AUTO LEASING LLC
A Delaware Limited
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) is executed as of the 22nd day of April,
2016, by the undersigned parties, to continue the Company (as defined below) under the laws of the State of Delaware for the purposes
and upon the terms and conditions hereinafter set forth. The Member, the Independent Directors and the Springing Member (each
as defined below) join in the execution of this Agreement so as to be bound by this Agreement.
undersigned, by execution of this Agreement, hereby continue the Company pursuant to and in accordance with the Delaware Limited
Liability Company Act (6 Del.C. §18-101, et seq.), as amended from time to time, and hereby desire that this Agreement be,
and hereby is, the sole governing document of the Company, amending and restating the Amended and Restated Limited Liability Company
Agreement, dated as of November 6, 2009 (the “Original Agreement”), which amended and restated the Limited Liability
Company Agreement of the Company, dated as of June 27, 2008 and hereby agree as follows:
1.1 Definitions. Whenever used in this Agreement the following terms shall have the meanings respectively assigned
to them in this Article I unless otherwise expressly provided herein or unless the context otherwise requires:
“Act” shall mean the Delaware Limited Liability Company Act, 6 Del.C. §§ 18-101-et seq., as amended
from time to time.
“Affiliate” of another Person shall mean any Person directly or indirectly controlling, controlled by, or under common
control with, such other person.
Value: “Agreed Value” shall mean the fair market value of Contributed Property or services rendered as agreed
to by the contributing Member and the Company, using such reasonable method of valuation as they may adopt.
“Agreement” shall mean this Amended and Restated Limited Liability Company Agreement of the Company as the same may
be amended or restated from time to time in accordance with its terms.
shall have the meaning set forth in Section 3.1(a).
“Assignee” shall mean a Person who has acquired a share of the Company’s profits and losses and such rights
to receive distributions from the Company as are assigned to that Person, but who is not a Substitute Member.
“Bankruptcy” shall mean, with respect to any Person, (A) if such Person (i) makes an assignment for the benefit of
creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it
an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer
or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of
this nature, or (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or
of all or any substantial part of its properties, or (B) if 120 days after the commencement of any proceeding against the Person
seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation,
if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence
of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not
vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition
of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy”
set forth in Sections 18-101(1) and 18-304 of the Act.
Contribution: “Capital Contribution” shall mean the amount in cash contributed and the Agreed Value of other property
contributed by each Member (or its predecessors in interest) to the capital of the Company for such Member’s Membership
Flow: “Cash Flow” for any period shall mean operating cash flow, which shall be defined according to generally
accepted accounting principles, before deduction for depreciation, cost recovery or other noncash expenses of the Company during
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Company” shall mean World Omni Auto Leasing LLC, the Delaware limited liability company continued pursuant to the
Act and this Agreement.
Property: “Contributed Property” shall mean each Member’s interest in property or other consideration (excluding
services and cash) contributed to the Company by such Member.
“Director” shall have the meaning set forth in Section 7.2.
Disposing or Disposition: “Dispose,” “Disposing” or “Disposition” shall mean a sale, assignment,
transfer, exchange, mortgage, pledge, grant of a security interest, or other disposition or encumbrance (including, without limitation,
by operation of law), or any act thereof.
Director: “Independent Director” shall mean a Director of the Company who shall not at the present, at anytime
during the preceding five years nor while serving as Director be (i) a director (with the exception of serving as the Independent
Director of the Company or any Affiliate), officer, partner; member, attorney or counsel, employee or former employee of the Company
or any Affiliate, (ii) a holder (directly or indirectly) of any voting securities of any Affiliate, (iii) a customer, supplier
or other person who derives any of its purchases or revenues from its activities with the Company, (iv) a natural person related
to any such director, officer, partner, member, attorney or counsel, employee or former employee; customer, supplier, or holder
(directly or indirectly) of any voting securities of any Affiliate. For purposes of this definition only, “Affiliate”
shall mean any entity other than the Company (but excluding any similarly organized special purpose finance subsidiary of an Affiliate)
(i) which owns beneficially, directly or indirectly, more than 10% of the outstanding Membership Interests of the Company, (ii)
which is in control of the Company, as currently defined under § 230.405 of the Rules and Regulations of the Securities
and Exchange Commission, 17 C.P.R. § 230.405, (iii) of which 10% or more of the outstanding equity interests is owned
beneficially, directly or indirectly, by any entity described in clause (i) or (ii) above, or (iv) which is controlled by an entity
described in clause (i) or (ii) above, as currently defined under § 230.405 of the rules and Regulations of the Securities
and Exchange Commission, 17 C.F.R. § 230.405.
“IRS” shall mean the Internal Revenue Service.
Member: “Managing Member” shall mean the Member and any successor Managing Member appointed pursuant to this Agreement,
each in its capacity as a managing member of the Company.
“Member” shall mean Auto Lease Finance LLC in its capacity as managing member of the Company, and includes any Person
admitted as an additional member of the Company or a Substitute Member of the Company pursuant to the provisions of this Agreement,
each in its capacity as a member of the Company; provided, however, that the term “Member” shall not include the Springing
Interest: “Membership Interest” shall mean the limited liability company interest of the Member in the Company,
including, without limitation, rights in the capital of the Company, rights to receive distributions (liquidating or otherwise)
and allocations of profits and losses. The Member’s Membership Interest shall be expressed as a percentage which shall equal
the ratio that the value of the Capital Contributions made by such Member bears to the Capital Contributions of all members. The
initial Member’s initial Membership Interest shall be one hundred percent (100%).
“Person” shall have the meaning given that term in Section 18-101(12) of the Act.
Agency: “Rating Agency” shall mean any nationally-recognized statistical rating organization that provides a rating
at the request of the Company with respect to Securities.
“Securities” shall mean any certificate, notes or other securities issued by a Trust.
Agreements: “Securitization Agreements” shall have the meaning set forth in Section 3.1(a)(iii) and includes,
without limitation, any trust agreement between the Company and an owner trustee or Delaware trustee party thereto, and any amendments,
supplements or other modifications made thereto from time to time, any exchange note sale agreement between the Company and Auto
Lease Finance LLC or any other seller, and any amendments, supplements or other modifications made thereto from time to time,
and any exchange note transfer agreement, between the Company and any Trust or other issuing entity and/or buyer, and amendments,
supplements or other modifications made thereto from time to time.
Member: “Springing Member” has the meaning set forth in Section 8.1(b).
Member: “Substitute Member” shall mean any Person to whom a Membership Interest in the Company has been transferred
and who was not the Member immediately prior to such transfer and who has been admitted to the Company as the Member pursuant
to and in accordance with the provisions of Article IV of this Agreement.
“Trust” means any trust (including any statutory trust) formed by the Company.
2.1 Continuation. The undersigned hereby amend and restate the Original Agreement and execute this Agreement for the
purpose of setting forth the rights and obligations of the Member, the Springing Member and the Independent Directors.
2.2 Name. The name of the limited liability company continued hereby is World Omni Auto Leasing LLC.
2.3 Certificate of Formation; Foreign Qualification. Xxxx Xxxxxxxxx, as an authorized person, within the meaning
of the Act, executed and caused the delivery and filing of the Certificate of Formation of the Company in the office of the Secretary
of State of the State of Delaware, in accordance with the Act on June 26, 2008. Immediately following such filing, the Managing
Member was designated as an authorized person, within the meaning of the Act, to execute, deliver and file, or to cause the execution,
delivery and filing of, all certificates (and any amendments and/or restatements thereof) required or permitted by the Act to
be filed in the office of the Secretary of State of the State of Delaware. Prior to the Company’s conducting business in
any jurisdiction other than the State of Delaware, the Managing Member of the Company shall cause the Company to comply, to the
extent procedures are available and those matters are reasonably within the control of the Managing Member, with all requirements
necessary to qualify the Company as a foreign limited liability company in that jurisdiction. At the request of the Managing Member
of the Company, each Member shall execute, acknowledge, swear to, and deliver all certificates and other instruments conforming
with this Agreement that are necessary or appropriate to qualify, continue and terminate the qualification of the Company as a
foreign limited liability company in all such jurisdictions in which the Company may conduct business.
2.4 No State Law Partnership; Liability to Third Parties; Federal Taxation. The Member intends that the Company
not be a partnership (including, without limitation, a limited partnership) or joint venture, and that no Member be a partner
or joint venturer of any other Member, for any purpose including federal and state tax purposes, and that this Agreement not be
construed to suggest otherwise. The Member, on behalf of the Company, will elect for the Company to be a nonentity for federal
tax purposes. Except as otherwise specifically provided in the Act, no member of the Company shall be liable for the debts, obligations
or liabilities of the Company whether arising in contract, tort or otherwise, including under a judgment, decree or order of a
court, solely by reason of being a member of the Company.
PURPOSES AND POWERS, PRINCIPAL OFFICE, REGISTERED
AGENT, PERIOD OF DURATION AND MEMBER LIST
3.1 Purposes and Powers. (a) The Company has been formed solely for the following purposes:
or otherwise acquiring from time to time all right, title and interest in and to exchange notes secured by a reference pool of
motor vehicle lease contracts, monies due thereunder and related rights and other property appurtenant thereto and proceeds of
any of the foregoing (collectively, “Assets”);
owning, holding, servicing, selling, assigning, pledging granting security interests in, and otherwise dealing with the Assets,
collateral securing the Assets, related insurance policies, agreements with motor vehicle dealers or lessors or other originators
or servicers of the Assets and any proceeds or further rights associated with any of the foregoing;
Trusts and transferring from time to time the Assets, or interests therein, cash or other
assets owned by the Company to Trusts pursuant to one or more exchange note transfer agreements, trust agreements or other
agreements, including any amendments to any of the foregoing, and executing and delivering
the foregoing agreements, purchase agreements, underwriting agreements
or similar agreements which may be required or advisable to effect issuances and sales
of Securities, administration agreements, custodial agreements, pledge agreements,
security agreements, promissory notes, revolving liquidity notes, contribution agreements and any other agreement to
provide credit or liquidity enhancement to or maintain the ratings assigned to any Security or increase the credit quality of
any Security or that is otherwise necessary, suitable or convenient for the accomplishment of the transactions contemplated by
this Section 3.1 (including any amendments to any of the foregoing, collectively,
the “Securitization Agreements”);
selling, delivering, acquiring, pledging and otherwise dealing with the Securities;
and enjoying all of the rights and privileges of any subordinate or residual certificates issued under Securitization Agreements,
and selling and delivering any interests for a purchase price determined under fair and commercially reasonable terms;
executing and filing with the Securities Exchange Commission a registration statement, including a prospectus and forms of prospectus
supplements relating to Securities;
private placement memorandums relating to Securities to be offered and sold privately;
its obligations under each Securitization Agreement to which it is a party; and
in any activity and exercising any powers permitted to limited liability companies organized under the Act that are incidental
to and necessary, suitable or convenient for the accomplishment of the foregoing.
Company is hereby authorized to execute, deliver and perform, and the Member or any Director or officer on behalf of the Company
are hereby authorized to execute and deliver, the Securitization Agreements and all documents, agreements, certificates, or financing
statements contemplated thereby or related thereto, all without any further act, vote or approval of any Member, Director, officer
or other Person notwithstanding any other provision of this Agreement. The foregoing authorization shall not be deemed a restriction
on the powers of the Member or any Director or officer to enter into other agreements on behalf of the Company.
3.2 Principal Office. The initial principal office of the Company is located at 000 Xxx Xxxxx Xxxxxxxxx, Xxxxxxxxx
Xxxxx, XX 00000. The principal office of the Company may be relocated from time to time by determination of the Managing Member.
3.3 Registered Office; Registered Agent. The address of the registered office of the Company shall be c/o The
Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx Xxxxxxxx, 00000 and the
registered agent for service of process on the Company in the State of Delaware shall be The Corporation Trust Company at such
3.4 Period of Duration. The term of the Company shall continue in perpetuity, unless the Company is earlier dissolved
pursuant the provisions of this Agreement.
MEMBERSHIP AND DISPOSITIONS OF INTERESTS
4.1 Members. The name and the mailing address of the initial Member are as follows:
Lease Finance LLC
Xxx Xxxxx Xxxxxxxxx|
Xxxxxxxxx Xxxxx, XX 00000
Attn: Corporate Treasurer
4.2 Elimination of Preemptive Rights. No Member shall be entitled as such, as a matter of right, to subscribe
for or purchase interests in the Company of any class, now or hereafter authorized.
4.3 Resignation. Except as otherwise provided in this Agreement, a Member does not have the right or power to
resign from the Company as a Member.
4.4 Restriction on the Disposition of the Membership Interest.
to compliance with all applicable provisions of this Section 4.4, any Member may Dispose of all or any part of its Membership
Interest. The Person to whom a transfer of a Membership Interest is made shall be an Assignee of such interest but shall not be
a Substitute Member unless admitted as a Substitute Member in accordance with Section 4.4(b).
Person to whom a Disposition is made as described in Section 4.4(a) shall have the right to become a Substitute Member only if
(i) the Member making such Disposition grants the transferee the right to be a Substitute Member (which grant (subject to the
following clause (ii)) is hereby permitted) and (ii) such admission as a Substitute Member is consented to by all of the Members
and all members of the Board of Directors, which consent may not be unreasonably withheld.
Company shall not recognize for any purpose any purported Disposition of all or part of the Member’s Membership Interest
or any right or interest appertaining thereto unless and until the Company has received a document (i) executed by both the Member
effecting the Disposition and the Person acquiring such Membership Interest or part thereof, (ii) including the notice address
of any Person to be admitted to the Company as a Substitute Member and such Person’s agreement to be bound by this Agreement
in respect of the Membership Interest or part thereof being obtained, (iii) setting forth the Membership Interest of the parties
to the Disposition after the Disposition, (iv) containing a warranty and representation that the Disposition was made in accordance
with this Agreement and all applicable laws and regulations, and (v) the applicable Rating Agencies confirm that the transfer
will not result in a qualification, withdrawal or downgrade of any Securities ratings. Each Disposition and, if applicable, admission
complying with the provisions of this Section 4.4 is effective as of the date of the document described in this Section 4.4(c),
but only if the other requirements of this Section 4.4 have been met and any such admission shall be deemed to be simultaneous
with the related Disposition.
4.6 Personal Representative. Upon the occurrence of any event that causes the Member to cease to be a member
(other than the assignment by the Member of all its interest in the Company pursuant to Section 4.4 and the simultaneous admission
of the assignee as a Substitute Member and continuation of the Company without dissolution) or the last remaining member to cease
to be a member of the Company, to the fullest extent permitted by law, the personal representative of such member is hereby authorized
to, and shall, within 90 days after the occurrence of the event that terminated the membership of such member in the Company,
agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee,
as the case may be, as a substitute member, effective as of the occurrence of the event that terminated the membership of such
member in the Company.
5.1 Admission and Initial Capital Contributions. Auto Lease Finance LLC has been admitted as the initial Member
of the Company, holding all of the Membership Interest, which Membership Interest has been duly authorized and validly issued
to Auto Lease Finance LLC. The Member has contributed $1000.00, in cash and no other property, to the Company and may contribute
(but shall have no obligation to contribute) in the future any additional capital deemed necessary by the Managing Member, in
its sole discretion, for the operation of the Company. No other Person shall be admitted as an additional Member of the Company
without the approval of the Member and the unanimous approvals of all members of the Board of Directors, including, without limitation,
the affirmative vote of each of the Independent Directors.
5.2 Additional Capital; Adjustment of Membership Interests. Except as specifically set forth elsewhere in this
Agreement, no Member shall be required to contribute capital to the company in excess of such Member’s initial Capital Contribution.
The Membership Interests of the Members shall be adjusted to reflect (i) additional capital contributed to the Company by one
or more Members, (ii) the transfer of Membership Interests, or (iii) the resignation of a Member. As of the time of an event specified
in the immediately preceding sentence, the Membership Interest of the Members may be adjusted by the Managing Member, in its discretion,
to reflect the relative capital accounts of the Members after giving effect to any additional capital contributed to, or amounts
distributed by, the Company, as the case may be, and any appreciation or depreciation in the fair market value of the Company’s
5.3 Return of Contributions. A Member is not entitled to demand the return of any part of its Capital Contribution
or to payment of interest in respect of either its capital account or its Capital Contribution. Except as otherwise expressly
set forth in this Agreement, neither the Company nor any Member has any obligation to return the Capital Contribution of a Member.
ACCOUNTING AND DISTRIBUTION
6.1 Books; Fiscal Year Accounting Terms.
books of the Company shall be kept on the accrual basis and in accordance with generally accepted accounting principles consistently
fiscal year of the Company for financial and tax reporting purposes shall end on December 31 of each year.
6.2 Distributions of Cash Flow. From time to time, the Managing Member shall determine to what extent (if any)
there exists sufficient Cash Flow, after taking into account such working capital, capital expenditures and debt service reserves
as it deems necessary, to permit a distribution of Cash Flow to the Members. Any such distribution shall be made to the Members
proportionately in accordance with their Membership Interests. Notwithstanding any other provisions of this Agreement, any distribution
by the Company to a Member on account of its interest in the Company shall be subject to the Act and other applicable law.
MANAGEMENT LIABILITY OF MEMBERS,
RIGHTS TO OBTAIN INFORMATION
7.1 Managing Member. The Managing Member shall have the authority to exercise the rights and obligations expressly
granted to it in this Agreement.
7.2 Board of Directors. The Company shall have a Board of Managers which shall be designated as the Company’s
“Board of Directors” and each member of the Board of Directors shall be designated as a “Director.” Except
for the authority granted to the Managing Member and the officers of the Company under this Agreement, all Company powers shall
be by or under the authority of, and the business and affairs of the Company managed under the direction of, its Board of Directors.
The Board of Directors shall also have such other authority set forth in this Agreement. The Directors are hereby designated as
“managers” within the meaning of the Act. The Board of Directors in place immediately prior to the execution of this
Agreement shall continue as the Board of Directors of the Company. Members of the Board of Directors may be appointed and removed
from time to time by the Managing Member, in its sole discretion, provided, however, that the Company shall at all times have
at least two Independent Directors. Each Director shall execute a counterpart to this Agreement. The Board of Directors shall
hold meetings at such times and places to be agreed upon by a majority of the Board of Directors.
7.3 Action by Directors. (a) Except as set forth in Subsection (d) of this Section, any action required by this
Agreement to be taken by the Directors shall require the approval of not less than a majority of the Directors.
elsewhere in this Agreement to the contrary notwithstanding, for so long as any Securities which are assigned a rating by a Rating
Agency remain outstanding, no Member, Director, officer or other Person on behalf of the Company shall approve, nor shall the
Company undertake (except as provided in, or pursuant to, the Securitization Agreements): (i) the incurrence or assumption on
behalf of the Company, directly or indirectly, of any indebtedness, or (ii) the grant of a security interest of any nature whatsoever
in the Company’s assets.
elsewhere in this Agreement to the contrary notwithstanding, to the fullest extent permitted by law, no Member shall cause or
permit the Company to, nor shall the Company (for so long as any Securities which are assigned a rating by a Rating Agency remain
outstanding): (i) engage in any dissolution, liquidation, consolidation or merger (with or into any other business entity) or,
except as provided in Section 3.1 or pursuant to the Securitization Agreements, sell all or substantially all of its assets; (ii)
engage in any business activity not described in Section 3 above; or (iii) amend, modify, waive or terminate the Certificate of
Formation of the Company (except as otherwise expressly provided in this Agreement).
any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Board of
Directors, any officer or any other Person, the Company (and any Member, Director, officer or other Person on behalf of the Company)
may take the following actions only with the affirmative vote of the Member and unanimous affirmative vote of all members of the
Board of Directors, including, without limitation, the affirmative vote of each of the Independent Directors; provided, however,
that the Board of Directors may not vote on, or authorize the taking of, any of the following actions, unless there are two Independent
Directors then serving in such capacity:
an assignment for the benefit of creditors;
a voluntary petition in bankruptcy;
a petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any
statute, law or regulation;
an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the Company in
any proceeding of the type described in subclauses (i) through (iii) of this Subsection (d);
consent to, or acquiesce in the appointment of a trustee, receiver or liquidator of the Company or of all or any substantial part
of the Company’s properties;
the fullest extent permitted by law, voluntarily dissolve and wind up, or consolidate or merge with or into another entity or
sell all or substantially all of the assets of the Company;
in any business activity not set forth in Section 3.1 of this Agreement; and
the fullest extent permitted by law, take any action that would cause a Trust to: (a) dissolve or liquidate, in whole or in part,
or institute proceedings to be adjudicated bankrupt or insolvent; (b) consent to the institution of bankruptcy or insolvency proceedings
against it; (c) file a petition seeking, or consent to, reorganization or relief under any applicable Federal or state law relating
to bankruptcy; (d) consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official)
of it or a substantial part of its property; (e) make a general assignment for the benefit of creditors; (f) admit in writing
its inability to pay debts generally as they become due; or (g) take any action in furtherance of the actions set forth in clauses
(a) through (f) above.
Company may not amend, alter or repeal the definition of Independent Director, Section 3.1, Section 4.4, Section 7.2, Section
7.3, Section 8.1, Section 9.1 or Section 11.1 without the affirmative vote of the Member and the unanimous affirmative vote of
all members of the Board of Directors, including, without limitation, the affirmative vote of each of the Independent Directors
and such additional approvals or consents, if any, as may be required under the Securitization Agreements.
(f) No Independent
Director shall serve as a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company, any
Affiliate of the Company, or a substantial part of their respective property. To the fullest extent permitted by law, including
Section 18-1101(c) of the Act, the Independent Directors shall consider only the interests of the Company, including its respective
creditors, in acting or otherwise voting on the matters referred to in Section 7.3(d). No resignation or removal of an Independent
Director, and no appointment of a successor Independent Director, shall be effective until such successor shall have accepted
his or her appointment as an Independent Director by a written instrument, which may be a counterpart signature page to this Agreement.
In the event of a vacancy in the position of Independent Director, the Member shall, as soon as practicable, appoint a successor
Independent Director. All right, power and authority of the Independent Directors shall be limited to the extent necessary to
exercise those rights and perform those duties specifically set forth in this Agreement.
7.4 Officers. (a) The Company shall have an officer designated as the Company’s president (the “President”)
who shall be appointed from time to time by the Managing Member. The President shall be the chief operating officer of the Company.
Subject to Section 7.3, the President of the Company is hereby delegated the power, authority and responsibility of the day to
day management, administrative, financial and implementive acts of the Company’s business. The President of the Company
shall have the right and power to bind the Company and to make the final determination on questions relative to the usual and
customary daily business decisions, affairs and acts of the Company. Subject to Section 7.3, other primary management functions
of the Company shall be assigned by the Managing Member.
Company shall also have officers designated as vice presidents (“Vice Presidents”) who shall be appointed from time
to time by the Managing Member. Subject to Section 7.3, the Vice Presidents shall have such powers and duties as may from time
to time be assigned to them by the Managing Member or the President. At the request of the President, or in the case of his absence
or disability, the Vice President designated by the President (or in the absence of such designation, the Vice President designated
by the Managing Member) shall perform all the duties of the President and when so acting, shall have all the powers of the President.
Managing Member may appoint such other officers as it may deem advisable from time to time. Each officer of the Company shall
hold office at the pleasure of the Managing Member, and the Managing Member may remove any officer at any time, with or without
cause. Subject to Section 7.3, if appointed by the Managing Member, the officers shall have the duties assigned to them by the
to the extent otherwise modified herein, each officer shall have fiduciary duties identical to those of officers of business corporations
organized under the General Corporation Law of the State of Delaware.
Except as otherwise provided in this Section 7.5, and to the fullest extent permitted by applicable law, the Company shall indemnify
the Member and any Director or officer and may indemnify any employee or agent of the Company, in each case, who was or is a party
or is threatened to be made a party to a threatened, pending, or completed action, suit, or proceeding (whether civil, criminal,
administrative, or investigative and whether formal or informal) other than an action by or in the right of the Company, where
such Person is a party because such Person is or was a Member, Director, officer, employee, or agent of the Company, for expenses,
including attorney fees, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by such Person.
Except as otherwise provided in this Section 7.5, and to the fullest extent permitted by applicable law, the Company shall indemnify
its Member and Directors against expenses, including, attorney fees, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by the Member or a Director in connection with an action, suit or proceeding relating to acts
or omissions of that Member or Director regarding the items set forth in Section 7.3(d) of this Agreement.
Indemnification. Except as otherwise provided in this Section 7.5, and to the fullest extent permitted by applicable law,
the Company shall indemnify such Member, Director or officer and may indemnify such employee or agent against expenses, including
attorney’s fees, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by such Person
in connection with the action, suit or proceeding. To the fullest extent permitted by law, the Company shall indemnify such Member,
Director or officer and may indemnify such employee or agent pursuant to this Section 7.5 only if the Person acted in good faith
and did not engage in willful misconduct or gross negligence. With respect to a criminal action or proceeding, the Person must
have had no reasonable cause to believe such Person’s misconduct was unlawful. Unless ordered by a court any indemnification
permitted under this Section 7.5(b) shall be made by the Company only as the Company authorizes in the specific case after (i)
determining that the indemnification is proper under the circumstances because the Person to be indemnified has met the applicable
standard of conduct and (ii) evaluating the reasonableness of the expenses and of the amounts paid in settlement. This determination
and evaluation shall be made by a majority vote of the Members who are not parties or threatened to be made parties to the action,
suit or proceeding or, if there is only one Member, by that Member. However, no indemnification shall be provided to any Member,
Director, officer, employee, or agent of the Company for or in connection with (i) the receipt of a financial benefit to which
the Person is not entitled; (ii) voting for or assenting to a distribution to Members in violation of this Agreement or the Act;
(iii) a knowing violation of law; or (iv) acts or omissions of such Person constituting willful misconduct or gross negligence.
Indemnification. To the extent that a Member, Director, officer, employee, or agent of the Company has been successful on
the merits or otherwise in defense of an action, suit, or proceeding described in Section 7.5(a) or in defense of any claim, issue,
or other matter in such action, suit or proceeding, such Person shall, to the fullest extent permitted by law, be indemnified
against actual and reasonable expenses, including reasonable attorney fees, incurred by such Person in connection with the action,
suit, proceeding and any action, suit or proceeding brought to enforce such mandatory indemnification.
7.6 Exculpation; Duties.
(a) No Member,
Director or officer of the Company shall be liable to the Company or any Person bound by this Agreement for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such Member, Director or officer in good faith on behalf
of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Member, Director
or officer by this Agreement, except that a Member, Director or officer shall be liable for any such loss, damage or claim incurred
by reason of such Member’s, Director’s or officer’s willful misconduct or gross negligence.
(b) To the
extent that at law or in equity, the Managing Member or a Director, officer, employee or agent of the Company (each, an “Indemnified
Person”) has duties (including fiduciary duties) and liabilities relating thereto to the Company or to the Member, any such
Indemnified Person acting under this Agreement shall not be liable to the Company or to any Member for its good faith reliance
on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict or eliminate the duties
and liabilities of an Indemnified Person otherwise existing at law or in equity, are agreed by the parties hereto to replace such
other duties and liabilities of such Indemnified Person.
any other provision of this Agreement or any applicable provisions of law or equity or otherwise, whenever in this Agreement the
Managing Member is permitted or required to make a decision (i) in its “sole discretion,” “discretion”
or under a grant of similar authority or latitude, the Managing Member shall be entitled to consider only such interests and factors
as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of
or factors affecting the Company or any other Member, or (ii) in its “good faith” or under another expressed standard,
the Managing Member shall act under such express standard and shall not be subject to any other or different standards imposed
by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.
DISSOLUTION, LIQUIDATION AND TERMINATION OF THE COMPANY
Company shall be dissolved and its affairs wound up upon the first to occur of the following (i) the termination of the legal
existence of the last remaining member of the Company or the occurrence of any event which terminates the continued membership
of the last remaining member of the Company in the Company, unless the Company is continued without dissolution as permitted by
this Agreement or the Act, (ii) subject to Section 7.3, the written consent of all the Members and all members of the Board of
Directors, including, without limitation, the Independent Directors or (iii) the entry of a decree of judicial dissolution of
the Company under Section 18-802 of the Act. The Company shall not be dissolved as a result of there no longer being any members
of the Company if the Company is continued without dissolution in accordance with Section 4.6 of this Agreement and the Act. Notwithstanding
anything in this Agreement to the contrary, and to the fullest extent permitted by applicable law, the Company shall not be dissolved
as long as any Securities which are assigned a rating by a Rating Agency are outstanding.
Member shall cause the Company to have at all times one Person (other than the Member) bound by this Agreement who shall automatically
become a member having no economic interest in the Company (the “Springing Member”) in accordance with this Section
8.1(b). Upon the occurrence of any event that causes the Member to cease to be a member of the Company (other than upon an assignment
by the Member of all its interest in the Company pursuant to Section 4.4 and the simultaneous admission of the assignee as a Substitute
Member and continuation of the Company without dissolution), the Springing Member shall, without any further act or vote being
necessary and simultaneously with the Member ceasing to be a member of the Company, automatically be admitted to the Company as
a member having no economic interest in the Company. The Springing Member shall continue the Company without dissolution. In order
to implement such admission of the Springing Member as a member, the initial Springing Member has executed a counterpart to this
Agreement as of the date hereof and any replacement shall execute a counterpart to this Agreement. No Springing Member that has
become a member of the Company may resign from the Company or transfer its rights as Springing Member unless a successor Springing
Member has been admitted to the Company as Springing Member by executing a counterpart to this Agreement; provided, however, the
Springing Member that has become a member shall automatically cease to be a member of the Company upon the admission to the Company
of a Substitute Member. Pursuant to Section 18-301 of the Act, a Springing Member shall not be required to make any capital contributions
to the Company and shall not receive a limited liability company interest in the Company. A Springing Member, in its capacity
as a member of the Company, may not bind the Company. Except as required by any mandatory provision of the Act, the Springing
Member, in its capacity as a member of the Company, shall have no right to vote on, approve or otherwise consent to any action
by, or matter relating to, the Company, including, without limitation, the merger, consolidation or conversion of the Company.
Prior to its admission to the Company as a member in accordance with this Section 8.1(b), the Springing Member shall not be a
member of the Company.
(c) Notwithstanding any other
provision of this Agreement, the Bankruptcy of the Member or a Springing Member that has been admitted to the Company as a member,
shall not cause such Member or Special Member, respectively, to cease to be a member of the Company and upon the occurrence of
such an event, the Company shall continue without dissolution.
8.2 Liquidation and Termination. On dissolution of the Company, the Managing Member shall appoint one or more
Persons, which appointee or appointees may include itself, to act as a liquidator. The liquidator shall proceed diligently to
wind up the affairs of the Company and make final distributions as provided herein and in the Act. The costs of liquidation shall
be borne as a Company expense. Until final distribution, subject to Section 7.3(d), the liquidator shall continue to operate the
Company properties with all of the power and authority of the Managing Member and the Board of Directors. A reasonable time shall
be allowed for the orderly liquidation of the assets of the Company and the discharge of liabilities to creditors so as to enable
the liquidator to minimize any losses resulting from liquidation. The liquidator, as promptly as possible after dissolution and
again after final liquidation, shall cause a proper accounting to be made by a nationally recognized firm of certified public
accountants of the Company’s assets, liabilities, and operations through the last day of the calendar month in which the
dissolution occurs or the final liquidation is completed, as applicable, and shall apply the proceeds of liquidation as set forth
in the remaining sections of this Article VIII.
8.3 Payment of Debts. The assets shall first be applied to the satisfaction of the liabilities of the Company
(including, to the extent otherwise permitted by law, any loans or advances that may have been made by Members to the Company
and the expenses of liquidation).
8.4 Remaining Distribution. The remaining assets shall then be distributed to the Member in accordance with the
Member’s positive capital account balance.
8.5 Reserve. Notwithstanding anything to the contrary Section 8.4, the liquidator may retain such amount as it
deems necessary as a reserve for any contingent, conditional or unmatured liabilities or obligations of the Company, which reserve,
after the passage of a reasonable period of time as determined by the liquidator, shall be distributed in accordance with this
8.6 Final Accounting. Each of the Members shall be furnished with a statement prepared by the Company’s
certified public accountants; which shall set forth the assets and liabilities of the Company as of the date of the complete liquidation.
Upon compliance by the liquidator with the foregoing distribution plan and the completion of the winding up of the Company, the
liquidator shall execute and cause to be filed a Certificate of Cancellation and any and all other documents necessary with respect
to termination and cancellation of the Company under the Act. The existence of the Company as a separate legal entity shall continue
until the cancellation of the Certificate of Formation of the Company (as amended from time to time).
9.1 Authority to Amend. Subject to Section 7.3, this Agreement and the Certificate of Formation may only be amended
with approval of the Managing Member and the majority vote of the members of the full Board of Directors and such additional approvals
or consents, if any, as may be required under the Securitization Agreements. The Managing Member shall provide prior written notice
of any proposed amendment to each Rating Agency then rating any Security that remains outstanding, but only if such rating initially
was provided at the request of the Company, any Trust or an affiliate thereof.
POWER OF ATTORNEY
10.1 Power. Each member irrevocably constitutes and appoints the Managing Member as his true and lawful attorney
in his name, place and xxxxx to make, execute, swear to, acknowledge, deliver and file:
certificates or other instruments which may, be required to be filed by the Company under the laws of the State of Delaware or
of any other state or jurisdiction in which the Managing Member shall deem it advisable;
documents, certificates or other instruments, including but not limited to, any and all amendments and modifications of this Agreement
or of the instruments described in Subsection 10.1(a) which may be required or deemed desirable by the Managing Member to effectuate
the provisions of any part of this Agreement, and, by way of extension and not in limitation, to do all such other things as shall
be necessary to continue and to carry on the business of the Company; and
documents, certificates or other instruments which may be required to effectuate the dissolution and termination of the Company,
to the extent such dissolution and termination is authorized hereby. The power of attorney granted hereby shall not constitute
a waiver of, or be used to avoid, the rights of the Members to approve certain amendments to this Agreement pursuant to Subsection
9.1 or be used in any other manner inconsistent with the status of the Company as a limited liability company or inconsistent
with the provisions of this Agreement.
10.2 Survival of Power. It is expressly intended by each Member that the foregoing power of attorney is coupled
with an interest, is irrevocable and shall survive the death, retirement or adjudication of incompetency of such Member. The foregoing
power of attorney shall survive the delivery of an assignment by the Member of its entire interest in the Company, except that
where an assignee of such entire interest has become a Substitute Member, then the foregoing power of attorney of the assignor
Member shall survive the delivery of such assignment for the sole purpose of enabling the Managing Member to execute, acknowledge
and file any and all instruments necessary to effectuate such substitution.
SEPARATE LEGAL ENTITY
11.1 Separate Legal Entity. Anything elsewhere in this Agreement or in
the Certificate of Formation to the contrary notwithstanding, for so long as any Securities which are assigned a rating
by a Rating Agency remain outstanding, the Company covenants that (except as provided in
or contemplated by any Securitization Agreement):
(a) It shall
not enter into any contractual obligation with any Affiliate of the Company or the Managing Member, any constituent party of the
Company or any shareholder of the Managing Member, except upon terms and conditions that are intrinsically fair and substantially
similar to those that would be available on an arm’s-length and commercially reasonable basis with a Person other than any
such Affiliate, constituent party or shareholder.
(b) It shall:
(i) maintain and prepare financial reports and statements showing its assets and liabilities separate and apart from those of
any other Person and will not have its assets listed on the financial statement of any other entity; (ii) maintain its books,
records and bank accounts separate from those of its Affiliates, any constituent party and any other Person; and (iii) not permit
any Affiliate or constituent party independent access to its bank accounts.
(c) It shall
not commingle any of the funds and other assets of the Company with those of any Affiliate or constituent party or any other Person
and shall hold all of its assets in its own name.
(d) It shall
conduct its own business in its own name.
(e) It is
and will remain solvent and shall pay its own debts, liabilities and expenses (including employment and overhead expenses) only
out of its own assets as the same shall become due, provided, however, the foregoing shall not require the Member to make any
additional capital contributions to the Company.
(f) It has
done, or caused to be done, and shall do all things necessary to observe limited liability company formalities, as applicable,
and other organizational formalities, and preserve its existence, and it shall not, nor will it permit any constituent party to,
amend, modify or otherwise change the Certificate of Formation of the Company or this Agreement in a manner which would adversely
affect the existence of the Company as a single purpose entity.
(g) It shall
pay the salaries of its own employees from its own funds and maintain a sufficient number of employees in light of its contemplated
business operations, provided, however, the foregoing shall not require the Member to make any additional capital contributions
to the Company.
(h) It shall
compensate each of its consultants and agents from its own funds for services provided to it and pay from its own assets alt obligations
of any kind incurred, provided, however, the foregoing shall not require the Member to make any additional capital contributions
to the Company.
(i) It does
not, and shall not, guarantee, become obligated for, or hold itself or its credit out to be responsible for or available to satisfy,
the debts or obligations of any other Person or the decisions or actions respecting the daily business or affairs of any other
(j) It shall
not acquire obligations or securities in any Affiliate or any of the Members. It shall not buy or hold any evidence of indebtedness
issued by any other Person (other than cash and investment-grade securities).
shall allocate fairly and reasonably the cost of: (i) any overhead expenses shared with any Member, Affiliate or with any Affiliate
of any Member; and (ii) any services (such as asset management, legal and accounting) that are provided jointly to the Company
and one or more Affiliates.
(l) It shall
maintain and utilize separate stationery, invoices and checks bearing its own name and allocate separate office space (which may
be a separately identified area in office space shared with one or more Affiliates) and maintain a separate sign in the office
directory (if applicable) of the Company.
(m) It has
not made any loans or advances to, or pledged its assets (except as provided in the Securitization Agreements) for the benefit
of, and shall not make any loans or advances to, or pledge its assets (except as provided in the Securitization Agreements) for
the benefit of, any Person, including, without limitation, any Affiliate, constituent party, or any Affiliate of any constituent
(n) It shall,
at all times, hold itself out to the public as a legal entity separate and distinct from any other Person and shall correct any
known misunderstanding regarding its separate identity.
(o) It shall
not identify itself as a division of any other Person.
(p) It shall
maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light
of its contemplated business operations, provided, however, the foregoing shall not require the Member to make any additional
capital contributions to the Company.
(q) It has
and shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its
individual assets from those of any Affiliate or constituent party, any guarantor, or any Affiliate of any constituent party or
guarantor, or any other Person.
(r) It shall
at all times cause there to be at least two duly appointed Independent Directors.
12.1 Method of Giving Consent. Any consent of the Member required by this Agreement may be given by a written
consent, given by the consenting Member and received by the Person soliciting such consent. Any consent of a member of the Board
of Directors required by this Agreement may be given by a written consent given by the consenting member of the Board of Directors
and received by the Person soliciting such consent.
12.2 Governing Law. This Agreement and the rights and duties of all Members shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to principles of conflict of laws.
12.3 Agreement for Further Execution. At any time or times upon the request of the Managing Member, each Member
agrees to sign and swear to any certificate, any amendment to or cancellation of such certificate, acknowledge similar certificates
or affidavits or certificates of fictitious firm name or the like (and any amendments or cancellations thereof) required by the
laws of the State of Delaware, or any other jurisdiction in which the Company does, or proposes to do, business. This Section
12.3 shall not prejudice or affect the rights of the Members to approve amendments to this Agreement pursuant to Section 9.1.
12.4 Entire Agreement. This Agreement contains the entire understanding between the parties and supersedes any
prior understandings or agreements between them respecting the within subject matter. There are no representations, agreements,
arrangements or understandings, oral or written, between the parties hereto relating to the subject matter of this Agreement which
are not fully expressed.
12.5 Severability. This Agreement is intended to be performed in accordance with, and only to the extent permitted
by, all applicable laws, ordinances, rules and regulations of the jurisdictions in which the Company does business. If any provision
of this Agreement or the application thereof to any Person or circumstance shall, for any reason and to any extent, be invalid
or unenforceable; the remainder of this Agreement and the application of such provision to other Persons or circumstances shall
not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.
12.6 Notices. Notices to Members or to the Company shall be deemed to have been given when personally delivered
or mailed, by prepaid registered or certified mail, addressed as set forth in this Agreement, unless a notice of change of address
has previously been given in writing by the addressee to the addressor, in which case such notice shall be addressed to the address
set forth in such notice of change of address.
12.7 Counterparts. This Agreement may be executed in multiple counterparts, each one of which shall constitute
an original executed copy of this Agreement
12.8 Pronouns. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural, as the identity of the person or persons may require.
12.9 Titles and Captions. All titles and captions are for convenience only, do not form a substantive part of
this Agreement, and shall not restrict or enlarge any substantive provisions of this Agreement.
12.10 Binding Agreement. Notwithstanding any other provision, of this Agreement, the Member agrees that this
Agreement constitutes a legal, valid and binding obligation of the Member, and is enforceable against the Member by the Independent
Directors, in accordance with its terms. In addition, the Independent Directors shall be intended beneficiaries of this Agreement.
IN WITNESS WHEREOF,
the undersigned have duly executed this Agreement, as of the date first set forth above.
AUTO LEASE FINANCE LLC
By: WORLD OMNI FINANCIAL
its sole Member
Name: Xxxxx Xxxxxx
Title: Assistant Treasurer
Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
WORLD OMNI RECEIVABLES, INC.
Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
and Agreed by other Directors:
Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx