EXECUTION COPY
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ADMINISTRATION AGREEMENT
among
WORLD OMNI AUTO RECEIVABLES TRUST 2003-A
as Issuer,
WORLD OMNI FINANCIAL CORP.,
as Administrator,
WORLD OMNI AUTO RECEIVABLES LLC,
as Seller,
and
THE BANK OF NEW YORK
as Indenture Trustee
Dated as of March 11, 2003
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ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of March 11, 2003 (as
amended from time to time, this "Agreement"), is among WORLD OMNI AUTO
RECEIVABLES TRUST 2003-A, a Delaware statutory trust (the "Issuer"), WORLD OMNI
FINANCIAL CORP. ("WOFCO" or in its capacity as administrator, the
"Administrator"), WORLD OMNI AUTO RECEIVABLES LLC (the "Seller") and THE BANK OF
NEW YORK, as Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer is a statutory trust under the Delaware
Statutory Trust Act created by a trust agreement dated as of February 5, 2003
(as amended and restated as of the date hereof, and as may be further amended,
supplemented or otherwise modified and in effect from time to time, the "Owner
Trust Agreement") among the Seller, as Depositor, U.S. Bank Trust National
Association, as Owner Trustee (together with its successors and assigns in such
capacity, the "Owner Trustee").
WHEREAS, the Issuer is issuing 1.30% Asset-Backed Notes, Class
A-1, 1.46% Asset-Backed Notes, Class A-2, 1.98% Asset-Backed Notes, Class A-3,
2.58% Asset-Backed Notes, Class A-4 and 2.35% Asset-Backed Notes, Class B
(collectively, the "Notes") pursuant to an Indenture, dated as of the date
hereof (as amended, supplemented or otherwise modified and in effect from time
to time, the "Indenture"), between the Issuer and the Indenture Trustee
(capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in, or incorporated by reference into, the Indenture);
WHEREAS, the Issuer is issuing Certificates (the
"Certificates") pursuant to the Owner Trust Agreement;
WHEREAS, the Issuer has entered into certain agreements in
connection with the issuance of the Notes including (i) the sale and servicing
agreement, dated as of the date hereof (as amended, supplemented or otherwise
modified and in effect from time to time, the "Sale and Servicing Agreement"),
between the Issuer, the Seller and WOFCO, as servicer (in such capacity, the
"Servicer"), (ii) a Letter of Representations, dated as of the date hereof,
among the Issuer, the Indenture Trustee and The Depository Trust Company ("DTC")
relating to the Notes (as amended, supplemented or otherwise modified and in
effect from time to time, the "Depository Agreement") and (iii) the Indenture
(the Sale and Servicing Agreement, the Depository Agreement, the Owner Trust
Agreement and the Indenture being referred to hereinafter collectively as the
"Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and
the Owner Trustee are required to perform certain duties in connection with (i)
the Notes and the collateral therefor pledged pursuant to the Indenture (the
"Collateral") and (ii) the beneficial ownership interest in the Issuer (the
holder of such interest being referred to herein as the "Depositor");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding
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clause and to provide such additional services consistent with the terms of this
Agreement and the Related Agreements as the Issuer and the Owner Trustee may
from time to time request; and
WHEREAS, the Administrator has the capacity to provide the
services required hereby and is willing to perform such services for the Issuer
and the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Duties of the Administrator.
(a) Primary Duties of the Administrator.
(i) The Administrator agrees to perform all its duties
as Administrator and the duties of the Issuer and the Owner
Trustee under the Related Agreements. In addition, the
Administrator shall consult with the Owner Trustee regarding
the duties of the Issuer or the Owner Trustee under the
Related Agreements. The Administrator shall monitor the
performance of the Issuer and shall advise the Owner Trustee
when action is necessary to comply with the respective duties
of the Issuer and the Owner Trustee under the Related
Agreements. The Administrator shall prepare for execution by
the Issuer, or shall cause the preparation by other
appropriate persons of, all such documents, reports, filings,
instruments, certificates and opinions that it shall be the
duty of the Issuer or the Owner Trustee to prepare, file or
deliver pursuant to the Related Agreements. In furtherance of
the foregoing, the Administrator shall take all appropriate
action that the Issuer or the Owner Trustee is required to
take pursuant to the Indenture including, without limitation,
such of the foregoing as are required with respect to the
following matters under the Indenture (references are to
Sections of the Indenture):
(A) the preparation of or obtaining of the
documents and instruments required for execution and
authentication of the Notes and delivery of the same to
the Indenture Trustee (Section 2.02);
(B) the preparation of or obtaining of the
documents and instruments required for execution and
authentication of temporary Notes and delivery of the
same to the Indenture Trustee (Section 2.03);
(C) the duty to cause the Note Register to be
kept and to give the Indenture Trustee notice of any
appointment of a new Note Registrar and the location, or
change in location, of the Note Register (Section 2.05);
(D) the duty to cause the replacement of lost or
mutilated Notes upon the request of the Issuer (Section
2.06);
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(E) the fixing or causing to be fixed of any
specified record date and the notification of the
Indenture Trustee and Noteholders with respect to
special payment dates, if any (Section 2.08(c));
(F) the preparation, obtaining or filing of the
instruments, opinions and certificates and other
documents required for the release of Collateral
(Section 2.10);
(G) the preparation of Definitive Notes in
accordance with the instructions of the Clearing Agency
(Section 2.13);
(H) the maintenance of an office in the Borough
of Manhattan, City of New York, for registration and
transfer or exchange of Notes (Section 3.02);
(I) the duty to cause newly appointed Paying
Agents, if any, to deliver to the Indenture Trustee the
instrument specified in the Indenture regarding funds
held in trust (Section 3.03);
(J) the direction to the Indenture Trustee to
deposit monies with Paying Agents, if any, other than
the Indenture Trustee (Section 3.03);
(K) the obtaining and preservation of the
Issuer's qualification to do business in each
jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of
the Indenture, the Notes and the Collateral (Section
3.04);
(L) the preparation of all supplements and
amendments to the Indenture and all financing
statements, continuation statements, instruments of
further assurance and other instruments and the taking
of such other action as is necessary or advisable to
protect the Collateral (Section 3.05);
(M) the delivery of an Opinion of Counsel on the
Closing Date and annual Opinions of Counsel as to the
Trust Estate, and the annual delivery of the Officer's
Certificate and certain other statements as to
compliance with the Indenture (Sections 3.06 and 3.09);
(N) the identification to the Indenture Trustee
in an Officer's Certificate of a Person with whom the
Issuer has contracted to perform its duties under the
Indenture (Section 3.07(b));
(O) the notification of the Indenture Trustee
and each Rating Agency of a Servicer Default under the
Sale and Servicing Agreement and, if such Servicer
Default arises from the failure of the Servicer to
perform any of its duties or obligations under the Sale
and Servicing
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Agreement with respect to the Receivables, the taking of
all reasonable steps available to remedy such failure
(Section 3.07(d));
(P) the Issuer's duty to use all reasonable
efforts to cause the Servicer to comply with Sections
4.09, 4.10, 4.11, 5.07(b) and Article IX of the Sale and
Servicing Agreement (Section 3.14);
(Q) the delivery of written notice to the
Indenture Trustee, Owner Trustee and each Rating Agency
of each Event of Default under the Indenture and each
default by the Servicer or the Seller under the Sale and
Servicing Agreement (Section 3.19);
(R) the monitoring of the Issuer's obligations
as to the satisfaction and discharge of the Indenture
and the preparation of an Officer's Certificate and the
obtaining of the Opinion of Counsel and the Independent
Certificate relating thereto (Section 4.01);
(S) the compliance with any written directive of
the Indenture Trustee with respect to the sale of the
Collateral in a commercially reasonable manner if an
Event of Default shall have occurred and be continuing
(Section 5.04);
(T) the preparation of any written instruments
required to give effect to the authority of any
co-trustee or separate trustee and any written
instruments necessary in connection with the resignation
or removal of the Indenture Trustee or any co-trustee or
separate trustee (Sections 6.08 and 6.10);
(U) the furnishing of the Indenture Trustee with
the names and addresses of Noteholders during any period
when the Indenture Trustee is not the Note Registrar
(Section 7.01);
(V) the preparation and, after execution by the
Issuer, the filing with the Commission, any applicable
state agencies and the Indenture Trustee of documents
required to be filed on a periodic basis with, and
summaries thereof as may be required by rules and
regulations prescribed by, the Commission and any
applicable state agencies and the transmission of such
summaries, as necessary, to the Noteholders (Section
7.03);
(W) the preparation and delivery of Issuer
Orders, Officer's Certificates and Opinions of Counsel
and all other actions necessary with respect to
investment and reinvestment of funds in the Trust
Accounts (Sections 8.02 and 8.03);
(X) the preparation of an Issuer Request and
Officer's Certificate and the obtaining of an Opinion of
Counsel and Independent
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Certificates, if necessary, for the release of the Trust
Estate (Sections 8.04 and 8.05);
(Y) the preparation of Issuer Orders and the
obtaining of Opinions of Counsel with respect to the
execution of supplemental indentures and the mailing to
the Noteholders of notices with respect to such
supplemental indentures (Sections 9.01, 9.02 and 9.03);
(Z) arranging for the execution and delivery of
new Notes conforming to any supplemental indenture
(Section 9.06);
(AA) the duty to notify Noteholders and the
Rating Agencies of redemption of the Notes or to cause
the Indenture Trustee to provide such notification
(Section 10.02);
(BB) the preparation and delivery of all
Officer's Certificates, Opinions of Counsel and
Independent Certificates with respect to any requests by
the Issuer to the Indenture Trustee to take any action
under the Indenture (Section 11.01(a));
(CC) the preparation and delivery of Officer's
Certificates and the obtaining of Independent
Certificates, if necessary, for the release of property
from the lien of the Indenture (Section 11.01(b));
(DD) the notification of the Rating Agencies,
upon the failure of the Issuer or the Indenture Trustee
to give such notification, of the information required
pursuant to Section 11.04 of the Indenture (Section
11.04);
(EE) the preparation and delivery to the
Noteholders and the Indenture Trustee of any agreements
with respect to alternate payment and notice provisions
(Section 11.06); and
(FF) the recording of the Indenture, if
applicable (Section 11.15); and
(ii) The Administrator will:
(A) pay the Indenture Trustee and any separate
trustee or co-trustee appointed pursuant to Section 6.10
of the Indenture (a "Separate Trustee") from time to
time reasonable compensation for all services rendered
by the Indenture Trustee or Separate Trustee, as the
case may be, under the Indenture (which compensation
shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in
the Indenture, reimburse the Indenture Trustee or any
Separate Trustee upon its request
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for all reasonable expenses, disbursements and advances
incurred or made by the Indenture Trustee or Separate
Trustee, as the case may be, in accordance with any
provision of the Indenture (including the reasonable
compensation, expenses and disbursements of its agents
and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence, bad
faith or willful misconduct;
(C) indemnify the Indenture Trustee and any
Separate Trustee and their respective agents for, and
hold them harmless against, any Expenses (as defined
below) incurred without negligence, bad faith or willful
misconduct on their part, arising out of or in
connection with the acceptance or administration of the
transactions contemplated by the Basic Documents,
including the reasonable costs and expenses of defending
themselves against any claim or liability in connection
with the exercise or performance of any of their powers
or duties under the Indenture; and
(D) indemnify the Owner Trustee (including in
its individual capacity) and its officers, directors,
employees, successors, assigns, agents and servants as
primary obligor from and against, any and all
liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable
and documented costs, expenses and disbursements
(including reasonable and documented legal fees and
expenses and other amounts owed to the Owner Trustee
pursuant to the Trust Agreement) of any kind and nature
whatsoever (collectively, "Expenses") which may at any
time be imposed on, incurred by, or asserted against the
Owner Trustee in any way relating to or arising out of
the Basic Documents, the Owner Trust Estate, the
administration of the Owner Trust Estate or the action
or inaction of the Owner Trustee, except only that the
Administrator shall not be liable for or required to
indemnify the Owner Trustee from and against Expenses
arising or resulting from any of the matters described
in the third sentence of Section 7.01 of the Owner Trust
Agreement. The indemnities contained in this Section
shall survive the resignation or termination of the
Owner Trustee, or the termination of this Agreement. In
any event of any claim, action or proceeding for which
indemnity will be sought pursuant to this Section, the
Owner Trustee's choice of legal counsel shall be subject
to the approval of the Administrator, which approval
shall not be unreasonably withheld.
(b) Additional Duties of the Administrator.
(i) In addition to the duties set forth in Section 1
(a)(i), the Administrator shall perform such calculations and
shall prepare or shall cause the preparation by other
appropriate persons of, and shall execute on behalf of the
Issuer or the Owner Trustee, all such documents, reports,
filings, instruments, certificates and opinions that it shall
be the duty of the Issuer or the Owner Trustee to prepare,
file or deliver pursuant to the Related Agreements, and at the
request of the Owner Trustee shall take all appropriate action
that the Issuer or the
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Owner Trustee is required to take pursuant to the Related
Agreements. In furtherance thereof, the Owner Trustee shall on
behalf of itself and of the Issuer, execute and deliver to the
Administrator and to each successor Administrator appointed
pursuant to the terms hereof, one or more powers of attorney
substantially in the form of Exhibit A hereto, appointing the
Administrator the attorney-in-fact of the Owner Trustee and
the Issuer for the purpose of executing on behalf of the Owner
Trustee and the Issuer all such documents, reports, filings,
instruments, certificates and opinions. Subject to Section 5
of this Agreement, and in accordance with the directions of
the Owner Trustee, the Administrator shall administer, perform
or supervise the performance of such other activities in
connection with the Collateral (including the Related
Agreements) as are not covered by any of the foregoing
provisions and as are expressly requested by the Owner Trustee
and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be
responsible for performance of the duties of the Owner Trustee
set forth in Sections 5.05 and 5.06 of the Owner Trust
Agreement with respect to, among other things, accounting and
reports to the Depositor.
(iii) As soon as practicable, but no later than
seventeen months after the date of the final prospectus, the
Administrator will cause the Indenture Trustee to make
generally available to the Noteholders an earnings statement
of the Issuer covering a period of at least 12 months
beginning after the later of (i) the effective date of the
registration statement relating to the Notes and (ii) the
effective date of the most recent post-effective amendment to
the registration statement to become effective prior to the
date of the final prospectus and, in each case, satisfying the
provisions of Section 11(a) of the Securities Act (including
Rule 158 promulgated thereunder).
(iv) The Administrator shall provide written notice to
the Indenture Trustee upon notification to the Administrator
that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities as described in the
Depository Agreement. Upon the receipt of such notification
from the Clearing Agency, the Administrator shall use
reasonable efforts to locate and appoint a qualified successor
Clearing Agency.
(v) The Administrator shall have the duties of the
Administrator specified in Section 10.02 of the Owner Trust
Agreement required to be performed in connection with the
resignation or removal of the Owner Trustee, and any other
duties expressly required to be performed by the Administrator
under the Owner Trust Agreement.
(vi) In carrying out the foregoing duties or any of
its other obligations under this Agreement, the Administrator
may enter into transactions or otherwise deal with any of its
Affiliates; provided that the terms of any such transactions
or dealings shall be in accordance with any directions
received from the Issuer and
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shall be, in the Administrator's opinion, no less favorable to
the Issuer than would be available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless authorized
pursuant to the Basic Documents and within a reasonable time
before the taking of such action, the Administrator shall have
notified the Owner Trustee of the proposed action and the
Owner Trustee shall not have unreasonably withheld consent or
shall not have provided an alternative direction. For the
purpose of the preceding sentence, "non-ministerial matters"
shall include, without limitation:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by
the Issuer and the compromise of any action, claim or
lawsuit brought by or against the Issuer (other than in
connection with the collection of the Contracts);
(C) the amendment, change or modification of
the Related Agreements;
(D) the appointment of successor Note
Registrars, successor Paying Agents and successor
Indenture Trustees pursuant to the Indenture or the
appointment of a successor Administrator or a Successor
Servicer, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee of its
obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and
shall not, (A) make any payments to the Noteholders under the
Related Agreements, (B) sell the Collateral pursuant to clause
(iv) of Section 5.04(a) of the Indenture, (C) take any other
action that the Issuer directs the Administrator not to take
on its behalf or (D) take any other action which may be
construed as having the effect of varying the investment of
the Holders.
Section 2. Records.
The Administrator shall maintain appropriate books of account
and records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by the Issuer and the Indenture
Trustee with reasonable prior notice at any time during normal business hours.
The Issuer and the Indenture Trustee shall, and shall cause their
representatives to, hold in confidence all such information except to the extent
disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and
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except to the extent that the Indenture Trustee may reasonably determine that
such disclosure is consistent with its obligations under the Indenture.
Section 3. Compensation.
As compensation for the performance of the Administrator's
obligations under this Agreement and as reimbursement for its expenses related
thereto, the Administrator shall be entitled to an annual payment of
compensation of $1,000 which shall be solely an obligation of the Servicer.
Section 4. Additional Information to be Furnished to the Issuer.
The Administrator shall furnish to the Issuer and the
Indenture Trustee from time to time such additional information regarding the
Collateral as the Issuer or the Indenture Trustee shall reasonably request.
Section 5. Independence of the Administrator.
For all purposes of this Agreement, the Administrator shall be
an independent contractor and shall not be subject to the supervision of the
Issuer or the Owner Trustee with respect to the manner in which it accomplishes
the performance of its obligations hereunder. Unless expressly authorized by the
Issuer, the Administrator shall have no authority to act for or represent the
Issuer or the Owner Trustee in any way and shall not otherwise be deemed an
agent of the Issuer or the Owner Trustee.
Section 6. No Joint Venture.
Nothing contained in this Agreement shall (i) constitute the
Administrator and any of the Issuer, the Owner Trustee or the Indenture Trustee
as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) be construed to impose
any liability as such on any of them or (iii) be deemed to confer on any of them
any express, implied or apparent authority to incur any obligation or liability
on behalf of the others.
Section 7. Other Activities of Administrator.
Nothing herein shall prevent the Administrator or its
Affiliates from engaging in other businesses or, in its sole discretion, from
acting in a similar capacity as an administrator for any other Person or entity
even though such person or entity may engage in business activities similar to
those of the Issuer, the Owner Trustee or the Indenture Trustee.
Section 8. Term of Agreement; Resignation and Removal of
Administrator.
This Agreement shall continue in force until the dissolution
of the Issuer, upon which event this Agreement shall automatically terminate.
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(a) Subject to Sections 8(d) and 8(e), the Administrator may
resign its duties hereunder by providing the Issuer and the Indenture
Trustee with at least 60 days' prior written notice.
(b) Subject to Sections 8(d) and 8(e), the Issuer may remove
the Administrator without cause by providing the Administrator with at
least 60 days' prior written notice.
(c) Subject to Sections 8(d) and 8(e), at the sole option of
the Issuer, the Administrator may be removed immediately upon written
notice of termination from the Issuer to the Administrator if any of
the following events shall occur:
(i) the Administrator shall default in the
performance of any of its duties under this Agreement and,
after notice of such default, shall not cure such default
within 30 days (or, if such default cannot be cured in such
time, shall not give within ten days such assurance of cure as
shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall
enter a decree or order for relief, and such decree or order
shall not have been vacated within 60 days, in respect of the
Administrator in any involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter
in effect or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for the
Administrator or any substantial part of its property or order
the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, shall consent to the entry of
an order for relief in an involuntary case under any such law,
or shall consent to the appointment of a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official
for the Administrator or any substantial part of its property,
shall consent to the taking of possession by any such official
of any substantial part of its property, shall make any
general assignment for the benefit of creditors or shall fail
generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified
in clauses (ii) or (iii) above shall occur, it shall give written notice thereof
to the Issuer and the Indenture Trustee within seven days after the occurrence
of such event.
(d) No resignation or removal of the Administrator pursuant
to this Section shall be effective until (i) a successor Administrator
acceptable to the Indenture Trustee shall have been appointed by the
Issuer with the consent of the Indenture Trustee and (ii) such
successor Administrator shall have agreed in writing to be bound by the
terms of this Agreement in the same manner as the Administrator is
bound hereunder.
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(e) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with
respect to the proposed appointment.
Section 9. Action upon Termination, Resignation or Removal.
Promptly upon the effective date of termination of this
Agreement pursuant to the first sentence of Section 8 or the resignation or
removal of the Administrator pursuant to Section 8(a), (b) or (c), respectively,
the Administrator shall be entitled to be paid the prorated portion of all fees
and reimbursable expenses as set forth in Section 3 accruing to it to the date
of such termination, resignation or removal. The Administrator shall forthwith
upon such termination pursuant to the first sentence of Section 1.08 deliver to
the Issuer all property and documents of or relating to the Collateral then in
the custody of the Administrator. In the event of the resignation or removal of
the Administrator pursuant to Section 8(a), (b) or (c), respectively, the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties of
the Administrator. The Administrator's payment and indemnification obligations
pursuant to this Agreement which arose as a result of Administrator's actions
while acting as Administrator shall survive the termination of this Agreement
and the resignation and removal of the Administrator.
Section 10. Notices.
Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
WORLD OMNI AUTO RECEIVABLES TRUST 2003-A, c/o U.S. Bank Trust
National Association, 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx
00000.
(b) if to the Administrator, to:
WORLD OMNI FINANCIAL CORP., 000 Xxx Xxxxx Xxxxxxxxx, Xxxxxxxxx
Xxxxx, Xxxxxxx 00000 Attention: Xxxxxxx Xxxxxxxxx, Telecopy: (000) 000-0000
(c) if to the Indenture Trustee, to:
The Bank of New York, 000 Xxxxxxx Xxxxxx, 0 Xxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxx Xxxxx, Telecopy: 000-000-0000 or to such other
address as any party shall have provided to the other parties in writing. Any
notice required to be in writing hereunder shall be deemed given if such notice
is mailed by certified mail, postage prepaid, or hand-delivered to the address
of such party as provided above.
Section 11. Amendments.
This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the parties hereto, with the prior
written consent of the Owner Trustee, but without the consent of the
Noteholders, for the purpose of adding any provisions to or
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changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders; provided that such
amendment will not, as so evidenced, upon the request of the Indenture Trustee,
by an Officer's Certificate, materially and adversely affect the interest of any
Noteholder. This Agreement may also be amended by the parties hereto with the
prior written consent of the Owner Trustee and the holders of Notes evidencing
at least 50% of the Outstanding Amount of the Controlling Securities for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
Noteholders; provided, further, that no such amendment may (i) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on the Contracts or distributions that are required to
be made for the benefit of the Noteholders or (ii) reduce the aforesaid
percentage of the holders of Notes which are required to consent to any such
amendment, without the consent of the holders of all outstanding Notes.
Notwithstanding the foregoing, the Administrator may not amend this Agreement
without the permission of the Seller, which permission shall not be unreasonably
withheld.
Section 12. Successors and Assigns.
This Agreement may not be assigned by the Administrator unless
such assignment is previously consented to in writing by the Issuer, the Owner
Trustee and the Indenture Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder in
the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer, the Indenture Trustee or the Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator; provided that the Rating Agency
Condition is satisfied and such successor organization executes and delivers to
the Issuer, the Owner Trustee and the Indenture Trustee an agreement, in form
and substance reasonably satisfactory to the Issuer, the Owner Trustee and the
Indenture Trustee, in which such corporation or other organization agrees to be
bound hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement shall
bind any successors or assigns of the parties hereto.
Section 13. Governing Law.
This Agreement shall, in accordance with Section 5-1401 of the
General Obligations Law of the State of New York, be governed by, and construed
in accordance with, the laws of the State of New York without regard any
otherwise applicable conflict of law provisions.
Section 14. Headings.
The section and subsection headings hereof have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
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Section 15. Counterparts.
This Agreement may be executed in several counterparts, each
of which shall be an original and all of which shall constitute but one and the
same agreement.
Section 16. Severability.
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 17. Not Applicable to WOFCO in Other Capacities.
Nothing in this Agreement shall affect any obligation WOFCO
may have in any other capacity.
Section 18. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the
contrary, this instrument has been countersigned by U.S. Bank Trust
National Association, not in its individual capacity but solely in its
capacity as Owner Trustee of the Issuer, and in no event shall U.S.
Bank Trust National Association, in its individual capacity or any
beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations
of the Issuer hereunder, as to all of which recourse shall be had
solely to the assets of the Issuer. For all purposes of this Agreement,
in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Articles VI, VII and VIII, of
the Owner Trust Agreement.
(b) Notwithstanding anything contained herein to the
contrary, this Agreement has been countersigned by The Bank of New
York, as Indenture Trustee and in no event shall The Bank of New York
have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as
to all of which recourse shall be had solely to the assets of the
Issuer.
Section 19. Third- Party Beneficiary.
The Owner Trustee is a third-party beneficiary to this
Agreement and is entitled to the rights and benefits hereunder and may enforce
the provisions hereof as if it were a party hereto.
Section 20. Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement,
each party hereto shall not, at any time, acquiesce, petition or
otherwise invoke or cause the Issuer to invoke the process of any court
or government authority for the purpose of commencing
14
or sustaining a case against the Issuer under any Federal or state
bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement,
each party hereto shall not, solely in its capacity as a creditor of
the Seller, at any time, acquiesce, petition or otherwise invoke or
cause the Seller to invoke the process of any court or government
authority for the purpose of commencing or sustaining an involuntary
case against the Seller under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of
the Seller or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Seller.
* * * * *
15
EXECUTION COPY
IN WITNESS WHEREOF, the parties hereto have caused this
Administration Agreement to be duly executed and delivered as of the day and
year first above written.
WORLD OMNI AUTO RECEIVABLES TRUST
2003-A, as Issuer
By: U.S. BANK TRUST NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
WORLD OMNI AUTO RECEIVABLES LLC, as
Seller
By: /s/ Xxxx Xxxxxxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Assistant Treasurer
THE BANK OF NEW YORK, as Indenture
Trustee
By: /s/ Xxxx Xxxxx
-----------------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
WORLD OMNI FINANCIAL CORP., as
Administrator
By: /s/ Xxxx Xxxxxxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Assistant Treasurer
Administration Agreement
EXHIBIT A
FORM OF POWER OF ATTORNEY
STATE OF ______________ )
COUNTY OF _____________ )
KNOW ALL MEN BY THESE PRESENTS, that U.S. Bank Trust National
Association, a national banking association, not in its individual capacity but
solely as owner trustee ("Owner Trustee") for the WORLD OMNI AUTO RECEIVABLES
TRUST 2003-A (the "Trust"), does hereby make, constitute, and appoint WORLD OMNI
FINANCIAL CORP. as Administrator under the Administration Agreement (as defined
below), and its agents and attorneys, as Attorneys-in-Fact to execute on behalf
of the Owner Trustee or the Trust all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Owner
Trustee or the Trust to prepare, file or deliver pursuant to the Related
Agreements (as defined in the Administration Agreement), including, without
limitation, to appear for and represent the Owner Trustee and the Trust in
connection with the preparation, filing and audit of federal, state and local
tax returns pertaining to the Trust, and with full power to perform any and all
acts associated with such returns and audits that the Owner Trustee could
perform, including without limitation, the right to distribute and receive
confidential information, defend and assert positions in response to audits,
initiate and defend litigation, and to execute waivers of restriction on
assessments of deficiencies, consents to the extension of any statutory or
regulatory time limit, and settlements. For the purpose of this Power of
Attorney, the term "Administration Agreement" means the Administration
Agreement, dated as of March 11, 2003, by and among the Trust, World Omni
Financial Corp., as Administrator, World Omni Auto Receivables LLC, as Seller,
and The Bank of New York, as Indenture Trustee, as such may be amended,
supplemented or otherwise modified and in effect from time to time.
All powers of attorney for this purpose heretofore filed or
executed by the Owner Trustee are hereby revoked.
EXECUTED this ___ day of ____________, ____
U.S. BANK TRUST NATIONAL
ASSOCIATION, not in its
individual capacity but
solely as Owner Trustee
By: _________________________
Name:
Title:
Administration Agreement
