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EXHIBIT 10.4
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VT INC.,
AS TRUSTEE OF
WORLD OMNI LT
AND
WORLD OMNI FINANCIAL CORP.
SUPPLEMENT 1997-A TO
SERVICING AGREEMENT
DATED AS OF APRIL 1, 1997
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TABLE OF CONTENTS
Page
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE SIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 6.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ALFI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ALFI LP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Current Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Eligible Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ERISA Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
First Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1997-A SUBI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1997-A SUBI Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1997-A Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1997-A SUBI Portfolio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1997-A SUBI Supplement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Nonrecoverable Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Origination Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Origination Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Origination Trust Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Origination Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Prospectus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Securitization Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Securitization Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Securitization Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Servicer Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Servicer Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Servicer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Servicing Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Supplement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Transferor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Unfunded Current Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE SEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
REPRESENTATIONS AND WARRANTIES OF SERVICER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 7.01. Organization and Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 7.02. Authorization, Execution and Delivery; No Conflicts . . . . . . . . . . . . . . . . . . . . 7
Section 7.03. Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 7.04. Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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Section 7.05. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 7.06. Representations to AISLIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE EIGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CREATION OF 1997-A SUBI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 8.01. Initial Creation of 1997-A SUBI Portfolio. . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 8.02. Subsequent Additions to 1997-A SUBI Portfolio . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8.03. Servicer Payment in Respect of Certain
Leases and Leased Vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 8.04. Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING OF LEASES
IN 1997-A SUBI PORTFOLIO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 9.01. Servicer Bound by Servicing Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 9.02. Collection of Monthly Lease Payments and Remittances; Application of Proceeds;
Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 9.03. Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 9.04. Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 9.05. Payment of Certain Fees and Expenses;
No Offset . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 9.06. Servicing Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 9.07. Repossession and Sale of Leased Vehicles. . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 9.08. Indemnification by Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 9.09. Third Party Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 9.10. Insurance Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 9.11. Servicer Not to Resign; Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 9.12. Obligor Insurance Coverage in Respect of Leased Vehicles . . . . . . . . . . . . . . . . . 23
Section 9.13. Corporate Existence; Status; Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 9.14. Mobile Leased Premises. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE TEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
STATEMENTS AND REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 10.01. Reporting by the Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 10.02. Annual Accountants' Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 10.03. Other Certificates and Notices from Servicer. . . . . . . . . . . . . . . . . . . . . . . . 25
Section 10.04. Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 11.01. Events of Default; Termination of Servicer as to 1997-A SUBI Portfolio. . . . . . . . . . . . 26
Section 11.02. No Effect on Other Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE TWELVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 12.01. Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 12.02. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 12.03. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 12.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 12.05. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 12.06. Inspection and Audit Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 12.07. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 12.08. Article and Section Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 12.09. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 12.10. Rights Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 12.11. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 12.12. Third-Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
EXHIBITS
EXHIBIT A - Schedule of 1997-A Leases and 1997-A
Leased Vehicles as of the Initial Cutoff
Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B - Form of Servicer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
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SUPPLEMENT 1997-A TO
SERVICING AGREEMENT
SUPPLEMENT 1997-A TO SERVICING AGREEMENT (the "Supplement"),
dated as April 1, 1997, between VT INC., an Alabama corporation, as trustee
(hereinafter, together with its successors and assigns, the "Origination
Trustee") of WORLD OMNI LT, an Alabama business trust (the "Origination
Trust"), and WORLD OMNI FINANCIAL CORP., a Florida corporation (the
"Servicer").
RECITALS
A. Auto Lease Finance L.P. ("ALFI LP"), the Origination
Trustee and, for certain limited purposes set forth therein, First Bank
National Association (successor trustee to Bank of America Illinois, an
Illinois banking corporation) (together with its successors, "First Bank") have
entered into that certain Second Amended and Restated Trust Agreement dated as
of July 1, 1994 (amending and restating that certain original Trust Agreement
dated as of November 1, 1993, among Auto Lease Finance, Inc. ("ALFI"), the
Origination Trustee and First Bank, and that certain Amended and Restated Trust
Agreement dated as of June 1, 1994 among ALFI, ALFI LP, the Origination Trustee
and First Bank) as amended by that certain Amendment No. 1 to Second Amended
and Restated Trust Agreement dated as of November 1, 1994, among the same
parties (as so amended and restated, and as it may be further amended,
supplemented or modified, the "Origination Trust Agreement"), pursuant to which
ALFI and the Origination Trustee formed 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 the Servicer have
entered into that certain Limited Partnership Agreement dated as of June 1,
1994, as amended and restated by that certain First 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 parties hereto also have entered into that
certain Second Amended and Restated Servicing Agreement dated as of July 1,
1994 (as the same has been supplemented, is supplemented hereby and may be
further amended, supplemented or modified, the "Servicing Agreement"), amending
and restating that certain original Servicing Agreement dated as of November 1,
1993, and that certain Amended and Restated Servicing Agreement dated as of
June 1, 1994, which provides for, among other things, the servicing of the
Trust Assets by the Servicer.
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C. Concurrently herewith, and as contemplated by the
Servicing Agreement and the Origination Trust Agreement, ALFI LP, the
Origination Trustee, First Bank and World Omni Lease Securitization L.P. (the
"Transferor") are entering into that certain Supplement 1997-A to Trust
Agreement dated as of April 1, 1997 (the "1997-A SUBI Supplement"), pursuant to
which the Origination Trustee, on behalf of the Origination Trust and at the
direction of ALFI LP, which also will be at that time a beneficiary of the
Origination Trust, 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-A SUBI"), whose
beneficiaries generally will be entitled to the net cash flow arising from, but
only from, the related SUBI Portfolio (as defined in the Origination Trust
Agreement) (such SUBI Portfolio, the "1997-A SUBI Portfolio"), a SUBI
Certificate (as defined in the Origination Trust Agreement) representing a
99.8% beneficial interest in the 1997-A SUBI (such SUBI Certificate, the "99.8%
1997-A SUBI Certificate") and a SUBI Certificate representing the remaining
0.2% beneficial interest in the 1997-A SUBI (such SUBI Certificate, the "0.2%
1997-A SUBI Certificate" and, together with the 99.8% 1997-A SUBI Certificate
and any replacements of either of them, the "1997-A SUBI Certificates"), all as
set forth in the Origination Trust Agreement and the 1997-A SUBI Supplement.
D. Also concurrently herewith, ALFI LP and the
Transferor are entering into that certain SUBI Certificate Purchase and Sale
Agreement dated as of April 1, 1997, pursuant to which ALFI LP is selling to
the Transferor, without recourse, all of ALFI LP's right, title and interest in
and to the 1997-A SUBI and the 1997-A SUBI Certificates, all moneys due thereon
and paid thereon or in respect thereof and the right to realize on any property
that may be deemed to secure the 1997-A 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 in the Securitization Trust
Agreement) of the 1997-A SUBI Portfolio as of the Initial Cutoff Date (as
defined in the 1997-A SUBI Supplement).
E. Also concurrently herewith, and as contemplated by
the Servicing Agreement and the Origination Trust Agreement, the Transferor and
First Bank, as Trustee (the "Securitization Trustee"), are entering into that
certain Securitization Trust Agreement dated as of April 1, 1997 (the
"Securitization Trust Agreement") pursuant to which the 99.8% 1997-A SUBI
Certificate will be transferred to the Securitization Trustee, in that
capacity, in connection with a Securitized Financing (as defined in the
Origination Trust Agreement) by the Transferor, but the 0.2% 1997-A SUBI
Certificate will be retained by the
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Transferor and not used in connection with such Securitized Financing.
F. The parties desire to supplement the terms of the
Servicing Agreement insofar as they apply to the 1997-A SUBI, the 1997-A SUBI
Portfolio, and the 1997-A SUBI Certificates to provide for further specific
servicing obligations that will benefit the holders of the 1997-A SUBI
Certificates and the parties to and the beneficiaries of the Securitized
Financing contemplated by the Securitization Trust Agreement, all as generally
contemplated by the Servicing Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained and in the Servicing Agreement, the parties hereto
agree to the following supplemental obligations with regard to the 1997-A SUBI
Portfolio:
ARTICLE SIX
DEFINITIONS
SECTION 6.01. DEFINITIONS.
For all purposes of this Supplement, except as otherwise
expressly provided or unless the context otherwise requires, (a) unless
otherwise defined herein, all capitalized terms used herein shall have the
meanings attributed to them by Section 1.01 of the Servicing Agreement, by
Section 0.01 of the Origination Trust Agreement, by Section 13.01 of the 1997-A
SUBI Supplement, or by Section 1.01 of the Securitization Trust Agreement, as
applicable, (b) the capitalized terms defined in this Supplement have the
meanings assigned to them in this Supplement and include (i) all genders and
(ii) the plural as well as the singular, (c) all references to words such as
"herein", "hereof" and the like shall refer to this Supplement as a whole and
not to any particular article or section within this Supplement, (d) the term
"include" and all variations thereon shall mean "include without limitation",
(e) the term "or" shall include "and/or", and (f) any reference herein to the
"Origination Trustee, acting on behalf of the Origination Trust," or words of
similar import, shall be deemed to mean the Origination Trustee, acting on
behalf of the Origination Trust and all beneficiaries thereof.
"Advance" means, (i) with respect to all Delinquent Leases
included in the 1997-A SUBI Portfolio during a Collection Period, an aggregate
advance required to be made with respect to such Delinquent Leases, the amount
of which shall equal the sum of all Monthly Lease Payments due but not received
during such Collection Period; provided, however, that for purposes of this
definition, the term "Delinquent Lease" shall have the meaning set forth in the
1997-A SUBI Supplement, except that it shall
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refer to 1997-A Leases that are 31 days or more past due, not 61 days or more
past due; and (ii) with respect to Leases that are included in the 1997-A SUBI
Portfolio during a Collection Period but which are not Delinquent Leases, an
aggregate advance permitted (but not required) to be made with respect to any
Monthly Lease Payments under such Leases that are one or more days, but less
than 31 days, past due.
"ALFI" and "ALFI LP" have the respective meanings set forth
in Recital A.
"Code" means the Internal Revenue Code of 1986, as amended.
"Current Liability" means, with respect to any Plan, the
present value of the accrued benefits under the Plan, as set forth in the most
recent audited consolidated financial statements of JM Family Enterprises, Inc.
and its subsidiaries.
"Eligible Servicer" means the Trust Agent or an entity that is
currently servicing a portfolio of automobile and/or light truck retail
installment lease contracts, that is legally qualified and has the capacity to
service the 1997-A Leases and that has demonstrated the ability to service a
portfolio of similar lease contracts professionally and competently in
accordance with high standards of skill and care.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute of similar
import, together with the regulations thereunder, in each case as in effect
from time to time. References to sections of ERISA shall be construed to refer
also to any successor sections.
"ERISA Affiliate" means each person (as defined in Section
3(9) of ERISA) which, together with the identified person, would be deemed to
be a member of the same "controlled group" within the meaning of Section
414(b), (c), (m) and (o) of the Code or Section 4001 of ERISA.
"First Bank" has the meaning set forth in Recital A.
"1997-A SUBI" has the meaning set forth in Recital C.
"1997-A SUBI Account" means any SUBI Account related to the
1997-A SUBI.
"1997-A Event of Default" means any of the acts, events or
occurrences set forth in Section 11.01.
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"1997-A SUBI Portfolio" has the meaning set forth in Recital C.
"1997-A SUBI Supplement" has the meaning set forth in Recital
C.
"Nonrecoverable Advance" means any Advance that, in the
Servicer's reasonable judgment, may not be ultimately recoverable by the
Servicer from Matured Leased Vehicle Proceeds, Repossessed Vehicle Proceeds or
other Liquidation Proceeds or Insurance Proceeds, any Residual Value Insurance
Policy or otherwise.
"Origination Trust" has the meaning set forth in the Preamble.
"Origination Trust Agreement" has the meaning set forth in
Recital A.
"Origination Trust Expenses" has the meaning set forth in
Section 9.02(e).
"Origination Trustee" has the meaning set forth in the
Preamble.
"Plan" means an "employee benefit plan," as such term is
defined in Section 3(3) of ERISA.
"Prospectus" means that certain prospectus dated April __,
1997 relating to the public offering of the Class A Certificates issued by the
Securitization Trust.
"Residual Value Loss Determination Date" means, with respect
to a Collection Period, the fifteenth day of the following month, or if that
day is not a Business Day, the next Business Day, beginning with April 15,
1997.
"Securitization Trust" means the trust created by the
Securitization Trust Agreement.
"Securitization Trust Agreement" has the meaning set forth in
Recital E.
"Securitization Trustee" has the meaning set forth in Recital
E.
"Servicer Letter of Credit" means a letter of credit, surety
bond or insurance policy under which demands for payment may be made to secure
timely remittance by the Servicer of monthly collections received in respect of
the 1997-A SUBI Assets to the 1997-A SUBI Collection Account.
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"Servicer Reimbursement" has the meaning set forth in Section
9.02(g).
"Servicer's Certificate" has the meaning set forth in Section
10.01(b).
"Servicing Agreement" has the meaning set forth in Recital B.
"Supplement" has the meaning set forth in the Preamble.
"Transferor" has the meaning set forth in Recital C.
"Trust Agent" has the meaning set forth in the Preamble.
"Unfunded Current Liability" of any Plan means the amount, if
any, by which the present value of the accrued benefits under the Plan as of
the close of its most recent Plan year exceeds the value of the Plan's assets,
which value shall be determined as set forth in the most recent audited
consolidated financial statements of JM Family Enterprises, Inc. and its
subsidiaries.
ARTICLE SEVEN
REPRESENTATIONS AND WARRANTIES OF SERVICER
The Servicer represents and warrants to the Securitization
Trustee as follows:
SECTION 7.01. ORGANIZATION AND STANDING.
The Servicer: (i) is a corporation validly organized and
existing and in good standing under the laws of the State of Florida; (ii) has
qualified to do business as a foreign corporation and is in good standing in
the State of Alabama and any other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not have a
material adverse effect on the ability of the Servicer to carry out its
obligations as Servicer under the Servicing Agreement or this Supplement; (iii)
has full power, authority and legal right to own its property, to carry on its
business as presently conducted, and to enter into and perform its obligations
under the Servicing Agreement and this Supplement; and (iv) holds all requisite
licenses and permits, the absence of which would have a material adverse effect
on its ability to carry on its business as presently conducted.
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SECTION 7.02. AUTHORIZATION, EXECUTION AND DELIVERY; NO
CONFLICTS.
The execution and delivery by the Servicer of this Supplement
are within the corporate power of the Servicer and have been duly authorized by
all necessary corporate action on the part of the Servicer. Neither the
execution and delivery of this Supplement, nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default (with
notice or passage of time or both) under any provision of any law, governmental
rule, regulation, judgment, decree or order binding on the Servicer or its
properties or the articles of incorporation or bylaws of the Servicer, or any
provision of any indenture, mortgage, contract or other instrument to which the
Servicer is a party or by which it is bound, or result in the acceleration of
any obligation under, or the creation or imposition of any Lien upon, any of
its property pursuant to the terms of any such indenture, mortgage, contract or
other instrument.
SECTION 7.03. APPROVALS.
The Servicer 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 Supplement and the consummation of all the transactions herein
contemplated, and the Servicer is not required to obtain the consent of any
other party or the consent, license, approval, waiver 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 Supplement.
SECTION 7.04. ENFORCEABILITY.
This Supplement constitutes a legal, valid and binding
instrument enforceable against the Servicer in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent conveyance, and other similar
laws relating to the enforcement of creditors' rights generally and to general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
SECTION 7.05. LITIGATION.
There are no actions, suits or proceedings pending or, to the
knowledge of the Servicer, threatened against or affecting the Servicer or any
Affiliate thereof, before or by any court, administrative agency, arbitrator or
governmental body with
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respect to any of the transactions contemplated by this Supplement, or which
will, if determined adversely to the Servicer or any such Affiliate, materially
and adversely affect the Servicer's ability to perform its obligations
hereunder. The Servicer is not in default with respect to any order of any
court, administrative agency, arbitrator or governmental body so as materially
and adversely to affect the transactions contemplated by this Supplement.
SECTION 7.06. REPRESENTATIONS TO AISLIC.
The Servicer has made no material misrepresentations to AISLIC
regarding any matter in the process of arranging for and negotiating the terms
of the Residual Value Insurance Policy.
ARTICLE EIGHT
CREATION OF 1997-A SUBI
SECTION 8.01. INITIAL CREATION OF 1997-A SUBI PORTFOLIO.
(a) Pursuant to Section 4.02 of the Origination Trust
Agreement and Section 11.01 of the 1997-A SUBI Supplement, the Origination
Trustee has been directed to cause to be identified and allocated on the books
and records of the Origination Trust an initial separate portfolio of SUBI
Assets consisting of Leases, related Leased Vehicles and other associated Trust
Assets, which Trust Assets shall meet the criteria specified therein. Pursuant
to Section 2.02(f) of the Servicing Agreement, the Origination Trustee, on
behalf of the Origination Trust, hereby directs that the Servicer so identify
and allocate such a separate portfolio of SUBI Assets consisting of Leases,
related Leased Vehicles and other associated Trust Assets from among all those
Leases, related Leased Vehicles and other associated Trust Assets owned by the
Origination Trustee, on behalf of the Origination Trust, and currently
accounted for as part of the Undivided Trust Interest.
(b) Pursuant to subsection (a) above and Section 2.02(f)
of the Servicing Agreement, the Servicer hereby identifies and allocates the
portfolio of Leases, related Leased Vehicles and other associated Trust Assets
(as described in clauses (i) through (ii) of the first sentence of Section
11.01(a) of the 1997-A SUBI Supplement) more particularly described on Exhibit
A hereto (which is in substantially the form of a Schedule of Leases and Leased
Vehicles), in order to create the initial 1997-A SUBI Portfolio.
(c) The Servicer hereby represents and warrants to the
Origination Trustee, on behalf of the Origination Trust, and to the
Securitization Trustee, on behalf of the Certificateholders,
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that (i) all 1997-A Leases as of the Initial Cutoff Date were Eligible Leases
as of the Initial Cutoff Date, (ii) no adverse selection procedures were
employed in selecting such 1997-A Leases, and (iii) it is not aware of any bias
in the selection of such 1997-A Leases that would cause the delinquencies or
losses therein to be worse than those of other Leases.
SECTION 8.02. SUBSEQUENT ADDITIONS TO 1997-A SUBI
PORTFOLIO.
(a) Pursuant to Section 11.02 of the 1997-A SUBI
Supplement, the Origination Trustee has been directed to cause to be identified
and allocated on the books and records of the Origination Trust on or before
each Transfer Date certain additional Eligible Leases, related Leased Vehicles
and other associated Trust Assets not then allocated, or reserved for
allocation to, any SUBI Portfolio, with an aggregate Discounted Principal
Balance determined as provided for in such Section. Pursuant to Section
2.02(f) of the Servicing Agreement, the Origination Trustee, on behalf of the
Origination Trust, hereby directs that the Servicer identify such additional
Eligible Leases, related Leased Vehicles and other associated Trust Assets (as
described in clauses (i) and (ii) of the first sentence of Section 11.01(a) of
the 1997-A SUBI Supplement and as meet the other requirements set forth in
Section 11.02 thereof) on or before each Transfer Date, and cause such Leases
and Leased Vehicles to be specifically identified on the revised Schedule of
Leases and Leased Vehicles to be delivered pursuant to Section 10.01(b) hereof.
On each such Transfer Date, but effective as of the related Subsequent Cutoff
Date, such additional Eligible Leases, Leased Vehicles and other associated
Trust Assets shall be added to the 1997-A SUBI Portfolio as additional 1997-A
SUBI Assets.
(b) The Servicer shall give one Business Day's prior
notice to the Trustee of each Transfer Date. On each Transfer Date, prior to
the reallocation described in the last sentence of subparagraph (a), the
Servicer also shall provide to the Origination Trustee, on behalf of the
Origination Trust, an Officer's Certificate certifying that (i) all 1997-A
Leases added to the 1997-A SUBI Portfolio on that date were Eligible Leases as
of the relevant Subsequent Cutoff Date, (ii) no adverse selection procedures
were employed in selecting such 1997-A Leases, (iii) it is not aware of any
bias in the selection of such 1997-A Leases that would cause the delinquencies
or losses thereof to be worse than other Leases, other than the fact that such
1997-A Leases were selected from all Eligible Leases not then allocated to any
SUBI Portfolio or reserved for allocation to another SUBI Portfolio on a
"first-in, first-out" basis, based on the date of origination (other than as
provided in Section 11.08 of the 1997-A SUBI Supplement) and (iv) unless the
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Origination Trustee receives confirmation (written or oral) from each Rating
Agency to the effect that the use of different criteria would not result in the
qualification, reduction or withdrawal of its then current rating on any Rated
Certificates, after giving effect to such reallocation (A) each such 1997-A
Lease will be allocated to the 1997-A SUBI Portfolio based upon its Discounted
Principal Balance as of the relevant Subsequent Cutoff Date, (B) the weighted
average remaining term of all 1997-A Leases will be not greater than 38 months,
and (C) the weighted average Booked Residual Value of all 1997-A Leases, as a
percentage of the aggregate Outstanding Principal Balance of the 1997-A Leases,
will be not greater than 65%, based on the characteristics of each 1997-A Lease
as of its date of origination.
(c) Except in the circumstances set forth in Section
11.02(e) of the 1997-A SUBI Supplement, on each Transfer Date, the Servicer
shall transfer from the 1997-A SUBI Collection Account to the Lease Funding
Account an amount equal to the aggregate Discounted Principal Balance as of the
relevant Subsequent Cutoff Date of the 1997-A Leases then being added to the
1997-A SUBI Portfolio pursuant to Section 11.02(a) of the 1997-A SUBI
Supplement.
(d) In the circumstances set forth in Section 11.02(e) of
the 1997-A SUBI Supplement, the Servicer shall transfer from the 1997-A SUBI
Collection Account to the 1997-A SUBI Lease Account the amounts specified in
such Section.
SECTION 8.03. SERVICER PAYMENT IN RESPECT OF CERTAIN
LEASES AND LEASED VEHICLES.
(a) The representation and warranty of the Servicer set
forth in Section 8.01(c), and the certifications of the Servicer pursuant to
Section 8.02(b)(i), with respect to each 1997-A Lease shall survive delivery of
the related Lease Documents to the Servicer and shall continue so long as such
1997-A Lease remains outstanding, or until the termination of the
Securitization Trust Agreement pursuant to Section 7.01 thereof, whichever
occurs earlier. Upon discovery by the Origination Trustee, the Securitization
Trustee or the Servicer that any such representation or warranty was incorrect
as of the time effective and materially and adversely affects such 1997-A
Lease, the party discovering such incorrectness shall give prompt written
notice to the others. Within 60 days of its discovery of such incorrectness or
notice to such effect to the Servicer, the Servicer shall cure in all material
respects the circumstances or condition in respect of which the representation
or warranty was incorrect as of the time effective. If the Servicer is unable
or unwilling to do so timely, it shall, as the sole remedy for such breach,
promptly (i) deposit (or cause to be deposited) into
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the 1997-A SUBI Collection Account an amount equal to the then Discounted
Principal Balance of such Lease as of the Deposit Date related to the
Collection Period in which the 60-day cure period ended, plus an amount equal
to the imputed interest, or lease charge, portion of any Monthly Lease Payments
with respect thereto at the related Lease Rate that was delinquent as of that
Collection Period, (ii) reallocate such Lease and the related Leased Vehicle
from the 1997-A SUBI Portfolio to the UTI Portfolio, and (iii) indemnify,
defend and hold harmless the holders of any 1997-A SUBI Certificate (including
without limitation the Securitization Trustee on behalf of the Securitization
Trust and the Certificateholders) and any subsequent servicer (if other than
the current Servicer) from and against, any and all loss or liability with
respect to or resulting from any such Lease or Leased Vehicle (including
without limitation the reasonable fees and expenses of counsel).
Notwithstanding the foregoing, if any reallocation described in clause (ii)
would cause the Transferor Interest to be equal to or less than zero, the
Servicer also shall deposit promptly into the 1997-A SUBI Collection Account an
amount so that the Transferor Interest will not be reduced to less than zero,
and the reallocation will not be made until such deposit has been made.
(b) In the event that the Servicer receives funds from a
Dealer required pursuant to such Dealer's obligation under a Dealer Agreement
with the Servicer to repurchase a misrepresented Lease or Leased Vehicle
included in the 1997-A SUBI Portfolio, the Servicer shall, within two Business
Days of receipt thereof, deposit such funds into the 1997-A SUBI Collection
Account, which deposit shall satisfy the Servicer's obligations pursuant to
Section 8.03(a)(i), and return to the repurchasing Dealer the Certificate of
Title and Lease with respect to such Leased Vehicle.
(c) The obligations of the Servicer pursuant to this
Section 8.03 shall survive any termination of the Servicer with respect to the
1997-A SUBI Portfolio under this Supplement or the Servicing Agreement.
SECTION 8.04. FILINGS.
The Servicer will undertake all other and future actions and
activities as may be reasonably necessary to perfect (or evidence) and confirm
the foregoing allocations of Trust Assets to the 1997-A SUBI Portfolio,
including without limitation filing or causing to be filed UCC financing
statements and executing and delivering all related filings, documents or
writings as may be reasonably necessary hereunder or under any other
Securitization Trust Documents (including the Backup Security Agreement),
whether on its own behalf or pursuant to the power of attorney granted by the
Grantor pursuant to Section
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11.04 of the 1997-A SUBI Supplement; provided, however, that in no event shall
the Servicer be required to take any action to perfect a security interest that
may be held by the Securitization Trustee in any 1997-A Leased Vehicle.
ARTICLE NINE
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING OF LEASES
IN 1997-A SUBI PORTFOLIO
SECTION 9.01. SERVICER BOUND BY SERVICING AGREEMENT.
(a) Except as otherwise specifically provided herein: (i)
the Servicer shall continue to be bound by all provisions of the Servicing
Agreement with respect to the Leases, Leased Vehicles and other associated
Trust Assets in the 1997-A SUBI Portfolio, including without limitation the
provisions of Article Two thereof relating to the administration and servicing
of Leases; and (ii) the provisions set forth herein shall operate either as
additions to or modifications of the already-extant obligations of the Servicer
under the Servicing Agreement, as the context may require. In the event of any
conflict between the provisions of this Supplement and the Servicing Agreement
with respect to the 1997-A SUBI, the provisions of this Supplement shall
prevail.
(b) For purposes of determining the Servicer's
obligations with respect to the servicing of the 1997-A SUBI Portfolio under
this Supplement (including without limitation pursuant to Article Two thereof),
general references in the Servicing Agreement to: (i) a SUBI Account shall be
deemed to refer more specifically to the 1997-A SUBI Account; (ii) a SUBI Asset
shall be deemed to refer more specifically to a 1997-A SUBI Asset; (iii) an
appropriate or applicable SUBI Collection Account shall be deemed to refer more
specifically to the 1997-A SUBI Collection Account; (iv) an appropriate or
applicable SUBI Lease Account shall be deemed to refer more specifically to a
1997-A SUBI Lease Account; (v) a SUBI Portfolio shall be deemed to refer more
specifically to the 1997-A SUBI Portfolio; (vi) a SUBI Servicing Agreement
Supplement shall be deemed to refer more specifically to this Supplement; and
(vii) a SUBI Supplement shall be deemed to refer more specifically to the
1997-A SUBI Supplement.
(c) Coincident with the execution and delivery of this
Supplement, the Servicer shall furnish the Securitization Trustee, on behalf of
the 1997-A Securitization Trust, with an Officer's Certificate listing the
officers of the Servicer currently involved in, or responsible for, the
administration and servicing of the Leases in the 1997-A SUBI Portfolio, which
list shall from time to time be updated by the Servicer.
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SECTION 9.02. COLLECTION OF MONTHLY LEASE PAYMENTS AND
REMITTANCES; APPLICATION OF PROCEEDS;
ACCOUNTS
(a) With reference to Section 2.02(b) of the Servicing
Agreement:
(i) the Servicer shall transfer into the 1997-A
SUBI Collection Account any Extension Fee that it may receive in connection
with the extension of a 1997-A Lease;
(ii) except as provided in clause (iii) below, the
extended Maturity Date of any 1997-A Lease may not occur later than the last
day of the Collection Period related to the Final Scheduled Distribution Date;
and
(iii) if the Servicer does extend the Maturity Date
of a Lease included in the 1997-A SUBI Portfolio by more than a total of five
times or by more than five months in the aggregate as described in Section
2.02(b) of the Servicing Agreement, or extends the Maturity Date so that the
extended Maturity Date will occur later than the last day of the Collection
Period relating to the Final Scheduled Maturity Date, then, as the sole remedy
therefor, the Servicer shall, on the Deposit Date related to the Collection
Period in which such extension was granted or on the Deposit Date relating to
the Collection Period in which the Servicer discovers or is notified that an
improper extension was granted, (y) deposit into the 1997-A SUBI Collection
Account an amount equal to the then Discounted Principal Balance of such Lease
plus an amount equal to the interest, or lease charge, portion of any Monthly
Lease Payments with respect thereto at the related Lease Rate that were
delinquent as of the end of that Collection Period, and (z) reallocate such
Lease and the related Leased Vehicle from the 1997-A SUBI Portfolio to the UTI
Portfolio. The obligations of the Servicer pursuant to this Section 9.02(a)
shall survive any termination of the Servicer's obligations with respect to the
1997-A SUBI Portfolio under this Supplement or the Servicing Agreement.
(b) With reference to Section 2.02(c) of the Servicing
Agreement, the Servicer shall, within one (1) Business Day after receipt,
deposit all proceeds of claims made under the Residual Value Insurance Policy
(as described in Section 9.10(b)) (i) for Insured Residual Value Loss Amounts
with respect to the Revolving Period, into the 1997-A SUBI Collection Account
for reinvestment in additional Eligible Leases, related Leased Vehicles and
other associated Trust Assets as provided in Section 8.02, and (ii) for Insured
Residual Value Loss Amounts with respect to the Amortization Period, into the
Distribution Account for
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distribution as provided in clause (ii) of Section 3.03(e) of the
Securitization Trust Agreement.
(c) With reference to Section 2.02(d) of the Servicing
Agreement, the Servicer shall treat all Repossessed Vehicle Proceeds and
Matured Leased Vehicle Proceeds in the manner provided for other Liquidation
Proceeds; provided, however, as set forth in Section 9.07, that the Servicer
may be reimbursed for related unreimbursed Repossessed Vehicle Expenses,
Matured Leased Vehicle Expenses, other Liquidation Expenses and Insurance
Expenses as provided in subsection (g).
(d) With reference to Section 2.04 of the Servicing
Agreement, the Servicer shall deposit into the 1997-A SUBI Collection Account
on or before each Deposit Date each Security Deposit that became Liquidation
Proceeds during the related Collection Period.
(e) The Servicer, on behalf of the Origination Trustee,
shall establish and maintain the 1997-A SUBI Collection Account in the
circumstances set forth in Section 12.01(a) of the 1997-A SUBI Supplement. The
Servicer, on behalf of the Origination Trustee, shall establish and maintain
the Residual Value Surplus Account in the circumstances set forth in Section
12.03(a) of the 1997-A SUBI Supplement. The Servicer shall establish and
maintain the Distribution Account in the circumstances set forth in Section
3.01 of the Securitization Trust Agreement. The Servicer shall establish and
maintain the Reserve Fund in the circumstances set forth in Section 3.04(a) of
the Securitization Trust Agreement.
(f) On each Determination Date the Servicer shall make
the calculations necessary to allow the distribution by the Origination Trustee
to holders of the 1997-A SUBI Certificates on the related Distribution Date in
accordance with Section 12.01(c) of the 1997-A SUBI Supplement. In connection
therewith, the Servicer shall determine the amount of Origination Trust
expenses and liabilities ("Origination Trust Expenses") incurred or suffered
during the preceding Collection Period and shall calculate the allocations of
such Origination Trust Expenses among the various Portfolios, including the
1997-A SUBI Portfolio, in good faith and so as not to disproportionately affect
any Portfolio, generally as provided for in Section 7.01(c) of the Trust
Agreement. On each Determination Date, the Servicer also shall make the
calculations necessary to allow the distributions to Certificateholders and
others on the related Distribution Date in accordance with Section 3.03 of the
Securitization Trust Agreement.
(g) On each Deposit Date, the Servicer shall (i) cause
the transfer from the 1997-A SUBI Collection Account to the
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Residual Value Surplus Account as provided in Section 12.01(b) of the 1997-A
SUBI Supplement or make the transfer from the Residual Value Surplus Account to
the 1997-A SUBI Collection Account as provided in Section 12.03(b) of the
1997-A SUBI Supplement, as appropriate, and (ii) cause the transfers from the
1997-A SUBI Collection Account in respect of the 1997-A SUBI Certificates to
the Distribution Account at the direction of the Transferor, as provided in
Section 3.02(a) of the Securitization Trust Agreement and Section 12.01(c) of
the 1997-A SUBI Supplement. On each Distribution Date, the Servicer shall make
the distributions from the Distribution Account and the Reserve Fund in respect
of the Certificates, as provided in Section 3.03 of the Securitization Trust
Agreement, including without limitation any redeposit of Undistributed
Transferor Excess Collections into the 1997-A SUBI Collection Account upon
receipt of appropriate instructions from the Transferor pursuant to Section
3.03(e) of the Securitization Trust Agreement.
(h) To the extent that during any Collection Period the
Servicer has incurred Matured Leased Vehicle Expenses as would result in Net
Matured Leased Vehicle Proceeds (for purposes hereof, calculated without
netting any Matured Leased Vehicle Expenses as are reimbursed pursuant to
subsection (b)), being less than 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, then on the related Deposit
Date, (w) the Servicer shall provide to the Origination Trustee and the
Securitization Trustee an Officer's Certificate setting forth the basis for its
determination of any such amount, and (x) the Origination Trustee shall
promptly transfer the amount of such Matured Leased Vehicle Expenses for the
related Collection Period from the Residual Value Surplus Account to the Lease
Funding Account (but only to the extent as would result in the Net Matured
Leased Vehicle Proceeds (but instead calculated fully in accordance with the
definition thereof) being no more than the sum of the Booked Residual Values of
all Matured Vehicles sold or otherwise disposed of from Matured Leased Vehicle
Inventory during that Collection Period). To the extent that during any
Collection Period: (i) the Servicer has incurred Matured Leased Vehicle
Expenses that may not be reimbursed from the Residual Value Surplus Account as
described above, whether because Net Matured Leased Vehicle Proceeds (again
calculated fully in accordance with the definition thereof) would be more than
the sum of the Booked Residual Values of all Matured Vehicles sold or otherwise
disposed of from Matured Leased Vehicle Inventory during that Collection Period
or because there are insufficient amounts available on deposit in the Residual
Value Surplus Account to reimburse the Servicer for any Matured Leased Vehicle
Expenses as would otherwise be reimbursable from the Residual Value Surplus
Account as provided above; (ii) the Servicer has incurred any Repossessed
Vehicle Expenses or other
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Liquidation Expenses or Insurance Expenses; (iii) any Monthly Lease Payments
arising from a Lease allocated to the 1997-A SUBI Portfolio are received by
the Origination Trustee or the Servicer with respect to any prior Collection
Period as to which the Servicer has outstanding an unreimbursed Advance; or
(iv) any amount of unreimbursed Advances are reasonably determined by the
Servicer to be Nonrecoverable Advances, then, on the related Deposit Date, (1)
the Servicer shall provide to the Origination Trustee and the Securitization
Trustee an Officer's Certificate setting forth the basis for its determination
of any such amount and (2) the Origination Trustee shall promptly transfer an
amount equal to the aggregate of such amounts from the 1997-A SUBI Collection
Account to the Lease Funding Account. Thereafter, the Origination Trustee
shall remit to the Servicer from the Lease Funding Account the total of such
amounts set forth in the first sentence above and clauses (i) through (v) of
the second sentence above, without interest (the "Servicer Reimbursement"). In
lieu of causing the Origination Trustee to transfer to the Lease Funding
Account and then remit to the Servicer all or part of any such Servicer
Reimbursement, upon providing an Officer's Certificate, the Servicer may deduct
from deposits otherwise to be made into the 1997-A SUBI Collection Account or
Residual Value Surplus Account, as applicable, an amount up to but not
exceeding the total of such amounts as are due and owing to the Servicer.
(i) The Servicer shall account to the Origination Trustee
and the Securitization Trustee with respect to the 1997-A SUBI Portfolio
separately from any other Portfolio.
(j) The Servicer shall direct the Origination Trustee's
or the Securitization Trustee's, as applicable, investments from time to time
of funds in the 1997-A SUBI Accounts, the Distribution Account and the Reserve
Fund, all as provided for in (and subject to the limitations of) Section
7.01(d) of the Trust Agreement, Sections 11.02(d), 12.01, 12.02 and 12.03 of
the 1997-A SUBI Supplement, and Sections 3.01(b) and 3.04(a) of the
Securitization Trust Agreement. The maximum permissible maturities of any such
investments pursuant to this clause on any date shall be not later than the
Business Day immediately preceding the Deposit Date (with regard to investment
of funds in 1997-A SUBI Accounts) or the Business Day immediately preceding the
Distribution Date (with regard to investment of funds in the Distribution
Account and the Reserve Fund) next succeeding the date of such investment,
except for (i) investments on which the Origination Trustee or Securitization
Trustee, respectively, is the obligor (including repurchase agreements on which
it, in its commercial capacity, is liable as principal), which may mature on
the Deposit Date or Distribution Date, respectively, and (ii) investments
during the Revolving Period of Principal Collections on deposit in the 1997-A
SUBI Collection Account, which may mature on such dates as
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specified by the Origination Trustee at the Servicer's direction so as to
maintain the availability of sufficient cash to make the payments described in
Sections 8.02(c) and (d) hereof.
(k) In the event the Servicer obtains confirmation
(written or oral) from each Rating Agency, and provides evidence of such
confirmation to the UTI Holder, the Origination Trustee and the Securitization
Trustee, to the effect that the utilization by the Servicer of an alternative
remittance schedule with respect to collections arising out of the 1997-A SUBI
Portfolio to be deposited in the 1997-A SUBI Collection Account pursuant to
Section 2.02(c) or (d) of the Servicing Agreement (including but not limited to
the use of an alternative remittance schedule pursuant to which the obligations
of the Servicer to make such remittances are secured by a Servicer Letter of
Credit satisfactory to each such Rating Agency) will not result in a
qualification, downgrading or withdrawal of the then-current rating assigned to
the Rated Certificates by such Rating Agency, (i) this Supplement may be so
modified without the consent of any Certificateholders pursuant to Section
12.02 of this Agreement and 9.01 of the Securitization Trust Agreement and (ii)
the Servicer may remit such collections to the 1997-A SUBI Collection Account
in accordance with that alternative remittance schedule.
(l) The Servicer may make remittances to the Distribution
Account net of certain other amounts, as and to the extent set forth in Section
3.05 of the Securitization Trust Agreement.
(m) The parties hereto acknowledge that the Origination
Trustee, on behalf of the Origination Trust, has made a complete transfer to
the Securitization Trustee of the initial proceeds of the 99.8% 1997-A SUBI
Certificate contained in the Distribution Account and the Reserve Fund and,
except as provided in this Supplement, the 1997-A SUBI Supplement and the
Securitization Trust Agreement, neither the Origination Trustee nor the
Servicer has any right to direct such funds to a third party or to receive such
funds.
(n) In the event of a sale, disposition or other
liquidation of the 99.8% 1997-A SUBI Certificate and the other property of the
Securitization Trust pursuant to Section 8.02 of the Securitization Trust
Agreement, the Servicer shall allocate the net proceeds thereof between
Principal Collections and Interest Collections as set forth in Section 8.01(b)
of the Securitization Trust Agreement.
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SECTION 9.03. RECORDS.
Upon the occurrence and during the continuance of a 1997-A
Event of Default hereunder, the Servicer shall, on demand of the Origination
Trustee, on behalf of the Origination Trust (either at the request of the
Securitization Trustee or, as provided in Section 11.01(b) hereof, upon demand
of Investor Certificateholders representing not less than 51% of the aggregate
Percentage Interest), deliver to the Origination Trustee all such data,
operating software and appropriate documentation necessary for the servicing of
the 1997-A Leases, including but not limited to the related Lease Documents and
Title Documents, all moneys collected by it and required to be deposited in any
1997-A SUBI Account on behalf of the Origination Trust, or in the Distribution
Account or the Reserve Fund on behalf of the Securitization Trust, all Security
Deposits with respect to 1997-A Leases, and any 1997-A Leased Vehicle in the
possession of the Servicer that has been repossessed or is part of Matured
Leased Vehicle Inventory and in either case has not yet been sold or otherwise
disposed of pursuant to Section 2.06 of the Servicing Agreement. Without
limitation of the foregoing, if the rights of the Servicer with respect to the
1997-A SUBI Portfolio shall have been terminated in accordance with Section
4.01(b) of the Servicing Agreement and Section 11.01(b) hereof or if this
Supplement shall have been terminated pursuant to Section 12.01 hereof, the
Servicer shall, upon demand of the Origination Trustee, on behalf of the
Origination Trust (either at the request of the Securitization Trustee, the
Investor Certificateholders representing not less than 51% of the aggregate
Percentage Interest, or otherwise), deliver to the Origination Trustee all such
data, operating software and appropriate documentation necessary for the
servicing of the 1997-A Leases and all moneys collected by it and required to
be deposited, as appropriate, in any 1997-A SUBI Account or the Distribution
Account or the Reserve Fund. In addition to delivering such data, operating
software and appropriate documentation and moneys, the Servicer shall use its
commercially reasonable efforts to effect the orderly and efficient transfer of
the servicing of the 1997-A Leases to the party that will be assuming
responsibility for such servicing, including, without limitation, directing
Obligors to remit payments in respect of those Leases to an account or address
designated by the Origination Trustee or such new servicer.
SECTION 9.04. ADVANCES.
(a) On or prior to each Deposit Date, the Servicer shall
make any Advance required by clause (i) of the definition thereof, and may make
any Advance permitted by clause (ii) of the definition thereof which the
Servicer chooses to make, into the 1997-A SUBI Collection Account.
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(b) Notwithstanding any other provision of this
Supplement, the Servicer shall not be obligated to make any Advance if and to
the extent that the Servicer shall have reasonably determined that any such
Advance, if made, would constitute a Nonrecoverable Advance. Any such
determination shall be evidenced by an Officer's Certificate of the Servicer
furnished to the UTI Holder, the Origination Trustee and the Securitization
Trustee setting out the basis for such determination, which determination shall
be conclusive and binding absent manifest error.
SECTION 9.05. PAYMENT OF CERTAIN FEES AND EXPENSES;
NO OFFSET.
(a) As part of its obligations hereunder, to the extent that
cash flows arising from the 1997-A SUBI Portfolio, as set forth in Section
3.03(b) of the Securitization Trust Agreement, are insufficient to provide for
the payment of all fees and expenses due to the Origination Trustee or the
Securitization Trustee as Capped Origination Trust Administrative Expenses,
Capped Securitization Trust Administrative Expenses or Uncapped Administrative
Expenses, the Servicer shall advance an amount equal to such excess fees and
expenses as they become payable from time to time and agrees to indemnify the
Origination Trustee and the Securitization Trustee and their respective agents
for such amounts. The Servicer shall be entitled to reimbursement of such
advances as set forth in Section 3.03(b) of the Securitization Trust Agreement.
The obligations of the Servicer pursuant to this Section 9.05(a) shall survive
any termination of the Servicer's rights and obligations with respect to the
1997-A SUBI Portfolio under this Supplement or the Servicing Agreement.
(b) Prior to the termination of the Servicer's rights and
obligations with respect to the 1997-A SUBI Portfolio and thereafter if such
termination results from a 1997-A Event of Default, the obligations of the
Servicer with respect to the 1997-A SUBI Portfolio shall not be subject to any
defense, counterclaim or right of offset that the Servicer has or may have
against any UTI Holder, the Origination Trustee on behalf of the Origination
Trust, any Special Purpose Affiliate or the Securitization Trustee, whether in
respect of this Supplement, the 1997-A SUBI Supplement, the Servicing
Agreement, any Securitization Trust Document, any 1997-A Lease, any related
Lease Document, any 1997-A Leased Vehicle or otherwise.
SECTION 9.06. SERVICING COMPENSATION.
(a) Notwithstanding anything to the contrary in Section 2.05
of the Servicing Agreement, (a) the Servicing Rate Portion with regard to the
1997-A SUBI Portfolio shall be
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calculated and (unless waived in accordance with Section 9.06(b) hereof) paid
on each Distribution Date based upon the Aggregate Net Investment Value as of
the first day of the related Collection Period, rather than based upon the
allocable portion of the Pool Balance, (b) the portion of the Servicing Fee
allocable to the 1997-A SUBI Portfolio shall be paid out of cash flows arising
from the 1997-A SUBI Portfolio as and to the extent set forth in Section
12.01(c) of the 1997-A SUBI Supplement and the definition of the term
"Collections" set forth in Section 10.01 thereof, (c) no Extension Fee with
respect to a Lease included in the 1997-A SUBI Portfolio shall constitute part
of the Servicing Fee, and (d) the Servicer may be reimbursed for advancing
certain Administrative Expenses as provided in Section 9.05(a). Further, as
additional servicing compensation with regard to the 1997-A SUBI Portfolio, the
Servicer also shall receive income on investment of funds in the Reserve Fund
if and to the extent that the balance therein is greater than the Reserve Fund
Cash Requirement (and so long as the ERISA Compliance Test is satisfied) as and
to the extent provided in Section 3.04(b) of the Securitization Trust
Agreement.
(b) So long as World Omni Financial Corp. is the Servicer,
the Servicer may, by notice to the Origination Trustee and the Securitization
Trustee on or prior to any Determination Date, waive its Servicing Fee with
respect to the related Collection Period, so long as the Servicer believes that
sufficient collections will be available from Interest Collections on one or
more future Distribution Dates (other than from amounts on deposit in the
Reserve Fund) to pay such waived Servicing Fee, without interest. If the
Servicer so waives such Servicing Fee, the Servicing Fee with respect to such
Collection Period shall be deemed to be zero for all purposes, provided,
however, that for purposes of clause (c) of the definition of "Interest
Collections" in the 1997-A SUBI Supplement and Section 3.03 of the
Securitization Trust Agreement, any such waived Servicing Fee thereafter shall
be treated as an unpaid Servicing Fee with respect to a prior Collection Period
(unless the Servicer continues to waive such Servicing Fee).
SECTION 9.07. REPOSSESSION AND SALE OF LEASED VEHICLES.
Notwithstanding Section 2.06 of the Servicing Agreement, the
Servicer need not deduct from Repossessed Vehicle Proceeds, Matured Leased
Vehicle Proceeds or other Liquidation Proceeds or Insurance Proceeds with
respect to any particular 1997-A Leased Vehicle all related unreimbursed
Repossessed Vehicle Expenses, Matured Leased Vehicle Expenses or other
Liquidation Expenses or Insurance Expenses prior to transferring such funds out
of its operating account. Such expenses may instead be reimbursed as provided
in Section 9.02(g).
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SECTION 9.08. INDEMNIFICATION BY SERVICER.
The Servicer agrees to indemnify, defend and hold harmless the
Securitization Trustee and its agents for any and all liabilities, losses,
damages and expenses (including without limitation reasonable fees and expenses
of counsel) that may be incurred by the Securitization Trustee or its agents as
a result of any act or omission by the Servicer in connection with its
maintenance and custody of the Lease Documents, Title Documents, and Lease
Records with respect to 1997-A Leases and 1997-A Leased Vehicles, the servicing
of the 1997-A Leases, the Servicer's undertakings in clause (e) of Section 2.07
of the Servicing Agreement or any other activity undertaken or omitted by the
Servicer with respect to any Trust Asset included in the 1997-A SUBI Portfolio.
The obligations set forth in this Section 9.08 shall survive the termination of
this Supplement or the resignation or removal of the Servicer (generally or
with respect to the 1997-A SUBI Portfolio) or the Securitization Trustee.
SECTION 9.09. THIRD PARTY CLAIMS.
The Servicer shall immediately notify the Securitization
Trustee and any other holder of any 1997-A SUBI Certificate upon its learning
that a claim of whatever kind that would have a material adverse impact on any
UTI Holder, the Transferor, the Origination Trustee, the Origination Trust, the
Securitization Trust, the Securitization Trustee, any 1997-A SUBI Asset or the
Servicer is being made by a third party with respect to any Lease or Leased
Vehicle (whether or not included in the 1997-A SUBI Portfolio) or the servicing
thereof or with respect to any other Trust Asset (whether or not constituting a
1997-A SUBI Asset).
SECTION 9.10. INSURANCE POLICIES.
(a) So long as any 1997-A SUBI Certificates are outstanding,
the Servicer will maintain and pay when due all premiums with respect to, and
the Servicer may not terminate or cause the termination of, or permit any other
insured party to terminate or cause the termination of the following: (i) each
Contingent and Excess Liability Insurance Policy, all premiums with respect to
which shall constitute Administrative Expenses, unless (A) a replacement
insurance policy or policies is obtained providing coverage against third party
claims that may be raised against the Origination Trustee, on behalf of the
Origination Trust, with respect to any Leased Vehicle included in the 1997-A
SUBI Portfolio in an amount at least equal to $10 million per claim, not
subject, to this extent, to any annual or aggregate cap (which policy or
policies may be a blanket insurance policy or policies covering the Servicer
and one or more of its
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Affiliates), and (B) either each Rating Agency has confirmed (orally or in
writing) to the Securitization Trustee to the effect that the obtaining of any
such replacement insurance policy or policies, in and of itself, will not cause
its then-current rating of any of the Rated Certificates to be qualified,
reduced or withdrawn, or alternatively (with respect to Moody's only, so long
as Xxxxx'x is a Rating Agency) such replacement policy is issued by a carrier
with a claims paying ability rating of A-2 or better; or (ii) the Residual
Value Insurance Policy, all premiums with respect to which shall be an expense
of the Servicer, unless the Servicer complies with clause (ii) or (iii) of
Section 8.01(l) of the Securitization Trust Agreement. Further, the Servicer
shall provide each Rating Agency prior notice of the content of any proposed
amendment, modification or waiver of the terms of the Residual Value Insurance
Policy, whether or not such action requires the approval of any Rating Agency.
On or before December 31 of each year, the Servicer shall provide to the
Origination Trustee one or more insurance certificates certifying that each of
the particular policies it is required to maintain pursuant to this Section
9.10 remains in full force and effect. The obligations of the Servicer
pursuant to this Section 9.10 shall survive any termination of the Servicer's
obligations with respect to the 1997-A SUBI Portfolio under this Supplement or
the Servicing Agreement.
(b) On or prior to each Residual Value Loss Determination
Date, the Servicer shall determine the Insured Residual Value Loss Amount for
the related Collection Period, if any, and shall make a claim under the
Residual Value Insurance Policy for any such Insured Residual Value Loss
Amount. The proceeds of such claim shall be deposited as set forth in Section
2.02(c) hereof for application as set forth in clause (ii) of Section 3.03(e)
of the Securitization Trust Agreement.
(c) Once established, the Servicer shall not change the
insured residual value of any 1997-A Leased Vehicle under the Residual Value
Insurance Policy except in accordance with its customary and usual procedures.
SECTION 9.11. SERVICER NOT TO RESIGN; ASSIGNMENT.
(a) If the Servicer resigns in the circumstances contemplated
by Section 2.10(a) of the Servicing Agreement, in addition to the requirements
set forth therein, the Opinion of Counsel required thereby also shall be
reasonably satisfactory to the Securitization Trustee. Any servicing agreement
entered into by a new servicer pursuant to that Section 2.10(a) also must
contain substantially the same provisions as this Supplement. The
Securitization Trustee shall not unreasonably fail to consent to a servicing
agreement with a new servicer that proposes to enter into a servicing agreement
that meets the standards
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required by Section 2.10 of the Servicing Agreement and this Supplement. No
such resignation shall affect the obligation of the Servicer to remit moneys to
the 1997-A SUBI Collection Account (in lieu of unrecoverable insurance
proceeds) as set forth in Section 2.11 of the Servicing Agreement and Section
9.11 hereof, or the obligations of the Servicer pursuant to Section 8.03(c)
hereof, Section 2.07(g) of the Servicing Agreement or Section 9.07 hereof,
Section 9.02(a) hereof (as to any 1997-A Lease the Maturity Date of which has
been extended beyond the specified limit by the Servicer), Section 9.05(a)
hereof, or Section 9.09 hereof; no successor Servicer shall be required to
undertake any of the foregoing, other than the obligation set forth in Section
9.05(a) (which shall remain a joint and several obligation of the initial
Servicer and any successor Servicer). The Origination Trustee shall give
prompt notice to each Rating Agency of any such resignation of the Servicer,
and the Origination Trustee and Securitization Trustee must obtain from each
Rating Agency a letter approving each substitute servicer.
(b) The Servicer may not assign this Supplement or any of its
rights, powers, duties or obligations hereunder except in connection with an
assignment of the Servicing Agreement as permitted thereby.
(c) Except as provided in paragraphs (a) and (b) above, the
duties and obligations of the Servicer under this Supplement shall continue
until they shall have been terminated as provided in Section 12.01 hereof or in
the Servicing Agreement and shall survive the exercise by the Origination
Trustee, on behalf of the Origination Trust, of any right or remedy under this
Supplement or the Servicing Agreement or the enforcement by the Origination
Trustee, on behalf of the Origination Trust, of any provision of the
Origination Trust Documents.
SECTION 9.12. OBLIGOR INSURANCE COVERAGE IN RESPECT OF
LEASED VEHICLES.
With reference to Section 2.11 of the Servicing Agreement,
except as provided in Section 9.02 hereof, the required deposits of insurance
proceeds with respect to 1997-A Leased Vehicles into the 1997-A SUBI Collection
Account shall be made within two Business Days after receipt thereof.
SECTION 9.13. CORPORATE EXISTENCE; STATUS; MERGER.
(a) With reference to Section 2.13(a) of the Servicing
Agreement, the Servicer also will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of, or to permit the
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Servicer to perform its obligations under, this Supplement, the Servicing
Agreement and the Securitization Trust Agreement.
(b) With reference to Section 2.13(b) of the Servicing
Agreement, whenever the consent of the Origination Trustee is required, so also
shall the consent of the Securitization Trustee be required, and whenever a
successor to the Servicer by merger or consolidation is required to execute and
deliver to the Origination Trustee an agreement in form and substance
reasonably satisfactory to the Origination Trustee as to the assumption by the
successor of the Servicer's obligations under the Servicing Agreement and the
other Origination Trust Documents, such agreement also must be reasonably
satisfactory to the Securitization Trustee and must contain a similar
assumption of the Servicer's obligations under this Supplement.
SECTION 9.14. MOBILE LEASED PREMISES.
The Servicer as "Lessor," hereby leases to the Transferor and
its general partner, World Omni Lease Securitization, Inc., each as "Lessee,"
and Lessee hereby hires and takes as tenant, for a rental of $100 per year for
Lessee, certain premises located at 0000 Xxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxx of
the minimum dimensions of five (5) feet by eleven (11) feet and surrounded on
at least three (3) sides by walls or moveable partitions (the "Mobile Leased
Premises"), to be used as the Alabama office of Lessee. The lease of the
Mobile Leased Premises to the Lessee pursuant to this Section 9.14 shall
continue throughout the term of this Supplement, except in the case of a change
in the Servicer's principal Alabama offices, in which case the lease of
functionally equivalent premises in the new location from time to time shall
continue throughout such term.
ARTICLE TEN
STATEMENTS AND REPORTS
SECTION 10.01. REPORTING BY THE SERVICER.
(a) The Servicer shall deliver to the Securitization Trustee
all reports and other documents required to be delivered to the Origination
Trustee pursuant to the Servicing Agreement (including Section 3.01 thereof)
concurrently with their delivery to the Origination Trustee.
(b) On or prior to each Determination Date and each Transfer
Date, the Servicer shall cause to be delivered to the Origination Trustee and
the Securitization Trustee a revised Schedule of Leases and Leased Vehicles,
containing data as of the last day of the prior Collection Period (in the case
of
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each Determination Date) or as of the related Subsequent Cutoff Date (in the
case of each Transfer Date), and which shall contain in addition to the data
required by the definition of the term "Schedule of Leases and Leased Vehicles"
an identification of all Leases and Leased Vehicles that are 1997-A Leases and
1997-A Leased Vehicles, the Discounted Principal Balance of each 1997-A Lease
and the related Cutoff Date for each 1997-A Lease, and on or prior to each
Determination Date, shall cause to be delivered to the Origination Trustee, the
Securitization Trustee and each Rating Agency a certificate in respect of such
Collection Period (the "Servicer's Certificate") substantially in the form
attached as Exhibit B (and setting forth such additional information as
requested by each Rating Agency from time to time which information the
Servicer is able to reasonably provide), containing all information necessary
to make the distributions required by Sections 9.02(f) hereof, 12.01(c) of the
1997-A SUBI Supplement and 3.03 of the Securitization Trust Agreement in
respect of the Collection Period immediately preceding such Determination Date.
On or prior to each Deposit Date, the Servicer shall cause to be delivered to
the Securitization Trustee the statement required by Section 3.06(a) of the
Securitization Trust Agreement. Within the time required by Section 3.06(b) of
the Securitization Trust Agreement, the Servicer shall cause to be delivered to
the Securitization Trustee the statements required by that Section. Any
Certificate Owner may obtain a copy of a Servicer's Certificate upon written
request.
SECTION 10.02. ANNUAL ACCOUNTANTS' REPORTS.
The annual report of the Independent Accountants of the
Servicer required by Section 3.02 of the Servicing Agreement, to the extent
that it refers to the Servicing Agreement, shall also specifically refer to the
Servicing Agreement as supplemented by this Supplement, and shall additionally
be delivered to the Securitization Trustee and each Rating Agency.
SECTION 10.03. OTHER CERTIFICATES AND NOTICES FROM SERVICER.
(a) The annual Officer's Certificate of the Servicer
required by Section 3.03 of the Servicing Agreement, to the extent that it
refers to the Servicing Agreement, shall also specifically refer to the
Servicing Agreement as supplemented by this Supplement, and shall additionally
be delivered to the Securitization Trustee and each Rating Agency.
(b) The Servicer shall deliver to the Securitization
Trustee, the Origination Trustee and each Rating Agency, promptly after having
obtained knowledge thereof, but in no event later than five Business Days
thereafter, an Officer's Certificate
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specifying the nature and status of any event which with the giving of notice
or lapse of time, or both, would become a 1997-A Event of Default.
(c) On or prior to each Determination Date, the Servicer
shall cause to be delivered to the Securitization Trustee and each Rating
Agency an Officer's Certificate stating that neither the Trust nor any of its
ERISA Affiliates: (i) maintains a Plan, which, as of its last valuation date,
has Unfunded Current Liability; (ii) anticipates that the value of the assets
of any Plan it maintains would not be sufficient to cover any Current
Liability; or (iii) is contemplating benefit improvements with respect to any
Plan then maintained by any such entity or the establishment of any new Plan,
either of which would cause any such entity to maintain a Plan with Unfunded
Current Liability.
SECTION 10.04. TAX RETURNS.
As contemplated by Section 6.12 of the Securitization Trust Agreement,
the Servicer shall direct the Securitization Trustee to prepare or cause to be
prepared, on behalf of the Transferor, any required federal tax information
returns (in a manner consistent with the treatment of the Investor Certificates
as indebtedness). Also as contemplated by Section 6.12 of the Securitization
Trust Agreement, the Servicer shall prepare or cause to be prepared any federal
and state tax returns that may be required with respect to the Securitization
Trust or the assets thereof and shall deliver any such returns to the
Securitization Trustee for signature at least five days prior to the date such
returns are required by law to be filed.
ARTICLE ELEVEN
DEFAULT
SECTION 11.01. EVENTS OF DEFAULT; TERMINATION OF SERVICER AS
TO 1997-A SUBI PORTFOLIO.
(a) Any of the following acts or occurrences shall constitute
a 1997-A Event of Default under the Servicing Agreement, as supplemented by
this Supplement:
(i) The Servicer shall have failed to deliver to the
Origination Trustee for distribution to or for the account of the
holders of 1997-A SUBI Certificates or to the Securitization Trustee
for distribution to the Investor Certificateholders any amounts
required to be so distributed pursuant to the Servicing Agreement or
this Supplement, which failure continues for five Business Days after
discovery of such failure by an officer of the Servicer or receipt by
the Servicer of written notice thereof from the
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Origination Trustee, the Securitization Trustee or Investor
Certificateholders representing not less than 25% of the aggregate
Percentage Interests;
(ii) The Origination Trustee or the Securitization
Trustee shall not have received any report relating to the 1997-A SUBI
Portfolio and required to be delivered to it pursuant to the Servicing
Agreement or this Supplement within ten Business Days after the date
any such report is due;
(iii) The Servicer shall default in the due
performance and observance of any other provision of the Servicing
Agreement or this Supplement with regard to the 1997-A SUBI Portfolio,
which default materially and adversely affects the rights of holders
of 1997-A SUBI Certificates or the Investor Certificateholders, and
such default shall have continued for a period of 60 days after
written notice thereof shall have been given to the Servicer by the
Origination Trustee, the Securitization Trustee or by Investor
Certificateholders representing not less than 25% of the aggregate
Percentage Interests;
(iv) The Event of Default set forth in Section
4.01(a)(iv) of the Servicing Agreement;
(v) The Event of Default set forth in Section
4.01(a)(v) of the Servicing Agreement;
(vi) Any representation, warranty or statement of
the Servicer made in the Servicing Agreement or this Supplement
relating to the 1997-A SUBI Portfolio or any certificate, report or
other writing delivered pursuant hereto or thereto relating to the
1997-A SUBI Portfolio shall prove to be incorrect in any material
respect as of the time when the same shall have been made and, within
30 days after written notice thereof shall have been given to the
Servicer by the Origination Trustee, the Securitization Trustee or
Investor Certificateholders representing not less than 25% of the
aggregate Percentage Interests, the circumstance or condition in
respect of which such representation, warranty or statement was
incorrect shall not have been eliminated or otherwise cured;
(vii) The Servicer shall have failed to make an
Advance (other than any Nonrecoverable Advance) at the time and in the
amount required by Section 9.04(a) hereof, which failure continues for
five Business Days after discovery of such failure by an officer of
the Servicer or receipt by the Servicer of written notice thereof from
the Origination
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Trustee, the Securitization Trustee or Investor Certificateholders
representing not less than 25% of the aggregate Percentage Interests;
(viii) The Servicer shall have failed to pay promptly
any Insurance Proceeds pursuant to Section 9.12 hereof and Section
2.11 of the Servicing Agreement at the time such moneys would
otherwise be recoverable under the comprehensive, collision, public
liability and property damage policy required to be maintained by an
Obligor under the related Lease, which failure continues for five
Business Days after discovery of such failure by an officer of the
Servicer or receipt by the Servicer of written notice thereof from the
Origination Trustee, the Securitization Trustee or Investor
Certificateholders representing not less than 25% of the aggregate
Percentage Interests;
(ix) The Servicer shall have failed to perform its
obligations under Section 9.10(a) hereof with respect to the
Contingent and Excess Liability Insurance Policies or the Residual
Value Insurance Policy; or
(x) The Transferor shall have failed to timely
perform its obligations under Section 3.04(b) of the Securitization
Trust Agreement with regard to the deposit into the Reserve Fund of
an amount equal to the AISLIC Reserve Fund Supplemental Requirement in
the event of an AISLIC Trigger Event.
Notwithstanding the foregoing, a delay or failure in the performance
referred to under clause (i), (vii) or (viii) above for a period of ten
Business Days, or referred to in clause (ii) above for a period of 20 Business
Days, or referred to in clause (iii) for a period of 90 days, or referred to in
clause (vi) for a period of 60 days, shall not constitute a 1997-A Event of
Default if arising from a Force Majeure. Upon the occurrence of a Force
Majeure, the Servicer shall not be relieved from using all commercially
reasonable efforts to perform its obligations in a timely manner, and the
Servicer shall provide to the Trustee, the Origination Trustee, the Transferor
and the Investor Certificateholders prompt notice of such failure or delay,
together with a description of its efforts to perform its obligations.
(b) Notwithstanding anything to the contrary in the Servicing
Agreement, the rights and powers of the Servicer may not be terminated with
regard to the 1997-A SUBI Portfolio absent a 1997-A Event of Default, as
further set forth below. The consequences of a 1997-A Event of Default shall
be as set forth in Section 4.01(b) of the Servicing Agreement with respect to
an Event of Default, as modified by this Section 11.01(b). For
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those purposes, references in Section 4.01(b) of the Servicing Agreement, to an
Event of Default shall mean a 1997-A Event of Default. Further, in the case of
the 1997-A SUBI, references to "the holder of the requisite percentage of any
SUBI" shall refer either to the Securitization Trustee, or to Investor
Certificateholders representing not less than 51% of the aggregate Percentage
Interests. If a 1997-A Event of Default shall have occurred and be continuing,
the Origination Trustee, on behalf of the Origination Trust, upon the direction
of the Securitization Trustee or Investor Certificateholders representing not
less than 51% of the aggregate Percentage Interests, shall, by notice given to
the Servicer, terminate the portion of the rights and powers of the Servicer
under the Servicing Agreement, as supplemented by this Supplement, with respect
to the 1997-A SUBI Portfolio. Upon the giving of any such notice described in
the preceding sentence or in Section 4.01(b) of the Servicing Agreement, all
rights, powers, duties and responsibilities of the Servicer under the Servicing
Agreement, as supplemented by this Supplement with respect to the 1997-A SUBI
Portfolio, whether with respect to the related Lease Documents, the related
Title Documents or Lease Records, the 1997-A SUBI Collection Account, the
Distribution Account, any 1997-A Lease Funding Account, the Reserve Fund, the
Residual Value Surplus Account, the Servicing Fee or otherwise, but excluding
the obligations set forth below as being retained by the Servicer, shall vest
in and be assumed by the Trust Agent or, if the Trust Agent declines to act as
successor servicer as permitted below, a new servicer as provided in Section
4.01(b) of the Servicing Agreement, and each of the Trust Agent and the
Origination Trustee is each hereby irrevocably authorized and empowered to
execute and deliver, on behalf of the Servicer, as attorney-in-fact or
otherwise, all documents and other instruments (including any notices to
Obligors deemed necessary or advisable by the Trust Agent or Origination
Trustee), and to do or accomplish all other acts or things necessary or
appropriate to effect such vesting and assumption, including, without
limitation, directing the Obligors to remit Monthly Contract Payments,
Prepayments and all other payments on or in respect of the 1997-A Leases and
the 1997-A Leased Vehicles to an account or address designated by the Trust
Agent or such new servicer. Further, in such event, the Servicer shall use
commercially reasonable efforts to effect the orderly and efficient transfer of
the servicing of the 1997-A Leases to the Trust Agent or new servicer, and as
promptly as practicable, the Servicer shall provide to the Trust Agent or new
servicer, as the case may be, a current computer tape containing all
information from the Lease Records required for the proper servicing of the
1997-A Leases, together with documentation containing any and all information
necessary for use of the tape. The Trust Agent may resign or decline to serve
as the Servicer of the 1997-A SUBI Portfolio by giving written notice of such
resignation or
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declination to the Origination Trustee and the Securitization Trustee and in
such event will be released from such duties and obligations, such resignation
or declination and such release not to be effective until the date a new
servicer enters into a servicing agreement with the Origination Trustee as
provided in Section 4.01(b) of the Servicing Agreement and the Origination
Trustee and Securitization Trustee receive from each Rating Agency a letter
approving such substitute servicer. Upon delivery of any such notice to the
Origination Trustee, the Origination Trustee shall use its commercially
reasonable efforts, upon not less than 30 days' prior written notice to the
Securitization Trustee and the Investor Certificateholders, to obtain a new
servicer for the 1997-A SUBI Portfolio, which shall be an Eligible Servicer,
and which shall enter into a servicing agreement with the Origination Trustee
as provided in Section 4.01(b) of the Servicing Agreement. If, within 30 days
after the delivery of the notice to the Origination Trustee and the
Securitization Trustee referred to above, the Origination Trustee shall not
have obtained such a new servicer for the 1997-A SUBI Portfolio, the
Securitization Trustee may appoint, or may petition a court of competent
jurisdiction to appoint, a successor servicer to service the 1997-A Leases.
No termination of the Servicer as to the 1997-A SUBI Portfolio
shall affect the obligations of the Servicer pursuant to Section 2.01(b)(i) of
the Servicing Agreement, Section 2.11 of the Servicing Agreement or Section
9.10 hereof, Section 2.07(g) of the Servicing Agreement or Section 9.08 hereof,
Section 8.03 hereof, Section 9.02(a) hereof (as to any 1997-A Lease the
Maturity Date of which has been extended beyond the specified limit by the
Servicer), or Section 9.01(a) hereof.
The Origination Trustee shall give prompt notice to each
Rating Agency of any termination of the Servicer affecting the 1997-A SUBI
Portfolio pursuant to this Section 11.01(b) or pursuant to Section 4.01(b) of
the Servicing Agreement.
SECTION 11.02. NO EFFECT ON OTHER PARTIES.
Upon any termination of the rights and powers of the Servicer
with respect to the 1997-A SUBI Portfolio from time to time pursuant to Section
11.01 hereof or Section 4.01 of the Servicing Agreement, or upon any
appointment of a successor to the Servicer with respect to the 1997-A SUBI
Portfolio, all the rights, powers, duties and obligations of the Origination
Trustee, the UTI Holder and the Transferor under this Agreement, the
Securitization Trust Agreement, the 1997-A SUBI Supplement, or any other
Origination Trust Document shall remain unaffected by such termination or
appointment and shall remain in full force and effect thereafter, except as
otherwise expressly provided herein or therein.
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ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TERMINATION OF AGREEMENT.
(a) In connection with any purchase by the Transferor of
the Investor Certificateholders' interest in the corpus of the Securitization
Trust pursuant to Section 7.02 of the Securitization Trust Agreement, and the
Transferor's then succeeding to all of the interest in the 1997-A SUBI
represented by the 1997-A SUBI Certificates, and if the UTI Holder shall
thereafter succeed to such interest in the 1997-A SUBI, the Servicer, upon the
direction of the UTI Holder as provided in Section 11.05 of the 1997-A SUBI
Supplement, shall reallocate all 1997-A Leases, 1997-A Leased Vehicles and
related 1997-A SUBI Assets to the UTI Portfolio.
(b) Except as provided in this Section 12.01, the
respective duties and obligations of the Servicer and the Origination Trustee
with respect to the 1997-A SUBI Portfolio created by the Servicing Agreement
and this Supplement shall terminate upon the termination of the Securitization
Trust Agreement pursuant to Section 7.01 thereof or upon the earlier
termination of the Servicing Agreement pursuant to Section 5.01 thereof. Upon
such a termination, the Servicer shall pay over to the Origination Trustee or
any other Person entitled thereto all moneys held by the Servicer with respect
to the 1997-A SUBI Portfolio pursuant to the Servicing Agreement and this
Supplement.
SECTION 12.02. AMENDMENT.
(a) Notwithstanding Section 5.02(a) of the Servicing
Agreement, the Servicing Agreement, as supplemented by this Supplement, to the
extent that it deals with the 1997-A SUBI Portfolio, may be amended from time
to time in a writing signed by the Origination Trustee, on behalf of the
Origination Trust, the Trust Agent (but only to the extent that such amendment
deals with Section 11.01(b)) and the Servicer, with the prior written consent
of the Securitization Trustee, which shall be given only in the circumstances
contemplated by Section 9.01 of the Securitization Trust Agreement.
(b) The Servicer shall provide each Rating Agency prior
notice of the content of any proposed amendment to the Servicing Agreement,
whether or not such amendment relates to the 1997-A SUBI or requires approval
of any Rating Agency.
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SECTION 12.03. GOVERNING LAW.
THIS SUPPLEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO
ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICT OF LAWS.
SECTION 12.04. NOTICES.
The notice provisions of Section 5.04 of the Servicing
Agreement shall apply equally to this Supplement, provided that any notice to
the Securitization Trustee shall be addressed as follows:
First Bank National Association
One Illinois Center
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Office
SECTION 12.05. SEVERABILITY.
If one or more of the provisions of this Supplement shall be
for any reason whatever held invalid or unenforceable, such provisions shall be
deemed severable from the remaining covenants, agreements and provisions of
this Supplement, and such invalidity or unenforceability shall in no way affect
the validity or enforceability of such remaining covenants, agreements and
provisions, or the rights of any parties hereto. To the extent permitted by
law, the parties hereto waive any provision of law that renders any provision
of this Supplement invalid or unenforceable in any respect.
SECTION 12.06. INSPECTION AND AUDIT RIGHTS.
The Servicer agrees to afford the same inspection and audit
rights to any representative or designee of the Securitization Trustee as
granted to any representative or designee of the Origination Trustee pursuant
to Section 5.06 of the Servicing Agreement, but only with respect to the books
of account, records, reports and other papers of the Servicer relating to the
1997-A SUBI Portfolio.
SECTION 12.07. BINDING EFFECT.
The provisions of the Servicing Agreement and this Supplement,
insofar as they relate to the 1997-A SUBI Portfolio, shall be binding upon and
inure to the benefit of the respective successors and permitted assigns of the
parties hereto, and shall inure to the benefit of the Origination Trustee, on
behalf of the Origination Trust, and the Securitization Trustee.
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SECTION 12.08. ARTICLE AND SECTION HEADINGS.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 12.09. EXECUTION IN COUNTERPARTS.
This Supplement may be executed in any number of counterparts,
each of which so executed and delivered shall be deemed to be an original, but
all of which counterparts shall together constitute but one and the same
instrument.
SECTION 12.10. RIGHTS CUMULATIVE.
All rights and remedies from time to time conferred upon or
reserved to the Origination Trustee, on behalf of the Origination Trust, the
Servicer or the Securitization Trustee or to any or all of the foregoing are
cumulative, and none is intended to be exclusive of another. No delay or
omission in insisting upon the strict observance or performance of any
provision of this Agreement, or in exercising any right or remedy, shall be
construed as a waiver or relinquishment of such provision, nor shall it impair
such right or remedy. Every right and remedy may be exercised from time to
time and as often as deemed expedient.
SECTION 12.11. FURTHER ASSURANCES.
Each party will do such acts, and execute and deliver to any
other party such additional documents or instruments as may be reasonably
requested in order to effect the purposes of this Supplement and to better
assure and confirm unto the requesting party its rights, powers and remedies
hereunder.
SECTION 12.12. THIRD-PARTY BENEFICIARIES.
The Servicing Agreement and this Supplement, insofar as they
relate to the 1997-A SUBI Portfolio, will inure to the benefit of and be
binding upon the parties hereto, and each of the holders of any legal or
beneficial interest in the 1997-A SUBI Certificates (including without
limitation the Securitization Trustee and the Certificateholders), who shall be
considered to be third-party beneficiaries hereof. Except as otherwise
provided in this Agreement, no other Person will have any right or obligation
hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers duly authorized as
of the day and year first above written.
WORLD OMNI FINANCIAL CORP.
By:
---------------------------------
A. Xxxxxx Xxxxx
Treasurer
VT INC., as
trustee of World Omni LT
By:
---------------------------------
Name:
--------------------------------
Title:
-------------------------------
WORLD OMNI LEASE SECURITIZATION L.P.
(solely for purposes of Section 9.14)
By: WORLD OMNI LEASE SECURITIZATION,
INC., its general partner
By:
---------------------------------
A. Xxxxxx Xxxxx
Treasurer
FIRST BANK NATIONAL ASSOCIATION, as
Trust Agent (solely for purposes of
Section 11.01(b))
By:
---------------------------------
Name
---------------------------------
Title:
------------------------------
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Acknowledged and Agreed:
FIRST BANK NATIONAL ASSOCIATION, as
Securitization Trustee
By:
-----------------------------------
Name:
---------------------------------
Title:
-------------------------------
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EXHIBIT A
SCHEDULE OF 1997-A LEASES AND
1997-A LEASED VEHICLES AS OF THE INITIAL CUTOFF DATE
[Omitted. Copies on file with the Servicer, the Trustee and
the Securitization Trustee.]
A-1
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EXHIBIT B
FORM OF SERVICER'S CERTIFICATE
B-1
