Exhibit 10.7
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VT INC.,
AS TRUSTEE OF
WORLD OMNI LT
AND
WORLD OMNI FINANCIAL CORP.
SUPPLEMENT 1998-A TO
SERVICING AGREEMENT
DATED AS OF OCTOBER 1, 1998
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TABLE OF CONTENTS
Page
RECITALS.......................................................................1
ARTICLE SIX....................................................................3
Section 6.01. Definitions...................................................3
ARTICLE SEVEN..................................................................5
Section 7.01. Organization and Standing.....................................5
Section 7.02. Authorization, Execution and Delivery; No Conflicts...........5
Section 7.03. Approvals.....................................................5
Section 7.04. Enforceability................................................6
Section 7.05. Litigation....................................................6
Section 7.06. Representations to the RV Insurer.............................6
ARTICLE EIGHT..................................................................6
Section 8.01. Initial Creation of 1998-A SUBI Portfolio.....................6
Section 8.02. Subsequent Additions to 1998-A SUBI Portfolio.................7
Section 8.03. Servicer Payment in Respect of Certain........................8
Section 8.04. Filings.......................................................8
ARTICLE NINE...................................................................9
Section 9.01. Servicer Bound by Servicing Agreement.........................9
Section 9.02. Collection of Monthly Lease Payments and Remittances;
Application of Proceeds; Accounts.............................9
Section 9.03. Records......................................................12
Section 9.04. Advances.....................................................13
Section 9.05. Payment of Certain Fees and Expenses; No Offset..............13
Section 9.06. Servicing Compensation.......................................13
Section 9.07. Repossession and Sale of Leased Vehicles.....................14
Section 9.08. Indemnification by Servicer..................................14
Section 9.09. Third Party Claims...........................................15
Section 9.10. Insurance Policies...........................................15
Section 9.11. Servicer Not to Resign; Assignment...........................16
Section 9.12. Obligor Insurance Coverage in Respect of.....................16
Section 9.13. Corporate Existence; Status; Merger..........................16
Section 9.14. Mobile Leased Premises.......................................17
Section 9.15. Servicer Administrative Duties under the
Transaction Documents........................................17
ARTICLE TEN...................................................................17
Section 10.01. Reporting by the Servicer....................................17
Section 10.02. Annual Accountants' Reports..................................18
Section 10.03. Other Certificates and Notices from Servicer.................18
Section 10.04. Tax Returns..................................................18
ARTICLE ELEVEN................................................................19
Section 11.01. Events of Default; Termination of............................19
Section 11.02. No Effect on Other Parties...................................21
ARTICLE TWELVE................................................................22
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Section 12.01. Termination of Agreement.....................................22
Section 12.02. Amendment....................................................22
Section 12.03. Governing Law................................................22
Section 12.04. Notices......................................................22
Section 12.05. Severability.................................................23
Section 12.06. Inspection and Audit Rights..................................23
Section 12.07. Binding Effect...............................................23
Section 12.08. Article and Section Headings.................................23
Section 12.09. Execution in Counterparts....................................23
Section 12.10. Rights Cumulative............................................23
Section 12.11. Further Assurances...........................................24
Section 12.12. Third-Party Beneficiaries....................................24
EXHIBITS
EXHIBIT A - Schedule of 1998-A Leases and 1998-A Leased Vehicles
as of the Initial Cutoff Date....................................A-1
EXHIBIT B - Form of Servicer's Certificate...................................B-1
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SUPPLEMENT 1998-A TO
SERVICING AGREEMENT
SUPPLEMENT 1998-A TO SERVICING AGREEMENT (the "Supplement"), dated as of
October 1, 1998, 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. ("ALF LP"), the Origination Trustee and, for
certain limited purposes set forth therein, U.S. Bank National Association
(formerly known as First Bank National Association and successor trustee to Bank
of America Illinois, an Illinois banking corporation) (together with its
successors, "U.S. Bank" and, in its capacity as Trust Agent as defined in the
Servicing Agreement (as defined herein), the "Trust Agent") 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 U.S. Bank, and that certain Amended and Restated Trust Agreement
dated as of June 1, 1994 among ALFI, ALF LP, the Origination Trustee and U.S.
Bank) as amended by that certain Amendment No. 1 to Second Amended and Restated
Trust Agreement dated as of November 1, 1994, among the same parties and as
amended by that certain Amendment No. 2 to Second Amended and Restated Trust
Agreement dated as of September 23, 1998, among the same parties (as so amended
and restated, and as it may be further amended, supplemented or modified, the
"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 ALF LP was formed and ALFI contributed to ALF LP
all of its right, title and interest in and to the Origination Trust.
B. On September 23, 1998, ALFI was merged with and into Auto Lease Finance,
LLC ("ALF LLC"), a Delaware single member limited liability company the sole
member of which is WOFCO, pursuant to that certain Assignment of General
Partnership Interest and Amendment to Amended and Restated Limited Partnership
Agreement of Auto Lease Finance L.P. dated as of September 23, 1998 among the
Servicer, ALFI and ALF LLC and that certain Certificate of Merger dated
September 23, 1998 filed by WOFCO with the Secretary of State for the State of
Delaware whereby ALF LLC succeeded to all of the rights and obligations of ALFI,
including but not limited to those as general partner of ALF LP, as reflected in
the Amended and Restated Certificate of Limited Partnership of ALF LP filed with
the Delaware Secretary of State as of September 23, 1998.
C. The parties hereto also have entered into that certain Second Amended
and Restated Servicing Agreement dated as of July 1, 1994 as amended by that
certain Amendment No. 1 to Second and Amended Restated Servicing Agreement dated
as of September 23, 1998, among the same parties (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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D. Concurrently herewith, and as contemplated by the Servicing Agreement
and the Origination Trust Agreement, ALF LP, the Origination Trustee, U.S. Bank
and World Omni Lease Securitization L.P. (the "Transferor") are entering into
that certain Supplement 1998-A to Trust Agreement dated as of October 1, 1998
(the "1998-A SUBI Supplement"), pursuant to which the Origination Trustee, on
behalf of the Origination Trust and at the direction of ALF LP, which also will
be at that time a beneficiary of the Origination Trust, will create and issue to
ALF LP a special unit of beneficial interest in the Origination Trust, or SUBI
(as defined in the Origination Trust Agreement) (such SUBI, the "1998-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 "1998-A SUBI Portfolio"), a SUBI
Certificate (as defined in the Origination Trust Agreement) representing a 100%
beneficial interest in the 1998-A SUBI (such SUBI Certificate, the "1998-A SUBI
Certificate"), all as set forth in the Origination Trust Agreement and the
1998-A SUBI Supplement.
E. Also concurrently herewith, ALF LP and the Transferor are entering into
that certain SUBI Certificate Purchase and Sale Agreement dated as of October 1,
1998, pursuant to which ALF LP is selling to the Transferor, without recourse,
all of ALF LP's right, title and interest in and to the 1998-A SUBI and the
1998-A SUBI Certificate, all moneys due thereon and paid thereon or in respect
thereof and the right to realize on any property that may be deemed to secure
the 1998-A SUBI, and all proceeds thereof, all in consideration of the cash
payment to ALF LP of an amount equal to the Aggregate Net Investment Value (as
defined in the Securitization Trust Agreement) of the 1998-A SUBI Portfolio as
of the Initial Cutoff Date (as defined in the 1998-A SUBI Supplement).
F. Also concurrently herewith, and as contemplated by the Servicing
Agreement and the Origination Trust Agreement, the Transferor, PNC Bank,
Delaware, as owner trustee (the "Owner Trustee") and The Bank of New York, as
indenture trustee (the "Indenture Trustee") are entering into that certain
Securitization Trust Agreement dated as of October 1, 1998 (the "Securitization
Trust Agreement") pursuant to which the 1998-A SUBI Certificate will be
transferred to the Owner Trustee, in that capacity and then pledged to the
Indenture Trustee, in that capacity, in connection with a Securitized Financing
(as defined in the Origination Trust Agreement) by the Transferor.
G. Also concurrently herewith, the Indenture Trustee and the Owner Trustee
are entering into that certain Indenture dated as of October 1, 1998 (the
"Indenture") pursuant to which, among other things, the Securitization Trust
will issue the Notes (as defined below) and the Securitization Trust will grant
a security interest to the Indenture Trustee with respect to all of the Trust
Estate.
H. The parties desire to supplement the terms of the Servicing Agreement
insofar as they apply to the 1998-A SUBI, the 1998-A SUBI Portfolio, and the
1998-A SUBI Certificate to provide for further specific servicing obligations
that will benefit the holders of the 1998-A SUBI Certificate 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 1998-A SUBI Portfolio:
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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 1998-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
1998-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 1998-A SUBI
Supplement, except that it shall refer to 1998-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 1998-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 "ALF LP " have the respective meanings set forth in Recital A.
"ALF LLC" has the meaning set forth in Recital B.
"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 1998-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.
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"Indenture" has the meaning set forth in Recital G.
"Indenture Trustee" has the meaning set forth in Recital F.
"1998-A SUBI" has the meaning set forth in Recital D.
"1998-A SUBI Account" means any SUBI Account related to the 1998-A SUBI.
"1998-A Servicer Event of Default" means any of the acts, events or
occurrences set forth in Section 11.01.
"1998-A SUBI Portfolio" has the meaning set forth in Recital D.
"1998-A SUBI Supplement" has the meaning set forth in Recital D.
"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(f).
"Origination Trustee" has the meaning set forth in the Preamble.
"Owner Trustee" has the meaning set forth in Recital F.
"Plan" means an "employee benefit plan," as such term is defined in Section
3(3) of ERISA.
"Prospectus" means that certain prospectus dated November [ ], 1998
relating to the public offering of the Class A Notes issued by the
Securitization Trust.
"Residual Value Loss Determination Date" means, with respect to a
Collection Period, the tenth day of the following month, or if that day is not a
Business Day, the next Business Day, or (with respect to the first Residual
Value Loss Determination Date) December 10, 1998.
"Securitization Trust" means the trust created by the Securitization Trust
Agreement.
"Securitization Trust Agreement" has the meaning set forth in Recital F.
"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
1998-A SUBI Assets to the 1998-A SUBI Collection Account.
"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).
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"Servicing Agreement" has the meaning set forth in Recital C.
"Supplement" has the meaning set forth in the Preamble.
"Transferor" has the meaning set forth in Recital D.
"Trust Agent" has the meaning set forth in Recital A.
"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.
"U.S. Bank" has the meaning set forth in Recital A.
ARTICLE SEVEN
REPRESENTATIONS AND WARRANTIES OF SERVICER
The Servicer represents and warrants to the Owner Trustee and Indenture
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.
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
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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 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 the RV Insurer.
The Servicer has made no material misrepresentations to the RV Insurer
regarding any matter in the process of arranging for and negotiating the terms
of the Residual Value Insurance Policy.
ARTICLE EIGHT
CREATION OF 1998-A SUBI
Section 8.01. Initial Creation of 1998-A SUBI Portfolio.
(a) Pursuant to Section 4.02 of the Origination Trust Agreement and Section
11.01 of the 1998-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 1998-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 1998-A SUBI Portfolio.
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(c) The Servicer hereby represents and warrants to the Origination Trustee,
on behalf of the Origination Trust, to the Owner Trustee, on behalf of the
Certificateholder, and to the Indenture Trustee, on behalf of the Noteholders,
that (i) all 1998-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 1998-A Leases, and (iii) it is not aware of any bias in the
selection of such 1998-A Leases that would cause the delinquencies or losses
therein to be worse than those of other Leases.
Section 8.02. Subsequent Additions to 1998-A SUBI Portfolio.
(a) Pursuant to Section 11.02 of the 1998-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 1998-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 1998-A SUBI Portfolio as
additional 1998-A SUBI Assets.
(b) The Servicer shall give one Business Day's prior notice to the
Indenture 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, and the Indenture Trustee, on behalf of the Noteholders, an Officer's
Certificate certifying that (i) all 1998-A Leases added to the 1998-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
1998-A Leases, (iii) it is not aware of any bias in the selection of such 1998-A
Leases that would cause the delinquencies or losses thereof to be worse than
other Leases, other than the fact that such 1998-A Leases were selected from all
Eligible Leases not then allocated to any SUBI Portfolio or reserved for
allocation to another SUBI Portfolio (as provided in Section 11.08 of the 1998-A
SUBI Supplement) and (iv) unless the Indenture 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 Notes, after giving effect to
such reallocation (A) each such 1998-A Lease will be allocated to the 1998-A
SUBI Portfolio based upon its Discounted Principal Balance as of the relevant
Subsequent Cutoff Date, (B) the weighted average remaining term of all 1998-A
Leases will be not greater than [38] months, and (C) the weighted average Booked
Residual Value of all 1998-A Leases, as a percentage of the aggregate
Outstanding Principal Balance of the 1998-A Leases, will be not greater than
[67]%, based on the characteristics of each 1998-A Lease as of its date of
origination.
(c) Except in the circumstances set forth in Section 11.02(e) of the 1998-A
SUBI Supplement, on each Transfer Date, the Servicer shall transfer from the
1998-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 1998-A Leases then being added to the 1998-A SUBI Portfolio pursuant
to Section 11.02(a) of the 1998-A SUBI Supplement.
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(d) In the circumstances set forth in Section 11.02(e) of the 1998-A SUBI
Supplement, the Servicer shall transfer from the 1998-A SUBI Collection Account
to the 1998-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 1998-A Lease shall survive delivery of the related Lease
Documents to the Servicer and shall continue so long as such 1998-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 Owner Trustee, the Indenture Trustee
or the Servicer that any such representation or warranty was incorrect as of the
time effective and materially and adversely affects such 1998-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 the 1998-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 1998-A SUBI Portfolio to the UTI Portfolio, and
(iii) indemnify, defend and hold harmless the holders of any 1998-A SUBI
Certificate (including without limitation the Owner Trustee on behalf of the
Certificateholder and the Indenture Trustee on behalf of the Noteholders) 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 1998-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 1998-A
SUBI Portfolio, the Servicer shall, within two Business Days of receipt thereof,
deposit such funds into the 1998-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 1998-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 1998-A SUBI Portfolio and the backup security
interest therein of the Indenture Trustee including without limitation filing or
causing to be filed UCC financing statements and executing
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and delivering all related filings, documents or writings as may be reasonably
necessary hereunder or under any other Securitization Trust Documents (including
the Indenture and the Backup Security Agreement), whether on its own behalf or
pursuant to the power of attorney granted by the Grantor pursuant to Section
11.04 of the 1998-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 Owner Trustee or the Indenture Trustee in any 1998-A Leased
Vehicle.
ARTICLE NINE
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING OF LEASES
IN 1998-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
1998-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 1998-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 1998-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 1998-A SUBI Account; (ii) a SUBI Asset shall be deemed to
refer more specifically to a 1998-A SUBI Asset; (iii) an appropriate or
applicable SUBI Collection Account shall be deemed to refer more specifically to
the 1998-A SUBI Collection Account; (iv) an appropriate or applicable SUBI Lease
Account shall be deemed to refer more specifically to a 1998-A SUBI Lease
Account; (v) a SUBI Portfolio shall be deemed to refer more specifically to the
1998-A SUBI Portfolio; (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 1998-A SUBI
Supplement.
(c) Coincident with the execution and delivery of this Supplement, the
Servicer shall furnish the Indenture Trustee, on behalf of the Noteholders 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
1998-A SUBI Portfolio, which list shall from time to time be updated by the
Servicer.
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 1998-A SUBI Collection Account
any Extension Fee that it may receive in connection with the extension of a
1998-A Lease;
ii) except as provided in clause (iii) below, the extended Maturity
Date of any 1998-A Lease may not occur later than the last day of the Collection
Period related to the Final Scheduled Distribution Date; and
9
iii) if the Servicer does extend the Maturity Date of a Lease included
in the 1998-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 1998-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
1998-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 1998-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 1998-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 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 1998-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 in the name of the Indenture Trustee the 1998-A SUBI Collection Account
as set forth in Section 12.01(a) of the 1998-A SUBI Supplement. The Servicer, on
behalf of the Owner Trustee, shall establish and maintain the Distribution
Account, in the name of the Indenture Trustee, as set forth in Section 3.01 of
the Securitization Trust Agreement. The Servicer, on behalf of the Owner
Trustee, shall establish and maintain the Reserve Fund, in the name of the
Indenture Trustee, as 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 Indenture Trustee to the holder of
the 1998-A SUBI Certificate on the related Distribution Date in accordance with
Section 12.01(c) of the 1998-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 1998-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 Origination Trust
Agreement. On each Determination Date, the Servicer also shall make the
calculations
10
necessary to allow the distributions to Noteholders 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 cause the transfer from the
1998-A SUBI Collection Account in respect of the 1998-A SUBI Certificate 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 1998-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 Notes, as provided in Section 3.03 of the Securitization Trust
Agreement, including without limitation any redeposit of Undistributed
Transferor Excess Collections into the 1998-A SUBI Collection Account upon
receipt of appropriate instructions from the Transferor pursuant to Section
3.03(c) of the Securitization Trust Agreement.
(h) To the extent that during any Collection Period: (i) the Servicer has
incurred Matured Leased Vehicle Expenses; (ii) the Servicer has incurred any
Repossessed Vehicle Expenses or other Liquidation Expenses or Insurance
Expenses; (iii) any Monthly Lease Payments arising from a Lease allocated to the
1998-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 Indenture Trustee an Officer's Certificate setting forth the
basis for its determination of any such amount and (2) the Indenture Trustee
shall promptly transfer an amount equal to the aggregate of such amounts from
the 1998-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 (iv) of the second sentence above, without interest (the "Servicer
Reimbursement"). In lieu of causing the Indenture 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 1998-A SUBI Collection
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, the Indenture
Trustee and the Owner Trustee with respect to the 1998-A SUBI Portfolio
separately from any other Portfolio.
(j) The Servicer shall direct the Indenture Trustee's investments from time
to time of funds in the 1998-A SUBI Accounts, the Distribution Account and the
Reserve Fund, all as provided for in (and subject to the limitations of) the
other Transaction Documents. 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 1998-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 Indenture Trustee 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 1998-A SUBI Collection Account, which may mature
on such dates as specified by the Indenture 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
11
Trustee and the Indenture Trustee, to the effect that the utilization by the
Servicer of an alternative remittance schedule with respect to collections
arising out of the 1998-A SUBI Portfolio to be deposited in the 1998-A SUBI
Collection Account pursuant to Section 2.02(c) or (d) of the Servicing Agreement
(including but not limited to the use of an alternative remittance schedule
pursuant to which the obligations of the Servicer to make such remittances are
secured by a Servicer Letter of Credit satisfactory to each such Rating Agency)
will not result in a qualification, downgrading or withdrawal of the
then-current rating assigned to the Rated Notes by such Rating Agency, (i) this
Supplement may be so modified without the consent of any Noteholders 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 1998-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 Owner Trustee of
the initial proceeds of the 1998-A SUBI Certificate contained in the
Distribution Account and the Reserve Fund and, except as provided in this
Supplement, the 1998-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 1998-A
SUBI Certificate and the other property of the Securitization Trust pursuant to
Section 5.17 of the Indenture, the Servicer shall allocate the net proceeds
thereof between Principal Collections and Interest Collections as set forth in
Section 5.08 of the Indenture.
Section 9.03. Records.
Upon the occurrence and during the continuance of a 1998-A Servicer 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 Indenture
Trustee or, as provided in Section 11.01(b) hereof, upon demand of Noteholders
representing more than 50% of the aggregate Percentage Interests (acting as a
single Class)), deliver to the Origination Trustee all such data, operating
software and appropriate documentation necessary for the servicing of the 1998-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 1998-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 1998-A Leases, and any 1998-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 1998-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 Indenture Trustee, the Noteholders representing more than 50%
of the aggregate Percentage Interests (acting as a single Class), or otherwise),
deliver to the Origination Trustee all such data, operating software and
appropriate documentation necessary for the servicing of the 1998-A Leases and
all moneys collected by it and required to be deposited, as appropriate, in any
1998-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
12
the servicing of the 1998-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 1998-A SUBI Collection Account.
(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 Indenture 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 1998-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, the Owner Trustee or the
Indenture Trustee as Capped Origination Trust Administrative Expenses, Capped
Owner Trustee Administrative Expenses, Capped Indenture Trustee 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, the Owner Trustee and
the Indenture 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 1998-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 1998-A SUBI Portfolio and thereafter if such termination results
from a 1998-A Servicer Event of Default, the obligations of the Servicer with
respect to the 1998-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, the Owner Trustee or the Indenture Trustee, whether
in respect of this Supplement, the 1998-A SUBI Supplement, the Servicing
Agreement, any Securitization Trust Document, any 1998-A Lease, any related
Lease Document, any 1998-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 1998-A
SUBI Portfolio shall be 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 1998-A SUBI Portfolio shall be paid out of
cash flows arising from the 1998-A SUBI Portfolio as and to the extent set forth
in Section 12.01(c) of the 1998-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 1998-A SUBI Portfolio shall constitute part
of
13
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 1998-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 all Excess Collections are not required to be
retained in the Reserve Fund pursuant to Section 3.03(c) of the Securitization
Trust Agreement) 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 Indenture 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 1998-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
1998-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).
Section 9.08. Indemnification by Servicer.
The Servicer agrees to indemnify, defend and hold harmless the Owner
Trustee, the Indenture Trustee and their respective 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 Owner
Trustee, the Indenture Trustee or their respective 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 1998-A
Leases and 1998-A Leased Vehicles, the servicing of the 1998-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 1998-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 1998-A
SUBI Portfolio), the Origination Trustee, the Owner Trustee or the Indenture
Trustee.
14
Section 9.09. Third Party Claims.
The Servicer shall immediately notify the Owner Trustee and the Indenture
Trustee and any other holder of any 1998-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 Trust, the Securitization Trust, the
Owner Trustee, the Indenture Trustee, any 1998-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 1998-A SUBI Portfolio) or the servicing thereof or with
respect to any other Trust Asset (whether or not constituting a 1998-A SUBI
Asset).
Section 9.10. Insurance Policies.
(a) So long as any 1998-A SUBI Certificate 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 1998-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 Affiliates), and
(B) either each Rating Agency has confirmed (orally or in writing) to the
Indenture 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 Notes 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, except
in the case of compliance with clause (ii) or (iii) of Section 8.01(m) 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 1998-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 1998-A Leased Vehicle under the Residual Value Insurance Policy
except (i) in accordance with its customary and usual procedures and (ii) in a
manner as will not result in such 1998-A Leased Vehicle not being covered by the
Residual Value Insurance Policy.
15
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 Indenture 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 Indenture 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 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
1998-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 1998-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
Indenture 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 1998-A Leased Vehicles into the 1998-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
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 Indenture 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
16
the Servicing Agreement and the other Origination Trust Documents, such
agreement also must be reasonably satisfactory to the Indenture 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 LLC, 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.
Section 9.15. Servicer Administrative Duties under the
Transaction Documents.
The Servicer shall be obligated to perform on behalf of the Securitization
Trust all administrative duties required to be performed by the Securitization
Trust pursuant to any of the Transaction Documents (including without limitation
the preparation, delivery and filing of any and all certificates, reports,
filings, and other documents required by law or the Transaction Documents)
within the time period specified by and otherwise in compliance with the
requirements of such Transaction Documents; provided that nothing in this
Section will be deemed to cause the Servicer to be obligated to make payments on
the Notes, or to be an obligor or guarantor with respect to the Notes. Without
limiting the generality of the foregoing, the Servicer shall, on behalf of the
Securitization Trust, perform any and all of the actions required by Section
7.04 of the Indenture.
ARTICLE TEN
STATEMENTS AND REPORTS
Section 10.01. Reporting by the Servicer.
(a) The Servicer shall deliver to the Indenture 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
Indenture 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 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 1998-A Leases and
1998-A Leased Vehicles, the Discounted Principal Balance of each 1998-A Lease
and the related Cutoff Date for each 1998-A Lease, and on or prior to each
Determination Date, shall cause to be delivered to the Origination Trustee, the
Indenture 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 1998-A SUBI
Supplement, 3.03 of the Securitization Trust Agreement and Section 8.02(b) of
the Indenture 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 Indenture Trustee the
17
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 Indenture Trustee the
statements required by that Section. Any Noteholder or Note 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
Indenture 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
Indenture Trustee and each Rating Agency.
(b) The Servicer shall deliver to the Indenture 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 specifying the nature and status of any event which with the giving
of notice or lapse of time, or both, would become a 1998-A Servicer Event of
Default.
(c) On or prior to each Determination Date, the Servicer shall cause to be
delivered to the Indenture 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 Owner 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 Notes as indebtedness). Also as
contemplated by Section 6.12 of the Securitization Trust Agreement, if and to
the extent the Trust is treated as a partnership for federal income tax
purposes, the Servicer shall prepare or cause to be prepared any federal and
state income tax returns that may be required with respect to the Securitization
Trust or the assets thereof and shall deliver any such returns to the Owner
Trustee for signature by the Transferor at least five days prior to the date
such returns are required by law to be filed.
18
ARTICLE ELEVEN
SERVICER DEFAULT
Section 11.01. Events of Default; Termination of Servicer
as to 1998-A SUBI Portfolio.
(a) Any of the following acts or occurrences shall constitute a 1998-A
Servicer 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 1998-A SUBI
Certificate or to the Indenture Trustee for distribution to the Noteholders 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 Origination Trustee, the Indenture Trustee or
Noteholders representing not less than 25% of the aggregate Percentage
Interests;
ii) The Origination Trustee or the Indenture Trustee shall not have
received any report relating to the 1998-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 1998-A SUBI Portfolio, which default materially and adversely affects the
rights of the holder of the 1998-A SUBI Certificate, the Certificate or the
Noteholders, 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 Indenture Trustee or by Noteholders 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 1998-A SUBI Portfolio
or any certificate, report or other writing delivered pursuant hereto or thereto
relating to the 1998-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 Indenture Trustee or Noteholders 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 Trustee, the Indenture Trustee or
Noteholders representing not less than 25% of the aggregate Percentage
Interests;
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(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 Indenture Trustee or Noteholders 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 the fourth sentence of Section 3.04(b) of the Securitization Trust
Agreement with regard to the deposit into the Reserve Fund of an amount equal to
the RV Insurer Reserve Fund Supplemental Requirement in the event of an RV
Insurer 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 1998-A Servicer
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 Indenture Trustee, the Origination Trustee, the
Transferor and the Noteholders 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 1998-A SUBI Portfolio absent a 1998-A Servicer Event of Default,
as further set forth below. The consequences of a 1998-A Servicer 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
those purposes, references in Section 4.01(b) of the Servicing Agreement, to
an Event of Default shall mean a 1998-A Servicer Event of Default. Further, in
the case of the 1998-A SUBI, references to "the holder of the requisite
percentage of any SUBI" shall refer either to the Indenture Trustee, or to
Noteholders representing more than 50% of the aggregate Percentage Interests
(acting as a single Class). If a 1998-A Servicer Event of Default shall have
occurred and be continuing, the Origination Trustee, on behalf of the
Origination Trust, upon the direction of the Indenture Trustee or Noteholders
representing more than 50% of the aggregate Percentage Interests (acting as a
single class), 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 1998-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 1998-A SUBI Portfolio,
whether with respect to the related Lease Documents, the related Title
Documents or Lease Records, the 1998-A SUBI Collection Account, the
Distribution Account, any 1998-A Lease Funding Account, the Reserve Fund, 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
20
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 1998-A Leases and the
1998-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 1998-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 1998-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
1998-A SUBI Portfolio by giving written notice of such resignation or
declination to the Origination Trustee and the Indenture 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
Indenture 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 Indenture Trustee and
the Noteholders, to obtain a new servicer for the 1998-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 Indenture Trustee referred to above, the Origination
Trustee shall not have obtained such a new servicer for the 1998-A SUBI
Portfolio, the Indenture Trustee may appoint, or may petition a court of
competent jurisdiction to appoint, a successor servicer to service the 1998-A
Leases.
No termination of the Servicer as to the 1998-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 1998-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 1998-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 1998-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 1998-A SUBI Portfolio, all the
rights, powers, duties and obligations of the Origination Trustee, the Indenture
Trustee, the Owner Trustee, the UTI Holder and the Transferor under this
Agreement, the Securitization Trust Agreement, the Indenture, the 1998-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.
21
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Termination of Agreement.
In connection with any purchase by the Transferor of the corpus of the
Securitization Trust pursuant to Section 7.02 of the Securitization Trust
Agreement, and the Transferor's then succeeding to all of the interest in the
1998-A SUBI represented by the 1998-A SUBI Certificate, and if the UTI Holder
shall thereafter succeed to such interest in the 1998-A SUBI, the Servicer, upon
the direction of the UTI Holder as provided in Section 11.05 of the 1998-A SUBI
Supplement, shall reallocate all 1998-A Leases, 1998-A Leased Vehicles and
related 1998-A SUBI Assets to the UTI Portfolio.
(c) Except as provided in this Section 12.01, the respective duties and
obligations of the Servicer and the Origination Trustee with respect to the
1998-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 1998-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 1998-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 Indenture
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 1998-A SUBI or requires approval of any Rating
Agency.
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 Indenture
Trustee shall be addressed as follows:
The Bank of New York
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Office
and any notice to the Owner Trustee shall be addressed as follows:
22
PNC Bank, Delaware
000 Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Mr. Xxxxxxx XxXxxxxx,
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 Owner Trustee or Indenture 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 1998-A SUBI
Portfolio.
Section 12.07. Binding Effect.
The provisions of the Servicing Agreement and this Supplement, insofar as
they relate to the 1998-A SUBI Portfolio, shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns, and all such provisions also shall inure to the benefit of the
Origination Trustee, on behalf of the Origination Trust, and the Securitization
Trustee. Further, all references herein to Persons or entities other than
parties hereto shall be deemed to refer to the successors and permitted assigns
of such persons, to the extent that such construction is reasonably possible; to
the extent that such construction is not reasonably possible, the parties hereto
shall amend this Supplement to as to effect the original intent of the parties
as closely as possible in an acceptable manner.
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, the Owner
Trustee or the Indenture Trustee or to any or all of the foregoing are
cumulative, and none is intended to be
23
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
1998-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 1998-A SUBI Certificate (including without limitation the Indenture Trustee,
the Owner Trustee, the Certificateholder and the Noteholders), 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.
[SIGNATURES ON NEXT PAGE]
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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: _________________________________
Xxxxxxx X. Xxxxxxxxx
Assistant 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,
LLC, its general partner
By: _________________________________
Xxxxxxx X. Xxxxxxxxx
Assistant Treasurer
U.S. BANK NATIONAL ASSOCIATION, as Trust
Agent (solely for purposes of Section 11.01(b))
By: _________________________________
Name:____________________________
Title:___________________________
25
Acknowledged and Agreed:
The Bank of New York, as Indenture Trustee
By:_______________________________________
Name:__________________________________
Title:_________________________________
PNC Bank, Delaware, as Owner Trustee
By:_______________________________________
Name:__________________________________
Title:_________________________________
26
EXHIBIT A
SCHEDULE OF 1998-A LEASES AND
1998-A LEASED VEHICLES AS OF THE INITIAL CUTOFF DATE
[Omitted. Copies on file with the Servicer, the Origination Trustee, the Owner
Trustee and the Indenture Trustee.]
3
EXHIBIT B
FORM OF SERVICER'S CERTIFICATE
