class A-2 Note Principal Loss
Amounts, Class A-3 Note Principal Loss Amounts, Class A-4 Note
Principal Loss Amounts and Class B Note Principal Loss Amounts
included in such distribution;
(x) the amount, if any, of the aggregate of unreimbursed
Class A-1 Note Principal Loss Amounts, Class A-2 Note Principal
Loss Amounts, Class A-3 Note Principal Loss Amounts, Class A-4
Note Principal Loss Amounts and Class B Note Principal Loss
Amounts after giving effect to such distribution;
(xi) the amount, if any, of accrued Class A-1 Note
Principal Loss Interest Amounts, Class A-2 Note Principal Loss
Interest Amounts, Class A-3 Note Principal Loss Interest
Amounts, Class A-4 Note Principal Loss Interest Amounts and
Class B Note Principal Loss Interest Amounts included in such
distribution;
(xii) the amount, if any, of accrued and unpaid Class A-1
Note Principal Loss Interest Amounts, Class A-2 Note Principal
Loss Interest Amounts, Class A-3 Note Principal Loss Interest
Amounts, Class A-4 Note Principal Loss Interest Amounts and Class
B Note Principal Loss Interest Amounts after giving effect to
such distribution;
(xiii) the amount, if any, of accrued and unpaid Class B
Note Principal Carryover Shortfall after giving effect to such
distribution;
(xiv) the Investor Percentage of the Servicing Fee
allocable to the 99.8% 1997-B SUBI Interest for such
Distribution Date and any unpaid previous such amounts with
respect to prior Distribution Dates;
(xv) the Note Balance, the Class A-1 Note Balance, the
Class A-2 Note Balance, the Class A-3 Note Balance, the Class
A-4 Note Balance, the Class B Note Balance, the Class A-1 Note
Factor, the Class A-2 Note Factor, the Class A-3 Note Factor,
the Class A-4 Note Factor and the Class B Note Factor, each
after giving effect to such distribution;
(xvi) the Transferor Amount, if any, included in such
distribution and the amount of the Transferor Interest, after
giving effect to all payments made on such Distribution Date;
(xvii) the Required Amount, if any, included in such
distribution;
(xviii) the Aggregate Net Investment Value as of the end of
such Collection Period;
(xix) the amount on deposit in the Reserve Fund on such
Distribution Date, after giving effect to such distributions, the
change in such balance from the immediately
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preceding Distribution Date, the Reserve Fund Cash Requirement,
the Reserve Fund Supplemental Requirement (if any), the RV
Insurer Reserve Fund Supplemental Requirement (if any) and the
Downgrade Reserve Fund Supplemental Requirement (if any);
(xx) the amount of Payments Ahead on deposit in the 1997-B
SUBI Collection Account and representing Monthly Lease Payments
due in one or more immediately subsequent Collection Periods and
the change in such balance from the immediately preceding
Distribution Date;
(xxi) the amount of Outstanding Advances on such
Distribution Date and the changes in such amount from the
immediately preceding Distribution Date;
(xxii) the balance on deposit in the Residual Value Surplus
Account on the related Deposit Date, after giving effect to
distributions therefrom made on that date, the change in such
balance from the immediately preceding Deposit Date, the
aggregate amount deposited into the Residual Value Surplus
Account on such Deposit Date, and the aggregate amount withdrawn
from the Residual Value Surplus Account on such Deposit Date;
(xxiii) the weighted average Lease Rate of the Leases in the
1997-B SUBI Portfolio for the immediately preceding Collection
Period and the Charge-off Rate and Delinquency Rate for each of
the three immediately preceding Collection Periods; and
(xxiv) the Insured Residual Value Loss Amount, if any, for
such Distribution Date.
Each amount set forth pursuant to subclauses (ii) through (xiii) above shall be
expressed as a dollar amount per $1,000 of original principal balance of a Note.
Any Note Owner may obtain a copy of any such statement, of any Servicer's
Certificate required pursuant to Section 10.01(b) of the 1997-B Servicing
Supplement, any annual report of Independent Accountants required pursuant to
Section 3.02 of the Servicing Agreement and Section 10.02 of the 1997-B
Servicing Supplement, and of any annual Officer's Certificate required pursuant
to Section 3.03 of the Servicing Agreement and Section 10.03(a) of the 1997-B
Servicing Supplement, upon written request to the Indenture Trustee at the
Corporate Trust Office.
(b) Within a reasonable period of time after the end of each
calendar year, but not later than the latest date permitted by law, the
Indenture Trustee shall mail to each Person who at any time during such calendar
year shall have been a Holder of a Note, a statement or statements which in the
aggregate contain the sum of the amounts set forth in clauses (a)(ii) through
(vii), (viii) through (xiv) above for such calendar year or, in the event such
Person shall have been a Holder of a Note during a portion of such calendar
year, for the applicable portion of such year, for the purposes of such
Noteholder's preparation of federal income tax returns. In addition, the
Servicer shall furnish to the Indenture Trustee for distribution to such Person
at such time any
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other information reasonably necessary under applicable law for the preparation
of such income tax returns.
ARTICLE FOUR
THE TRANSFEROR CERTIFICATE
SECTION 4.01. THE TRANSFEROR CERTIFICATES.
A single Transferor Certificate shall be issued. The Transferor
Certificate shall be executed on behalf of the Owner Trustee by manual or
facsimile signature of a Responsible Officer under the Owner Trustee's seal
imprinted thereon and attested on behalf of the Owner Trustee by the manual or
facsimile signature of a Responsible Officer. A Transferor Certificate bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures were affixed, authorized to sign on behalf of the Owner Trustee
shall be a valid and binding obligation of the Trust, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Transferor Certificate or did not hold such
offices at the date of such Transferor Certificate. The Transferor Certificate
shall be dated the date of its authentication.
SECTION 4.02. AUTHENTICATION AND DELIVERY OF TRANSFEROR
CERTIFICATE.
In exchange for, and simultaneously with the sale, assignment and
transfer to the Owner Trustee of the 99.8% 1997-B SUBI Interest, the 99.8%
1997-B SUBI Certificate and the other assets of the Trust, the Transferor shall
receive the Transferor Certificates and the Notes. The Owner Trustee shall cause
to be executed, authenticated and delivered to or upon the order of the
Transferor the Transferor Certificate, duly authorized by the Owner Trustee, and
evidencing the entire ownership of the Trust. The Transferor Certificate shall
not be entitled to any benefit under this Agreement, or be valid for any
purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A to this
Agreement executed by the Owner Trustee by manual signature, and such
certificate upon the Transferor Certificate shall be conclusive evidence, and
the only evidence, that such Transferor Certificate has been duly authenticated
and delivered under this Agreement.
SECTION 4.03. NO TRANSFER OF TRANSFEROR CERTIFICATE.
Subject to Section 5.03, the Transferor Certificate shall be
owned by the Transferor and may not be transferred, as provided by Section 5.06.
SECTION 4.04. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (i) any mutilated Transferor Certificate is surrendered to the
Owner Trustee, or the Owner Trustee receives evidence to its satisfaction of the
destruction, loss or theft of the Transferor Certificate, and (ii) there is
delivered to the Owner Trustee such security or indemnity
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as may be required by it to save itself and the Trust harmless, then, in the
absence of notice that such Transferor Certificate has been acquired by a bona
fide purchaser, the Owner Trustee on behalf of the Trust shall execute and the
Owner Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Transferor Certificate, a new
Transferor Certificate of like tenor and fractional undivided interest. Any
duplicate Transferor Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Transferor
Certificate shall be found at any time, and any such lost, stolen or destroyed
Transferor Certificate shall, upon issuance of any such duplicate Transferor
Certificate, be null, void and of no effect.
SECTION 4.05. PERSONS DEEMED OWNERS.
The Owner Trustee shall treat the Transferor as the owner of the
Transferor Certificate for the purpose of receiving distributions pursuant to
Section 3.03 and for all other purposes whatsoever.
ARTICLE FIVE
THE TRANSFEROR
SECTION 5.01. REPRESENTATIONS OF TRANSFEROR.
The Transferor hereby makes the following representations on
which the Owner Trustee relies in accepting the 99.8% 1997-B SUBI Interest and
99.8% 1997-B SUBI Certificate in trust and executing and authenticating the
Transferor Certificate and executing the Notes and on which the Indenture
Trustee relies in authenticating the Notes. The representations speak as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the 99.8% 1997-B SUBI Interest and 99.8% 1997-B SUBI
Certificate to the Indenture Trustee and the Owner Trustee.
(a) Organization and Good Standing. The Transferor is a
limited partnership validly organized and existing and in good
standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as
such properties shall be currently owned and such business is
presently conducted, and has power, authority and legal right to
acquire, own and sell the 99.8% 1997-B SUBI Interest and 99.8%
1997-B SUBI Certificate.
(b) Due Registration. The Transferor is duly registered as a
foreign limited partnership in good standing, and has obtained
all necessary licenses and approvals in all jurisdictions in
which the ownership or lease of property or the conduct of its
business requires such qualifications, except where the failure
to so qualify or to have obtained such licenses and approvals
would not have a material adverse effect on the earnings,
business affairs or business prospects of the Transferor.
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(c) Power and Authority. The Transferor has the power and
authority to execute and deliver this Agreement and to carry out
its terms, the Transferor has full power and authority to sell
and assign the property to be sold and assigned to and deposited
with the Owner Trustee as part of the Trust and has duly
authorized such sale and assignment to the Owner Trustee by all
necessary partnership action; and the execution, delivery and
performance of this Agreement have been duly authorized by the
Transferor by all necessary partnership action.
(d) Valid Sale; Binding Obligations. This Agreement evidences
a valid sale, transfer and assignment of the 99.8% 1997-B SUBI
Interest and 99.8% 1997-B SUBI Certificate, enforceable against
creditors of and purchasers from the Transferor; and constitutes
a legal, valid and binding obligation of the Transferor
enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability shall be considered in
a proceeding in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
of this Agreement do not conflict with, result in any breach of
any of the terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the certificate
of limited partnership or limited partnership agreement of the
Transferor, or conflict with or violate any of the material terms
or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement or other
instrument to which the Transferor is a party or by which it is
bound; nor result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than this
Agreement); nor violate any law or, to the best of the
Transferor's knowledge, any order, rule or regulation applicable
to the Transferor of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Transferor or its
properties; which breach, default, conflict, lien or violation
would have a material adverse effect on the earnings, business
affairs or business prospects of the Transferor.
(f) No Proceedings. There are no proceedings or
investigations pending, or to the Transferor's best knowledge,
threatened, before any court, regulatory body, administrative
agency or other governmental instrumentality having jurisdiction
over the Transferor or its properties: (i) asserting the
invalidity of this Agreement or the Transferor Certificate, (ii)
seeking to prevent the issuance of the Transferor Certificate or
the consummation of any of the transactions contemplated by this
Agreement, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Transferor
of its obligations under, or the validity or enforceability of,
this Agreement or the Transferor Certificate or (iv) relating to
the Transferor and which might adversely affect the federal or
Alabama income tax attributes of the Transferor Certificate.
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(g) Title to 99.8% 1997-B SUBI Certificate. The Transferor
has good title to, and is the sole legal and beneficial owner of,
the 99.8% 1997-B SUBI Certificate, free and clear of Liens.
(h) Consents and Approvals. The Transferor has obtained or
made all necessary licenses, consents, approvals, waivers and
notifications of creditors, lessors and other nongovernmental
Persons, in each case in connection with the execution and
delivery of this Agreement and the consummation of all the
transactions herein contemplated, and the Transferor is not
required to obtain the consent of any other party or the consent,
license, approval, or authorization from, or registration or
declaration with, any governmental authority, bureau or agency in
connection with the execution, delivery, performance, validity or
enforceability of this Agreement. SECTION 5.02. LIABILITY OF
TRANSFEROR; INDEMNITIES.
(a) The Transferor shall be liable in accordance with this
Agreement only to the extent of the obligations in this Agreement specifically
undertaken by the Transferor in such capacity under this Agreement and shall
have no other obligations or liabilities hereunder.
[(b) The Transferor agrees to be, and shall be, liable without
limitation for all liabilities (including taxes), contracts, expenses, indemnity
payments and other charges of the Trust, other than payments to
Noteholders.][NOTE: TO BE DELETED, SUBJECT TO CONFIRMATION BY TAX LAWYERS.]
SECTION 5.03. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, TRANSFEROR; CERTAIN LIMITATIONS.
(a) Any corporation or partnership (i) into which the Transferor
may be merged or consolidated, (ii) which may result from any merger, conversion
or consolidation to which the Transferor shall be a party or (ii) which may
succeed to all or substantially all of the business of the Transferor, shall be
the successor to the Transferor under this Agreement without the execution or
filing of any document or any further act on the part of any of the parties to
this Agreement, except that if the Transferor in any of the foregoing cases is
not the surviving entity, then the surviving entity shall execute an agreement
of assumption to perform every obligation of the Transferor either generally or
specifically as provided herein. The Transferor shall provide notice of any
merger, consolidation or succession pursuant to this Section to each Rating
Agency and shall receive confirmation (written or oral) from each Rating Agency
to the effect that such merger, consolidation, or succession will not result in
a qualification, downgrading or withdrawal of the then-current rating assigned
to any Rated Securities.
(b) (i) Subject to subparagraph (ii) below, the purpose of the
Transferor shall be to engage in any lawful activity for which a limited
partnership may be formed under the laws of the State of Delaware other than the
practice of a profession permitted to be operated through a limited partnership
under Delaware law.
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(ii) Notwithstanding subparagraph (b)(i) above, the purpose
of the Transferor shall be limited to the following purposes:
(A) to act as settlor or grantor of one or more
securitization trusts formed pursuant to a trust agreement or
other agreement for the purpose of acquiring interests in the
Origination Trust, which securitization trust may issue
certificates of beneficial interest in the assets of such
securitization trust;
(B) to acquire, own, hold, sell, transfer, convey, dispose
of, pledge, assign, borrow money against, finance, refinance or
otherwise deal with, publicly or privately and whether with
unrelated third parties or with affiliated entities, beneficial
interests in the Origination Trust, including without limitation
any undivided trust interests or special units of beneficial
interest created with respect to the Origination Trust, and
certificates of the securitization trust;
(C) to loan or otherwise invest funds received as a result of
the Transferor's beneficial interest in the Origination Trust or
certificates in the securitization trust and any other income, as
determined by the general partner of the Transferor from time to
time;
(D) to borrow money other than pursuant to clause (B) above,
but only to the extent that any such borrowing is permitted by
the terms of the transactions contemplated by clauses (A) and
(B); and
(E) to engage in any lawful act or activity and to exercise
any powers permitted to limited partnerships organized under
Delaware law that are incidental to and necessary or convenient
for the accomplishment of the foregoing purposes.
(c) Notwithstanding any other provision of this Section and any
provision of law, neither the Transferor nor its general partner, on behalf of
the Transferor, shall do any of the following:
(i) engage in any business or activity other than as set
forth in clause (b) above;
(ii) without the affirmative vote of a majority of the
members of the Board of Directors of the Transferor's general
partner (which must include the affirmative vote of all
Independent Directors of the Transferor's general partner, as
required by limited partnership agreement of the Transferor), (A)
dissolve or liquidate, in whole or in part, or institute
proceedings to be adjudicated bankrupt or insolvent, (B) consent
to the institution of bankruptcy or insolvency proceedings
against it, (C) file a petition seeking or consent to
reorganization or relief under any applicable federal or state
law relating to bankruptcy, (D) consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Transferor or a substantial part of its
property, (E) make a general assignment for the benefit of
creditors, (F) admit in
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writing its inability to pay its debts generally as they
become due, or (G) take any corporate action or partnership
action in furtherance of the actions set forth in clauses (A)
through (F) above; provided, however, that the general partner
shall in no event consent to the institution of bankruptcy or
insolvency proceedings against the Transferor so long as it is
solvent; or
(iii) merge or consolidate with any other limited
partnership, corporation, company or entity or sell all or
substantially all of its assets or acquire all or substantially
all of the assets or partnership interests or capital stock or
other ownership interest of any other limited partnership,
corporation, company or entity (except for the acquisition of
beneficial interests in the Origination Trust and the sale,
transfer, conveyance, disposition, pledge, assignment, financing,
and refinancing of, or otherwise dealing with, beneficial
interests in the Origination Trust in accordance with the terms
of subparagraph (b)(ii) above, which shall not be otherwise
restricted by this Section 5.03(c)).
SECTION 5.04. LIMITATION ON LIABILITY OF TRANSFEROR AND OTHERS.
The Transferor and any director or officer or employee or agent
of the Transferor may rely in good faith on the advice of counsel or on any
document of any kind, prima facie properly executed and submitted by any Person
respecting any matters arising under this Agreement.
SECTION 5.05. TRANSFEROR MAY OWN NOTES.
Each of the Transferor and any Person controlling, controlled by
or under common control with the Transferor may in its individual or any other
capacity become the owner or pledgee of Notes with the same rights as it would
have if it were not the Transferor or such an affiliate thereof except as
otherwise specifically provided in the definition of the term "Noteholder."
Notes so owned by or pledged to the Transferor or such controlling or commonly
controlled Person shall have an equal and proportionate benefit under the
provisions of this Agreement, without preference, priority or distinction as
among all of the Notes. The Transferor will give notice to each Rating Agency if
any such controlling or commonly controlled Person shall at any time become the
owner or pledgee of Notes.
SECTION 5.06. NO TRANSFER.
Subject to Section 5.03, the Transferor on behalf of itself and
its successors and assigns hereby covenants that it will not transfer, pledge or
assign to any Person the Transferor Certificate or any part of its right to
receive any Excess Collections pursuant to Section 3.03(c).
[SECTION 5.07. TAX MATTERS PARTNER.]
[In the event that the Trust is recharacterized as a partnership
for tax purposes, the Transferor shall act as "Tax Matters Partner" (i) to
represent the Transferor [and the Class B Noteholders, in their capacities as
partners in a partnership for tax purposes, before taxing
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authorities or courts of competent jurisdiction in any tax matters affecting the
Trust as a tax partnership; and (ii) to execute any agreements or other
documents relating to or affecting such tax matters, [including agreements or
other documents binding the Class B Noteholders with respect to such tax matters
or otherwise affecting their rights, including, but not limited to, extending
the statute of limitations for assessment of tax deficiencies against the Class
B Noteholders and adjusting the Trust's federal, state or local tax returns.]
The Transferor shall not be liable to the Trust or to any Noteholder for any
action taken or omitted by the Transferor with regard to such tax matters or
otherwise as a result of its holding the position of Tax Matters Partner.]
ARTICLE SIX
THE OWNER TRUSTEE
SECTION 6.01. DUTIES OF OWNER TRUSTEE.
(a) The Owner Trustee, both prior to and after the occurrence of
a 1997-B Servicer Event of Default under the Servicing Agreement and the 1997-B
Servicing Supplement, undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement.
(b) The Owner Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Owner Trustee that shall be specifically required
to be furnished pursuant to any provision of this Agreement, shall examine them
to determine whether they conform on their face to the requirements of this
Agreement.
(c) No provision of this Agreement shall be construed to relieve
the Owner Trustee from liability for its own negligent action, its own negligent
failure to act, its own bad faith or its own willful misfeasance; provided,
however, that
(i) the duties and obligations of the Owner Trustee shall be
determined solely by the express provisions of this Agreement,
the Owner Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in
this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Owner Trustee, the permissive
right of the Owner Trustee to do things enumerated in this
Agreement shall not be construed as a duty and, in the absence of
bad faith on the part of the Owner Trustee, the Owner Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Owner Trustee and
conforming to the requirements of this Agreement;
(ii) the Owner Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Owner
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Trustee was negligent in performing its duties in accordance
with the terms of this Agreement; and
(iii) the Owner Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken in
good faith in accordance with the direction of the Transferor
relating to the time, method and place of conducting any
proceeding for any remedy available to the Owner Trustee, or
exercising any trust or power conferred upon the Owner Trustee,
under this Agreement or the Origination Trust Agreement (as
supplemented by the 1997-B SUBI Supplement).
(d) The Owner Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of any of
its duties under this Agreement, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that the repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) All information obtained by the Owner Trustee regarding the
Obligors and the Leases contained in the 1997-B SUBI, whether upon the exercise
of its rights under this Agreement or otherwise, shall be maintained by the
Owner Trustee in confidence and shall not be disclosed to any other Person,
unless such disclosure is required by any applicable law or regulation or
pursuant to subpoena.
SECTION 6.02. CERTAIN MATTERS AFFECTING THE OWNER TRUSTEE.
Except as otherwise provided in Section 6.01:
(i) the Owner Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it
to be genuine and to have been signed or presented by the proper
party or parties;
(ii) the Owner Trustee may consult with counsel and any
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted
by it under this Agreement in good faith and in accordance with
such Opinion of Counsel;
(iii) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement or the Origination Trust Agreement (as supplemented by
the 1997-B SUBI Supplement), or to institute, conduct or defend
any litigation under this Agreement or the Origination Trust
Agreement (as supplemented by the 1997-B SUBI Supplement), or in
relation to this Agreement or the Origination Trust Agreement (as
supplemented by the 1997-B SUBI Supplement), at the request,
order or direction of the Indenture Trustee or the Transferor
pursuant to the provisions of this
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Agreement or the Origination Trust Agreement (as supplemented by the 1997-B SUBI
Supplement), unless the Noteholders, the Indenture Trustee or the Transferor
shall have offered to the Owner Trustee reasonable security or indemnity against
the costs, expenses and liabilities that may be incurred therein or thereby;
(iv) the Owner Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(v) the Owner Trustee shall not be bound to recalculate,
reverify, or make any investigation into the facts of matters
stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond
or other paper or document, unless requested in writing to do so
by the Indenture Trustee or the Transferor; provided, however,
that if the payment within a reasonable time to the Owner Trustee
of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the
Owner Trustee, not reasonably assured to the Owner Trustee by the
security afforded to it by the terms of this Agreement, the Owner
Trustee may require reasonable indemnity against such cost,
expense or liability as a condition to so proceeding; the
reasonable expense of every such examination shall be paid by the
Transferor or, if paid by the Owner Trustee, shall be reimbursed
by the Transferor upon demand; and nothing in this clause shall
derogate from the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding
the Obligors; and
(vi) the Owner Trustee may execute any of the trusts or
powers under this Agreement or perform any duties under this
Agreement either directly or by or through agents or attorneys or
a custodian.
SECTION 6.03. OWNER TRUSTEE NOT LIABLE FOR NOTES, TRANSFEROR
CERTIFICATE OR LEASES.
The Owner Trustee shall make no representations as to the
validity or sufficiency of this Agreement, the Indenture, the Notes, the
Transferor Certificate (other than the execution by the Owner Trustee on behalf
of the Trust of the Indenture, the Notes and the Transferor Certificate, and the
certificate of authentication on, the Transferor Certificate), or of the 99.8%
1997-B SUBI Interest or 99.8% 1997-B SUBI Certificate. The Owner Trustee shall
have no obligation to perform any of the duties of the Transferor unless
explicitly set forth in this Agreement. The Owner Trustee shall at no time have
any responsibility or liability for or with respect to the legality, validity
and enforceability of the Indenture, the Notes, the 99.8% 1997-B SUBI Interest
or 99.8% 1997-B SUBI Certificate or any 1997-B Lease, any ownership interest in
any 1997-B Leased Vehicle, or the maintenance of any such ownership interest, or
for or with respect to the efficacy of the Trust or its ability to generate the
payments to be distributed to the Noteholder or the Certificateholder under this
Agreement, including without limitation the validity of the assignment of the
99.8% 1997-B SUBI Interest or 99.8% 1997-B SUBI Certificate to the Trust or of
any intervening assignment; the existence, condition, location and ownership of
any 1997-
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B Lease or 1997-B Leased Vehicle; the existence and enforceability of
any physical damage or credit life or credit disability insurance; the existence
and contents of any 1997-B Lease or any computer or other record thereof; the
completeness of any 1997-B Lease; the performance or enforcement of any Lease;
the compliance by the Transferor with any covenant or the breach by the
Transferor of any warranty or representation made under this Agreement or in any
related document and the accuracy of any such warranty or representation prior
to the Owner Trustee's receipt of notice or other discovery of any noncompliance
therewith or any breach thereof; the acts or omissions of the Transferor or the
Servicer; or any action by the Owner Trustee taken at the instruction of the
Servicer; provided, however, that the foregoing shall not relieve the Owner
Trustee of its obligation to perform its duties under this Agreement. Except
with respect to a claim based on the failure of the Owner Trustee to perform its
duties under this Agreement or based on the Owner Trustee's willful misconduct,
bad faith or negligence, no recourse shall be had for any claim based on any
provision of this Agreement, the Transferor Certificate, the 99.8% 1997-B SUBI
Interest or 99.8% 1997-B SUBI Certificate or assignment thereof against the
institution serving as Owner Trustee in its individual capacity. The Owner
Trustee shall not have any personal obligation, liability or duty whatsoever to
any Noteholder, the Indenture Trustee, the Transferor or any other Person with
respect to any such claim, and any such claim shall be asserted solely against
the Trust or any indemnitor who shall furnish indemnity as provided in this
Agreement. The Owner Trustee shall not be accountable for the use or application
by the Transferor of any of the Transferor Certificate or of the proceeds of the
Notes or the Transferor Certificates, or for the use or application of any funds
paid to the Servicer in respect of the 99.8% 1997-B SUBI Interest or 99.8%
1997-B SUBI Certificate.
SECTION 6.04. OWNER TRUSTEE MAY OWN NOTES.
The Owner Trustee in its individual or any other capacity may
become the owner or pledgee of Notes with the same rights as it would have if it
were not Owner Trustee.
SECTION 6.05. OWNER TRUSTEE'S FEES AND EXPENSES.
The Owner Trustee shall be entitled to reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trusts created by this Agreement and in the exercise and
performance of any of the powers and duties of the Owner Trustee under this
Agreement, and payment or reimbursement upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Owner Trustee in
its capacity as Owner Trustee in accordance with any of the provisions of this
Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence, willful misfeasance or bad faith or that is the responsibility of
the Indenture Trustee, the Noteholders or the Transferor under this Agreement or
any other Transaction Document. Such compensation and reimbursement shall be
paid as set forth in Section 3.03(b) hereof or Section 10.01 of the 1997-B SUBI
Supplement (in the definitions of the terms "Principal Collections" and
"Interest Collections"). Additionally, the Transferor, pursuant to
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Section 6.02(a)(iii) or (v), may agree to indemnify the Owner Trustee under
certain circumstances.
SECTION 6.06. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE.
The Owner Trustee under this Agreement shall at all times be a
national banking association or corporation having its corporate trust office in
the same State as the location of the Corporate Trust Office as specified in
this Agreement; and organized and doing business under the laws of such State or
the United States; authorized under such laws to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having a long-term deposit rating no lower than Baa3 by Moody's, so long as
Xxxxx'x is a Rating Agency, or be otherwise acceptable to each Rating Agency, as
evidenced by a letter to such effect from each of them.
If the Owner Trustee shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 6.07.
SECTION 6.07. RESIGNATION OR REMOVAL OF OWNER TRUSTEE.
(a) The Owner Trustee may at any time resign and be discharged
from the trusts created by this Agreement by giving written notice thereof to
the Transferor. Upon receiving such notice of resignation, the Transferor shall
promptly appoint a successor Owner Trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Owner Trustee
and one copy to the successor Owner Trustee. If no successor Owner Trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Owner Trustee may petition
any court of competent jurisdiction for the appointment of a successor Owner
Trustee.
(b) If at any time the Owner Trustee shall cease to be eligible
in accordance with the provisions of Section 6.06 and shall fail to resign after
written request therefor by the Transferor, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent, or
a receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Transferor may remove the Owner Trustee. If it shall
remove the Owner Trustee under the authority of the immediately preceding
sentence, the Transferor shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Owner Trustee so removed and one copy to the successor Owner
Trustee, and payment of all fees owed to the outgoing Owner Trustee.
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(c) Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section shall not become effective until acceptance of appointment by the
successor Owner Trustee as provided in Section 6.08. The Servicer shall give the
Indenture Trustee and each Rating Agency notice of any such resignation or
removal of the Owner Trustee and appointment and acceptance of a successor Owner
Trustee.
SECTION 6.08. SUCCESSOR OWNER TRUSTEE.
Any successor Owner Trustee appointed as provided in Section 6.07
shall execute, acknowledge and deliver to the Transferor and to its predecessor
Owner Trustee an instrument accepting such appointment under this Agreement, and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective and such successor Owner Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner Trustee shall deliver
to the successor Owner Trustee all documents and statements held by it under
this Agreement; and the Transferor and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties and obligations. No successor
Owner Trustee shall accept appointment as provided in this Section unless at the
time of such acceptance such successor Owner Trustee shall be eligible under the
provisions of Section 6.06. Upon acceptance of appointment by a successor Owner
Trustee as provided in this Section, the Transferor shall cause notice of the
successor of such Owner Trustee under this Agreement to be given by mail to the
Indenture Trustee and each Rating Agency. If the Transferor fails to mail or
cause to be mailed such notice within ten days after acceptance of appointment
by the successor Owner Trustee, the successor Owner Trustee shall cause such
notice to be mailed at the expense of the Transferor.
SECTION 6.09. MERGER OR CONSOLIDATION OF OWNER TRUSTEE.
Any corporation (i) into which the Owner Trustee may be merged or
consolidated, (ii) which may result from any merger, conversion, or
consolidation to which the Owner Trustee shall be a party, or (iii) which may
succeed to the corporate trust business of the Owner Trustee, shall be the
successor of the Owner Trustee hereunder, provided such corporation shall be
eligible pursuant to Section 6.06, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, except that if the Owner Trustee in any
of the foregoing cases is not the surviving entity, then the surviving entity
shall execute an agreement of assumption to perform every obligation of the
Owner Trustee, either generally or particularly as provided herein. Notice of
any such event shall be given by the Owner Trustee to each Rating Agency.
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SECTION 6.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE OWNER
TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust may at the time be located, the Transferor and the
Owner Trustee acting jointly shall have the power and shall execute and deliver
all instruments to appoint one or more Persons approved by the Owner Trustee to
act as co-trustee, jointly with the Owner Trustee, or separate trustee or
separate trustees, of all or any part of the Trust, and to vest in such Person,
in such capacity and for the benefit of the Noteholders and the Transferor
Certificateholder, such title to the Trust, or any part thereof, and, subject to
the other provisions of this Section, such powers, duties, obligations, rights
and trusts as the Transferor and the Owner Trustee may consider necessary or
desirable. If the Transferor shall not have joined in such appointment within 15
days after the receipt by it of a request so to do, the Owner Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor Owner Trustee pursuant to Section 6.06 and no notice of a successor
Owner Trustee pursuant to Section 6.08 and no notice to Noteholders or the
Indenture Trustee of the appointment of any co-trustee or separate trustee shall
be required pursuant to Section 6.08.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and
exercised or performed by the Owner Trustee and such separate
trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except
to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed, the Owner Trustee
shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee
under this Agreement; and
(iii) the Transferor and the Owner Trustee acting jointly may
at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Section. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be
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provided therein, subject to all the provisions of this Agreement, specifically
including every provision of this Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the Owner Trustee. Each
such instrument shall be filed with the Owner Trustee and a copy thereof given
to the Transferor and the Servicer.
Any separate trustee or co-trustee may at any time appoint the
Owner Trustee its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee. Notwithstanding anything to the
contrary in this Agreement, the appointment of any separate trustee or
co-trustee shall not relieve the Owner Trustee of its obligations and duties
under this Agreement.
SECTION 6.11. REPRESENTATIONS AND WARRANTIES OF OWNER TRUSTEE.
The Owner Trustee makes the following representations and
warranties on which the Transferor and the Noteholders may rely:
(i) Organization and Good Standing. The Owner Trustee is a
national banking association organized, existing and in good
standing under the laws of the United States of America.
(ii) Power and Authority. The Owner Trustee has full power,
authority and right to execute, deliver and perform this
Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement.
(iii) Due Execution. This Agreement has been duly executed
and delivered by the Owner Trustee.
(iv) Enforceability. This Agreement constitutes the legal,
valid and binding obligation of the Owner Trustee, enforceable
against it in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general
principles of equity.
[SECTION 6.12. TAX RETURNS.]
[The Owner Trustee shall, at the direction of the Servicer and on
behalf of the Transferor, prepare or shall cause to be prepared any required
federal tax information returns (in a manner consistent with the treatment of
the Notes as indebtedness) and shall file and distribute such forms as required
by law. The Servicer shall prepare or cause to be prepared any federal and state
tax returns that may be required with respect to the Trust or the Trust assets
and shall
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deliver any such returns to the Owner Trustee for signature at least five days
prior to the date such returns are required by law to be filed.]
SECTION 6.13. OWNER TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF TRANSFEROR CERTIFICATE.
All rights of action and claims under this Agreement or the
Transferor Certificate may be prosecuted and enforced by the Owner Trustee
without the possession of the Transferor Certificate or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Owner Trustee shall be brought in its own name as trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Owner Trustee, its agents and
counsel, be for the ratable benefit of the Noteholders and the Certificateholder
in respect of which such judgment has been obtained.
SECTION 6.14. SUIT FOR ENFORCEMENT.
If a 1997-B Servicer Event of Default shall occur and be
continuing under the Servicing Agreement, as supplemented by the 1997-B
Servicing Supplement with respect to the 1997-B SUBI Portfolio, or if the RV
Insurer shall have failed to comply with its obligations to the Indenture
Trustee or the Owner Trustee as an insured party under the Residual Value
Insurance Policy, the Indenture Trustee or the Owner Trustee, in its discretion
may, subject to the provisions of Sections 6.01 and 6.02 hereof, and Section
11.01(b) of the 1997-B Servicing Supplement (with respect to the Servicer), and
the terms of the Residual Value Insurance Policy (with respect to the RV
Insurer) proceed to protect and enforce its rights and the rights of the
Noteholders and Certificateholder under this Agreement, the Servicing Agreement
and the Servicing Supplement, or the Residual Value Insurance Policy, as
applicable, by a suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained
herein or therein or in aid of the execution of any power granted herein or
therein or for the enforcement of any other legal, equitable or other remedy as
the Indenture Trustee or the Owner Trustee, being advised by counsel, shall deem
most effectual to protect and enforce any of the rights of the Indenture Trustee
or the Owner Trustee or the Noteholders and Certificateholder.
SECTION 6.15. RIGHTS OF INDENTURE TRUSTEE TO DIRECT OWNER
TRUSTEE.
The Indenture Trustee (and, after payment in full of the Notes,
the Transferor) shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Owner Trustee under
this Agreement, or exercising any trust or power conferred on the Owner Trustee
by this Agreement; provided, however, that (a) subject to Sections 6.01 and
6.02, the Owner Trustee shall have the right to decline to follow any such
direction if the Owner Trustee being advised by counsel determines that the
action so directed may not lawfully be taken, or if the Owner Trustee in good
faith shall, by a Responsible Officer, determine that the proceedings so
directed would be illegal or subject it to personal liability and (b) nothing in
this
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Agreement shall impair the right of the Owner Trustee to take any action deemed
proper by the Owner Trustee and which is not inconsistent with such direction by
the Indenture Trustee (and, after payment in full of the Notes, the Transferor).
SECTION 6.16. NO PETITION.
The Owner Trustee covenants and agrees that prior to the date
which is one year and one day after the last date upon which (a) each Class of
Notes has been paid in full, and (b) all obligations due under any other
Securitized Financing have been paid in full, the Owner Trustee will not
institute against, or join any other Person in instituting against the
Transferor, World Omni Lease Securitization, Inc., ALFI, ALFI LP, the
Origination Owner Trustee or the Origination Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceedings under any federal or state bankruptcy or similar law. The foregoing
shall not limit the Owner Trustee's right to file any claim in or otherwise take
actions with respect to any such proceeding instituted by any Person not under
such a constraint. This Section shall survive the termination of this Agreement
or the resignation or removal of the Owner Trustee under this Agreement.
ARTICLE SEVEN
TERMINATION
SECTION 7.01. TERMINATION OF THE TRUST.
The Trust and the respective obligations and responsibilities of
the Transferor, the Indenture Trustee and the Owner Trustee shall terminate upon
the earliest of (i) the purchase as of any Distribution Date by the Transferor
of the corpus of the Trust as described in Section 7.02 (except that the Trust
shall continue solely for the limited purposes set forth in (b) and (c) below),
(ii) the day following the Distribution Date upon which all Notes have been paid
in full and after which there is no unreimbursed Class A-1 Note Principal Loss
Amount, Class A-2 Note Principal Loss Amount, Class A-3 Note Principal Loss
Amount, Class A-4 Note Principal Loss Amount, Class B Note Principal Loss
Amount, Class A-1 Note Principal Loss Interest Amount, Class A-2 Note Principal
Loss Interest Amount, Class A-3 Note Principal Loss Interest Amount, Class A-4
Note Principal Loss Interest Amount, Class B Note Principal Loss Interest
Amount, Class B Note Principal Carryover Shortfall or Class B Note Principal
Carryover Shortfall Interest Amount or (iii) the expiration, disposition or
termination of the 99.8% 1997-B SUBI Interest; provided, however, that in no
event shall the trust created by this Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Xxxxxxx
Xxxxxxxxx Xxxxxxx of the State of Arkansas, living on the date of the Agreement.
The Transferor shall promptly notify the Owner Trustee and each Rating Agency of
any prospective termination of the Trust.
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SECTION 7.02. OPTIONAL PURCHASE OF 99.8% 1997-B SUBI INTEREST.
(a) On each Distribution Date following the last day of a
Collection Period as of which the Note Balance shall be less than or equal to
ten percent (10%) of the Initial Note Balance, the Transferor shall have the
option to purchase the corpus of the Trust. To exercise such option, the
Transferor shall notify the Indenture Trustee, the Owner Trustee and the
Servicer, in writing, no later than the tenth day of the month preceding the
month in which the Distribution Date as of which such purchase is to be effected
and shall deposit in the Distribution Account an amount equal to the greater of
(i) 99.8% of the Aggregate Net Investment Value as of the last day of the
related Collection Period, and (ii) the sum of (A) the Note Balance, (B) the
accrued and unpaid Class A-1 Interest Distributable Amount, Class A-2 Interest
Distributable Amount, Class A-3 Interest Distributable Amount, Class A-4
Interest Distributable Amount and Class B Interest Distributable Amount, (C) any
accrued and unpaid Class A-1 Interest Carryover Shortfall, Class A-2 Interest
Carryover Shortfall, Class A-3 Interest Carryover Shortfall, Class A-4 Interest
Carryover Shortfall and Class B Interest Carryover Shortfall, (D) any unpaid
Class A-1 Note Principal Loss Amount, unpaid Class A-2 Note Principal Loss
Amount, unpaid Class A-3 Note Principal Loss Amount, unpaid Class A-4 Note
Principal Loss Amount, unpaid Class B Note Principal Loss Amount and unpaid
Class B Note Principal Carryover Shortfall, and (E) any accrued and unpaid Class
A-1 Note Principal Loss Interest Amount, unpaid Class A-2 Note Principal Loss
Interest Amount, unpaid Class A-3 Note Principal Loss Interest Amount, unpaid
Class A-4 Note Principal Loss Interest Amount, unpaid Class B Note Principal
Loss Interest Amount and Class B Note Principal Carryover Shortfall Interest
Amount through the day preceding the final Distribution Date. The Transferor
also shall pay to the Servicer the aggregate amount of any unreimbursed
Advances. Thereupon the Transferor shall succeed to all of the Trust corpus.
(b) The corpus of the Trust may only be purchased pursuant to
this Section 7.02 if the Indenture Trustee and each Rating Agency receives an
Opinion of Counsel from the Transferor's counsel to the effect that such
purchase would not constitute a fraudulent conveyance, or each Rating Agency is
otherwise satisfied (as evidenced by written notice from each to the Indenture
Trustee).
ARTICLE EIGHT
EARLY AMORTIZATION EVENTS
SECTION 8.01. EARLY AMORTIZATION EVENTS.
If any one of the following events shall occur during the
Revolving Period:
(a) failure on the part of the Servicer (i) to make any
payment or deposit required with respect to the 1997-B SUBI, the
99.8% 1997-B SUBI Interest, or the Notes under this Agreement,
the Origination Trust Agreement or the 1997-B SUBI Supplement, or
the Servicing Agreement or the 1997-B Servicing Supplement, on or
before the date occurring five Business Days after the payment or
deposit is required to be made, or (ii) to deliver a Servicer's
Certificate within ten Business Days after any Determination
Date;
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(b) failure on the part of the Transferor or the Servicer
duly to observe or perform in any material respect any other
covenants or agreements of the Transferor or the Servicer set
forth in this Agreement, the Origination Trust Agreement or the
1997-B SUBI Supplement, or the Servicing Agreement or the 1997-B
Servicing Supplement, which failure materially and adversely
affects the rights of the holder of the 99.8% 1997- B SUBI
Interest or of the Notes and which continues unremedied and
continues to affect materially and adversely the rights of the
holder of the 99.8% 1997-B SUBI Interest or of the Notes for a
period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, is given (i) to the
Transferor or the Servicer, as the case may be, by the Indenture
Trustee, Owner Trustee or the Origination Trustee, or (ii) to the
Transferor or the Servicer, as the case may be, and to the
Indenture Trustee by the Holders of Notes evidencing not less
than 25% of the aggregate Percentage Interest;
(c) any representation or warranty made by ALFI LP in the
SUBI Certificate Agreement, by the Transferor in this Agreement,
or the representation and warranty made by the Servicer in
Section 8.01(c) of the 1997-B Servicing Supplement or any
certificate given pursuant to Section 8.02(b) of the 1997-B
Servicing Supplement, shall prove to have been incorrect in any
material respect when made or given, as a result of which the
interests of the holder of the 99.8% 1997-B SUBI Interest or of
the Noteholders are materially and adversely affected and which
continues to be incorrect in any material respect and continues
to affect materially and adversely affect the interests of the
holder of the 99.8% 1997-B SUBI Interest or of the Noteholders
for a period of 60 days after the date on which written notice of
such failure, requiring the same to be remedied, is given (i) to
ALFI LP, the Transferor or the Servicer, as the case may be, by
the Indenture Trustee, Owner Trustee or the Origination Trustee,
or (ii) to ALFI LP, the Transferor or the Servicer, as the case
may be, and to the Indenture Trustee by the Holders of Notes
evidencing not less than 25% of the aggregate Percentage
Interest; provided, however, that an Early Amortization Event
pursuant to this subparagraph (b) shall not be deemed to have
occurred hereunder if the Servicer has made the deposit
contemplated by Section 8.03 of the 1997-B Servicing Supplement
and has reallocated the relevant 1997-B Lease and 1997-B Leased
Vehicle to the UTI Portfolio within the time provided therefor;
(d) the Transferor shall file a petition commencing a
voluntary case under any chapter of the Federal bankruptcy laws;
or the Transferor shall file a petition or answer or consent
seeking reorganization, arrangement, adjustment, or composition
under any other similar applicable Federal law, or shall consent
to the filing of any such petition, answer, or consent; or the
Transferor shall appoint, or consent to the appointment of a
custodian, receiver, liquidator, trustee, assignee, sequestrator
or other similar official in bankruptcy or insolvency of it or of
any substantial part of its property, or shall make an assignment
for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due;
(e) any order for relief against the Transferor shall have
been entered by a court having jurisdiction in the premises under
any chapter of the Federal bankruptcy
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laws; or a decree or order by a court having jurisdiction in
the premises shall have been entered approving as properly filed
a petition seeking reorganization, arrangement, adjustment, or
composition of the Transferor under any other similar applicable
Federal law; or a decree or order of a court having jurisdiction
in the premises for the appointment of a custodian, receiver,
liquidator, trustee, assignee, sequestrator or other similar
official in bankruptcy or insolvency of the Transferor or of any
substantial part of its property, or for the winding up or
liquidation of its affairs, shall have been entered;
(f) any Lien, other than Liens permitted under this
Agreement, the Indenture, the Origination Trust Agreement or the
1997-B SUBI Supplement, the Servicing Agreement or the 1997-B
Servicing Supplement, or the Backup Security Agreement, shall be
created on or extend to or otherwise arise upon or burden the
99.8% 1997-B SUBI Interest, the 99.8% 1997-B SUBI Certificate, or
the 1997-B Leases or 1997-B Leased Vehicles, or any part thereof
or any interest therein or the proceeds thereof, and not be
released or bonded over within 60 days thereafter;
(g) the 0.2% interest in the 1997-B SUBI held by the
Transferor or the SUBI Certificate evidencing such interest is
transferred, or any Lien, other than Liens permitted under this
Agreement, the Indenture, the Origination Trust Agreement or the
1997-B SUBI Supplement, the Servicing Agreement or the 1997-B
Servicing Supplement, or the Backup Security Agreement, shall be
created on or extend to or otherwise arise upon or burden such
0.2% interest or SUBI Certificate, or any part thereof or any
interest therein or the proceeds thereof, and not be released or
bonded over within 30 days thereafter;
(h) the Transferor, the Trust or the Origination Trust shall
become subject to registration as an "investment company" under
the Investment Company Act;
(i) on the twenty-fifth calendar day of any calendar month
(commencing __________ 1997) the aggregate amount of Principal
Collections (and amounts treated as Principal Collections
pursuant to the last sentence of Section 3.03(b)) collected
through the last day of the related Collection Period that have
not been reinvested in new 1997-B Leases and 1997-B Leased
Vehicles, as contemplated by Section 11.02 of the 1997-B SUBI
Supplement, exceeds $1,000,000;
(j) a 1997-B Servicer Event of Default has occurred;
(k) an Indenture Event of Default has occurred;
(l) on any Distribution Date the aggregate amount withdrawn
from the Reserve Fund and deposited in the Distribution Account
on or prior to such Distribution Date (without reference to any
subsequent deposits to the Reserve Fund from any source) exceeds
$____________; or
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(m) any 1997-B Leased Vehicle shall no longer be covered by
(i) the Residual Value Insurance Policy, (ii) one or more
policies with substantially similar coverage and provisions
issued by an insurer acceptable to each Rating Agency (as
evidenced by a letter from each to the effect that such change
would not result in its then-current rating of any Rated
Securities being qualified, reduced or withdrawn); provided that
the Origination Owner Trustee, the Indenture Trustee and the
Owner Trustee shall at all times have the same rights with
respect to any replacement policy as with respect to the original
policy, or (iii) any alternative mechanism to support the Booked
Residual Value of such 1997-B Leased Vehicle that has been
approved in accordance with the procedures set forth in Section
9.01 for the amendment hereof;
then (but in the case of any event described in subparagraph (a), (b), (c), (f)
or (g) after any applicable grace period) an early amortization event (an "Early
Amortization Event") shall have occurred.
ARTICLE NINE
MISCELLANEOUS PROVISIONS
SECTION 9.01. AMENDMENT.
(a) This Agreement and the other Transaction Documents may be
amended by the respective parties thereto, without the consent of any of the
Noteholders, to cure any ambiguity, to correct or supplement any provisions
herein or therein, to add, change or eliminate any other provisions hereof or
thereof with respect to matters or questions arising hereunder or thereunder
that shall not be inconsistent with the provisions hereof or thereof, or to add
or amend any provision therein in connection with permitting transfers of the
Class B Notes; provided, however, that any such action shall not, in the good
faith judgment of the parties hereto or thereto, adversely affect in any
material respect the interests of the Noteholders and the Origination Trustee
and the Indenture Trustee shall have received an Opinion of Counsel to the
effect that such action shall not affect the legal interests or positions of the
Noteholders.
(b) This Agreement and the other Transaction Documents may also
be amended from time to time by the respective parties hereto or thereto
including with respect to (i) changing the formula for determining the Reserve
Fund Cash Requirement, the Reserve Fund Supplemental Requirement, the RV Insurer
Reserve Fund Supplemental Requirement and/or the Downgrade Reserve Fund
Supplemental Requirement (including changing the Reserve Fund Tests) which
change would result in a decrease in the amount of the Reserve Fund Cash
Requirement, the Reserve Fund Supplemental Requirement, the RV Insurer Reserve
Fund Supplemental Requirement and/or the Downgrade Reserve Fund Supplemental
Requirement, (ii) changing the manner by which the Reserve Fund or the Residual
Value Surplus Account is funded, which changes could include borrowings by the
Transferor to fund all or a portion of the Reserve Fund Initial Deposit (which
borrowings would be payable from assets or cash flow otherwise payable to the
Transferor), (iii) the need for the Residual Value Surplus Account, (iv)
changing the
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remittance schedule for collection deposits in the Distribution Account, (v)
changing the definition of "Permitted Investments"), or (vi) replacing the
Residual Value Insurance Policy with an alternate mechanism to support the
Booked Residual Value of the 1997-B Leased Vehicles and Early Termination
Amounts, if either (A) the Indenture Trustee has been furnished with
confirmation (written or oral) from each Rating Agency to the effect that such
amendment would not cause its then-current rating of any Rated Securities to be
qualified, reduced or withdrawn, or (B) the Indenture Trustee has received the
consent of the Holders of Notes representing more than 50% of the aggregate
Percentage Interests, acting as a single Class (which consent of any Holder of a
Note given pursuant to this Section or pursuant to any other provision of this
Agreement shall be conclusive and binding on such Holder and on all future
Holders of such Note and of any Note issued upon the transfer thereof or in
exchange thereof or in lieu thereof whether or not notation of such consent is
made upon the Note); provided, however, that: [(1) any amendment (x) eliminating
the Reserve Fund or the Residual Value Insurance Policy, (y) reducing the
Reserve Fund Cash Requirement to less than the lesser of the Reserve Fund
Initial Deposit and the Note Balance as of the related Distribution Date (after
giving effect to reductions in the Note Balance on such Distribution Date), or
(z) eliminating or reducing the RV Insurer Reserve Fund Supplemental
Requirement, shall also require that the Indenture Trustee and each Rating
Agency receive an Opinion of Counsel to the effect that, after such amendment,
for Federal income tax purposes the Trust will not be treated as an association
taxable as a corporation, and the Class A Notes will properly be characterized
as indebtedness that is secured by the assets of the Trust;] (2) with respect to
an amendment replacing the Residual Value Insurance Policy with an alternate
mechanism, the Servicer also shall have provided to the Indenture Trustee and
the Origination Trustee an Officer's Certificate to the effect that the 1997-B
Leases may properly be treated as finance leases for purposes of generally
accepted accounting principles, consistently applied, by virtue of some reason
other than maintenance of that policy, and describing such reasons (which shall
be in accordance with generally accepted accounting principles, consistently
applied); and (3) no such amendment shall (y) except as otherwise provided in
Section 9.01(a), increase or reduce in any manner the amount of, or accelerate
or delay the timing of, collections of payments on the 1997-B SUBI or any 1997-B
SUBI Certificate or distributions that shall be required to be made on any Note
or the applicable Note Rate or (z) reduce the aforesaid percentage of the
aggregate Percentage Interest of the Notes of each Class required to consent to
any such amendment, without the consent of the Holders of all Notes of such
Class then outstanding.
(c) The Indenture Trustee shall provide each Rating Agency prior
notice of any proposed amendment hereto and copies of an Opinion of Counsel, if
relevant, whether or not such amendment requires its approval. Any notice of any
such amendment or modification as to which notice is required to be given to any
Rating Agency shall contain both the substance and substantial form of the
proposed amendment or modification.
(d) Promptly after the execution of any such amendment or
consent, the Indenture Trustee shall furnish written notification of the
substance of such amendment or consent to each Noteholder. It shall not be
necessary for the consent of Noteholders pursuant to Section 9.01(b) to approve
the particular form of any proposed amendment or consent, but it shall be
sufficient if
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such consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization by Noteholders of the execution
thereof shall be subject to such reasonable requirements as the Indenture
Trustee may prescribe.
(e) Prior to the execution of any amendment to this Agreement,
the Indenture Trustee and the Owner Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Indenture Trustee and the Owner
Trustee may, but shall not be obligated to, enter into any such amendment which
affects such Trustee's own rights, duties or immunities under this Agreement or
otherwise.
SECTION 9.02. PROTECTION OF TITLE TO TRUST.
(a) The Transferor shall execute and file, or cause to be
executed and filed, such financing statements and such continuation and other
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interest of the Noteholders and the
Owner Trustee under this Agreement in the 99.8% 1997-B SUBI Interest, the 99.8%
1997-B SUBI Certificate and in the proceeds thereof. The Transferor shall
deliver (or cause to be delivered) to the Owner Trustee file-stamped copies of,
or filing receipts for, any document filed as provided above, as soon as
available following such filing.
(b) The Transferor shall not change its name, identity or
partnership structure in any manner that would, could or might make any
financing statement or continuation statement filed by the Transferor in
accordance with paragraph (a) above seriously misleading within the meaning of
Section 9-402(7) of the UCC, unless it shall have given the Owner Trustee
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) The Transferor shall give the Owner Trustee prior written
notice of any relocation of its principal executive office if, as a result of
such relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation statement or
of any new financing statement and shall promptly make any such filing.
(d) The Transferor shall deliver to the Owner Trustee promptly
after the execution and delivery of each amendment to this Agreement, an Opinion
of Counsel either (i) stating that, in the opinion of such Counsel, all
financing statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the Owner
Trustee in the 99.8% 1997-B SUBI Interest, and reciting the details of such
filings or referring to prior Opinions of Counsel in which such details are
given, or (ii) stating that, in the opinion of such Counsel, no such action is
necessary to preserve and protect such interest.
(e) The Transferor shall, to the extent required by applicable
law, cause the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4
Notes [and the Class B Notes] to be
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registered with the Commission pursuant to Section 12(b) or Section 12(g) of the
Exchange Act within the time periods specified in such Sections.
(f) This Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and all of which counterparts shall constitute but one and the same instrument.
SECTION 9.03. LIMITATION ON RIGHTS OF TRANSFEROR.
The incapacity, bankruptcy or insolvency of the Transferor shall
not operate to terminate this Agreement or the Trust, nor entitle the
Transferor's legal representatives or heirs to claim an accounting or to take
any action or commence any proceeding in any court for a partition or winding up
of the Trust, nor otherwise affect (except to the extent set forth herein or in
the other Transaction Documents) the rights, obligations and liabilities of the
parties to this Agreement, the other Transaction Documents or any of them.
SECTION 9.04. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT THAT THE GRANT OF A SECURITY
INTEREST IN ANY ACCOUNT AND THE FUNDS AND PROPERTY THEREIN AND THE PERFECTION,
EFFECT OF PERFECTION, AND PRIORITY OF SUCH SECURITY INTEREST SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF ILLINOIS.
SECTION 9.05. NOTICES.
All demands, notices and communications under this Agreement
shall be in writing, personally delivered or mailed by certified mail, return
receipt requested, and shall be deemed to have been duly given upon receipt (i)
in the case of the Transferor, to the agent for service as specified in this
Agreement, or at such other address as shall be designated by the Transferor in
a written notice to the Owner Trustee and the Indenture Trustee; (ii) in the
case of the Indenture Trustee, at the Corporate Trust Office of the Indenture
Trustee; (iii) in the case of the Owner Trustee, at the Corporate Trust Office
of the Owner Trustee; (iv) in the case of Standard & Poor's, at 00 Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Surveillance
Department; and (v) in the case of Xxxxx'x, at 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 Attention: ABS Monitoring Department. Any notice required or
permitted to be mailed to a Noteholder shall be given as provided in Section
1.05 of the Indenture. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Noteholder shall receive such notice.
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SECTION 9.06. SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Securities or the rights of the Holders thereof.
SECTION 9.07. ASSIGNMENT.
Notwithstanding anything to the contrary contained in this
Agreement, except as provided in Section 5.03, this Agreement may not be
assigned by the Transferor without the prior written consent of Holders of Notes
evidencing more than 50% of the aggregate Percentage Interests (acting as a
single Class). The Transferor shall provide a copy of any such assignment to
each Rating Agency.
SECTION 9.08. TRANSFEROR CERTIFICATE NONASSESSABLE AND FULLY
PAID.
Except as provided in Section 5.02(b) with regard to the
Transferor, the Transferor shall not be personally liable for obligations of the
Trust. The interest represented by the Transferor Certificate shall be
nonassessable for any losses or expenses of the Trust or for any reason
whatsoever, and, upon the execution and authentication thereof by the Owner
Trustee pursuant to Section 4.02, 4.03 or 4.04, the Transferor Certificate is
and shall be deemed fully paid.
ARTICLE TEN
AGENT FOR SERVICE
SECTION 10.01. AGENT FOR SERVICE OF TRANSFEROR.
The agent for service of process for the Transferor shall be its
Treasurer, at 0000 Xxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxx 00000.
SECTION 10.02. AGENT OF OWNER TRUSTEE.
The Owner Trustee shall maintain an office or offices or agency
or agencies where notices and demands to or upon the Owner Trustee in respect of
the Transferor Certificate and this Agreement may be served. The initial such
office shall be the Corporate Trust Office. The Owner Trustee shall give prompt
written notice to the Transferor, the Servicer and the Indenture Trustee of any
change in the location of any such office or agency.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
WORLD OMNI LEASE SECURITIZATION L.P.,
as Transferor
By: World Omni Lease Securitization,
Inc., its general partner
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Assistant Treasurer
PNC BANK, DELAWARE, as Owner Trustee
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
U.S. BANK NATIONAL ASSOCIATION, as Indenture
Trustee
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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EXHIBIT A
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE APPLICABLE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE RESOLD OR TRANSFERRED.
WORLD OMNI 1997-B AUTOMOBILE LEASE SECURITIZATION TRUST
AUTOMOBILE LEASE ASSET BACKED TRANSFEROR CERTIFICATE
evidencing the entire interest in the distributions allocable to
the Transferor Certificate evidencing an undivided interest in
the Trust, as defined below, the property of which includes,
among other things, a 99.8% interest in a special unit of
beneficial interest (the "99.8% 1997-B SUBI Interest") in World
Omni LT, an Alabama business trust, which 99.8% 1997-B SUBI
Interest represents a beneficial interest in a pool of retail
lease contracts for new and used automobiles and light duty
trucks (and the related automobiles and light-duty trucks)
entered into by various automobile and light duty truck dealers
pursuant to contractual arrangements with World Omni Financial
Corp. and thereafter assigned to World Omni LT, and which 99.8%
1997-B SUBI Interest was originally issued to Auto Lease Finance
L.P., and then sold to World Omni Lease Securitization L.P., and
then to the Trust.
(This Certificate does not represent an obligation of, or an
interest in, Auto Lease Finance, Inc., World Omni Lease
Securitization, Inc., World Omni LT, World Omni Financial Corp.,
or any of their respective affiliates.)
THIS CERTIFIES THAT WORLD OMNI LEASE SECURITIZATION L.P. (the
"Transferor") is the registered owner of the entire interest not allocated to
the Notes in the World Omni 1997-B Automobile Lease Securitization Trust (the
"Trust") formed by the Transferor. The Trust was created pursuant to a
Securitization Trust Agreement dated as of October 1, 1997 (the "Agreement"),
among the Transferor, PNC Bank, Delaware, a Delaware trust company, as trustee
(the "Owner Trustee"), and U.S. Bank National Association, a national banking
association, as indenture trustee. A summary of certain of the pertinent
provisions of the Agreement is set forth below. To the extent not otherwise
defined herein the capitalized terms used herein have the meanings assigned to
them in the Agreement.
This Certificate is the duly authorized Transferor Certificate
issued under the Agreement and designated as the "World Omni 1997-B Automobile
Lease Securitization Trust Automobile Lease Asset Backed Transferor Certificate"
(the "Transferor Certificate"). This Transferor Certificate is issued under and
is subject to the terms, provisions and conditions of the
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Agreement, to which Agreement the Holder of this Transferor Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
The property of the Trust includes, among other things, a 99.8%
interest in a special unit of beneficial interest (the "99.8% 1997-B SUBI
Interest") in World Omni LT, an Alabama business trust (the "Origination
Trust"), which 99.8% 1997-B SUBI Interest represents a beneficial interest in,
among other things, a pool of retail automobile and light duty truck lease
contracts ("Leases") and the new and used automobiles and light duty trucks
leased thereby ("Leased Vehicles") (such pool of Leases and Leased Vehicles, the
"1997-B SUBI Portfolio") entered into by various automobile and light duty truck
dealers pursuant to contractual arrangements with World Omni Financial Corp.,
which also acts as servicer (in that capacity, the "Servicer") of the 1997-B
SUBI Portfolio. During the Revolving Period, Principal Collections allocable to
the 99.8% 1997-B SUBI Interest generally will be applied towards the allocation
to the 1997-B SUBI Portfolio of additional qualifying Leases and Leased Vehicles
from among all other unallocated Leases and Leased Vehicles owned by the
Origination Trust.
Payments in respect of the 99.8% 1997-B SUBI Interest will be
allocated between the Notes and this Transferor Certificate and paid to the
registered Holder of this Transferor Certificate as provided in the Agreement.
[It is the intention of the Transferor, as the Holder of this
Certificate, that the Notes will be indebtedness for federal, state and local
income and franchise tax purposes and for purposes of any other tax imposed on
or measured by income. The Owner Trustee and the Transferor, as the Holder of
this Certificate, by acceptance of this Certificate, agree to treat the Notes,
for purposes of federal, state and local income or franchise taxes and any other
tax imposed on or measured by income, as indebtedness and to report the
transactions contemplated by the Agreement on all applicable tax returns in a
manner consistent with such treatment.]
By accepting this Certificate, the Holder hereof waives any claim
to any proceeds or assets of the Origination Trustee and to all assets of the
Origination Trust other than those from time to time included within the 1997-B
SUBI Portfolio as 1997-B SUBI Assets and those proceeds or assets derived from
or earned by such 1997-B SUBI Assets.
[In the event that, notwithstanding the statement of intentions
and undertakings set forth in Section 4.12(a) of the Agreement and herein, it is
finally determined that the Notes do not evidence indebtedness of the Transferor
for all income and franchise tax purposes, but rather represent an equity
interest in the assets of the Trust, then the Transferor, as Holder hereof,
agrees (i) to treat the Notes, together with this Certificate, as representing
an interest in a partnership for all tax purposes, (ii) to treat all payments in
respect of such Certificate (to the extent not a return of capital) as a
"guaranteed payment" thereon made pursuant to Section 707(c) of the Code, and
(iii) to allocate all other items of income, gain, deduction, loss or credit
with respect to the assets and operations of the Trust to the Transferor.]
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This Certificate does not represent an obligation of, or an
interest in, the Transferor, the Servicer, the Indenture Trustee, the Owner
Trustee, the Origination Trust or any of their respective affiliates. This
Certificate is limited in right of payment to certain collections and recoveries
respecting the 99.8% 1997-B SUBI Interest and 1997-B SUBI Certificate, Insured
Residual Value Loss Amounts paid under the Residual Value Insurance Policy and
certain monies on deposit in the Reserve Fund and the Residual Value Surplus
Account and in certain other accounts, in each case to the extent and as more
specifically set forth in the Agreement. A copy of the Agreement may be examined
during normal business hours at the Corporate Trust Office of the Owner Trustee,
and at such other places, if any, designated by the Owner Trustee, by the
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholder under the Agreement at
any time by the Transferor, the Servicer, the Indenture Trustee and the Owner
Trustee. In certain limited circumstances, the Agreement may only be amended
with the consent of the Holders of Notes evidencing more than 50% of the
aggregate Percentage Interests of all Notes, voting together as a single class.
As provided in the Agreement, this Certificate shall be owned by
the Transferor and may not be transferred.
The obligations and responsibilities created by the Agreement and
the Trust created thereby shall terminate upon the payment to Noteholders of all
amounts required to be paid to them pursuant to the Agreement and the
disposition of all property held as part of the Trust. The Transferor may at its
option purchase the corpus of the Trust at a price specified in the Agreement,
and such purchase of the 99.8% 1997-B SUBI Interest and 99.8% 1997-B SUBI
Certificate and other property of the Trust will effect early retirement of this
Certificate; provided, however, such right of purchase is exercisable only on
the Distribution Date following the last day of a Collection Period as of which
the Note Balance shall be less than or equal to ten percent (10%) of the Initial
Note Balance.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Transferor Certificate shall not entitle the Holder hereof to any benefit
under the Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Owner Trustee on behalf of the Trust and
not in its individual capacity has caused this Transferor Certificate to be duly
executed.
Dated: _________, 199_ WORLD OMNI 1997-B AUTOMOBILE LEASE
SECURITIZATION TRUST
PNC BANK, DELAWARE, as Owner Trustee
(SEAL) By:
----------------------------------------
Authorized Officer
ATTEST:
_____________
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This is the Transferor Certificate referred
to in the within-mentioned Agreement.
PNC BANK, DELAWARE, as Owner Trustee
By:
---------------------------------
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EXHIBIT B
[FORM OF]
CERTIFICATE OF TRUST OF
WORLD OMNI 1997-B AUTOMOBILE LEASE SECURITIZATION TRUST
THIS Certificate of Trust of World Omni 1997-B Automobile Lease
Securitization Trust (the "Trust"), dated as of __________, 1997, is being duly
executed and filed by PNC Bank, Delaware, a Delaware banking corporation, as
trustee, to form a business trust under the Delaware Business Trust Act (12 Del.
Code, ss. 3801 et seq.).
1. Name. The name of the business trust formed hereby is WORLD
OMNI 1997-B AUTOMOBILE LEASE SECURITIZATION TRUST.
2. Delaware Trustee. The name and business address of the trustee
of the Trust resident in the State of Delaware is PNC Bank, Delaware, 000
Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000-0000.
3. This Certificate of Trust will be effective ____________,
1997.
IN WITNESS WHEREOF, the undersigned, being the trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
PNC Bank, Delaware, a Delaware banking
corporation, not in its individual
capacity, but solely as owner trustee
of the Trust.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
