1
EXHIBIT 10.2
--------------------------------------------------------------------------------
AUTO LEASE FINANCE L.P.,
VT INC.,
AS TRUSTEE OF WORLD OMNI LT,
AND
FOR CERTAIN LIMITED PURPOSES ONLY
U.S. BANK NATIONAL ASSOCIATION
(FORMERLY KNOWN AS FIRST BANK NATIONAL ASSOCIATION AND
SUCCESSOR TRUSTEE TO BANK OF AMERICA ILLINOIS)
SUPPLEMENT 1997-B TO
TRUST AGREEMENT
DATED AS OF OCTOBER 1, 1997
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
Page
----
RECITALS .........................................................................................................1
PART X
DEFINITIONS.......................................................................................................3
Section 10.01. Definitions............................................................................3
Section 10.02. Rights in Respect of 1997-B SUBI......................................................17
PART XI
CREATION OF 1997-B SUBI..........................................................................................17
Section 11.01. Initial Creation of 1997-B SUBI Portfolio and 1997-B S................................17
Section 11.02. Subsequent Additions to 1997-B SUBI Portfolio.........................................18
Section 11.03. Issuance and 1997-B SUBI Certificates.........................................20
Section 11.04. Actions and Filings...................................................................21
Section 11.05. Termination of 1997-B SUBI............................................................21
Section 11.06. Merger or Consolidation of Trustee....................................................21
Section 11.07. Representations and Warranties of Trustee.............................................22
Section 11.08. Other SUBIs...........................................................................22
Section 11.09. Retained SUBI Interest................................................................23
Section 11.10. Minimum Net Worth.....................................................................23
PART XII
SUBI ACCOUNTS....................................................................................................23
Section 12.01. 1997-B SUBI Collection Account........................................................23
Section 12.02. 1997-B SUBI Lease Account.............................................................25
Section 12.03. Residual Value Surplus Account........................................................25
Section 12.04. Servicer Calculations.................................................................26
PART XIII
MISCELLANEOUS PROVISIONS.........................................................................................26
Section 13.01. Amendment, Etc........................................................................26
Section 13.02. Governing Law.........................................................................27
Section 13.03. Notices...............................................................................28
Section 13.04. Severability of Provisions............................................................28
Section 13.05. Effect of Supplement on Trust Agreement...............................................28
i
3
EXHIBITS:
EXHIBIT A - Schedule of 1997-B Leases and 1997-B Leased
Vehicles as of the Initial Cutoff Date..................................................... ▇-▇
▇▇▇▇▇▇▇ ▇ - ▇▇▇▇-▇ ▇▇▇▇ Certificates................................................................... B-1
EXHIBIT C - Forms of 1997-B Leases ............................................................................ C-1
EXHIBIT D - Current Credit and Collection Policy .............................................................. D-1
ii
4
SUPPLEMENT 1997-B TO
TRUST AGREEMENT
SUPPLEMENT 1997-B TO TRUST AGREEMENT (the "Supplement"), dated and
effective as of October 1, 1997, among AUTO LEASE FINANCE L.P., a Delaware
limited partnership ("ALFI LP" or, in its capacity as grantor, the "Grantor" and
in its capacity as beneficiary, the "Beneficiary"), VT INC., an Alabama
corporation, as trustee (in such capacity, together with any successor or
permitted assign, the "Trustee"), and for certain limited purposes only, U.S.
BANK NATIONAL ASSOCIATION, a national banking association (formerly known as
First Bank National Association and successor to Bank of America Illinois, an
Illinois banking corporation) (together with any predecessor or successor,
("U.S. Bank").
RECITALS
A. The Grantor, the Trustee and U.S. Bank have entered into
that certain Second Amended and Restated Trust Agreement dated as of July 1,
1994 (amending and restating that certain original Trust Agreement among Auto
Lease Finance, Inc., a Delaware corporation ("ALFI" or, in its capacity as
initial grantor, the "Initial Grantor"), the Trustee and U.S. Bank dated as of
November 1, 1993, and that certain Amended and Restated Trust Agreement dated as
of June 1, 1994 among the Initial Grantor, the Grantor, the 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 (as so
amended and restated, and as it may be further amended, supplemented or
modified, the "Trust Agreement"), pursuant to which the Initial Grantor and the
Trustee formed World Omni LT, an Alabama trust (the "Trust"), for the purpose of
taking assignments and conveyances of, holding in trust and dealing in, various
Trust Assets (as defined in the Trust Agreement) in accordance with the Trust
Agreement. The Initial Grantor and World Omni Financial Corp. ("WOFCO"), the
sole parent of ALFI, have entered into that certain Limited Partnership
Agreement dated as of June 1, 1994, as amended and restated by that certain
Amended and Restated Limited Partnership Agreement dated as of July 1, 1994,
pursuant to which the Grantor was created and ALFI contributed to the Grantor
all of its right, title and interest in and to the Trust both as Initial Grantor
and as the Initial Beneficiary thereof.
B. The Trustee, on behalf of the Trust, and WOFCO (in its
capacity as servicer, the "Servicer") also have entered into that certain Second
Amended and Restated Servicing Agreement dated as of July 1, 1994 (the
"Servicing Agreement"), amending and restating that certain original Servicing
Agreement dated as of November 1, 1993, and that certain Amended and Restated
Servicing Agreement dated as of June 1, 1994, which provides, among other
things, for the servicing of the Trust Assets by the Servicer.
C. The Trust Agreement contemplates that, from time to time
the Trustee, on behalf of the Trust and at the direction of the Beneficiary,
will identify and allocate on the Trust's books and records certain Trust Assets
within a separate SUBI Portfolio (as defined in the Trust Agreement) and create
and issue to the Beneficiary a separate special unit of beneficial interest
5
in the Trust or "SUBI" (as defined in the Trust Agreement), whose beneficiaries
generally will be entitled to the net cash flow arising from, but only from, the
related SUBI Portfolio (as defined in the Trust Agreement), all as set forth in
the Trust Agreement.
D. The parties hereto desire to supplement the terms of the
Trust Agreement to cause the Trustee to identify and allocate such a SUBI
Portfolio (the "1997-B SUBI Portfolio") and to create and issue to the
Beneficiary two (2) SUBI Certificates (as defined in the Trust Agreement) (such
SUBI Certificates, together with any replacements thereof, the "1997-B SUBI
Certificates") that, collectively, evidence the entire beneficial interest in
the related SUBI (the "1997-B SUBI"), and to set forth the terms and conditions
thereof.
E. Concurrently herewith, the Beneficiary and World Omni Lease
Securitization L.P. (the "Transferor") are entering into that certain SUBI
Certificate Purchase and Sale Agreement dated as of October 1, 1997 (the "SUBI
Certificate Agreement"), pursuant to which the Beneficiary will sell to the
Transferor, without recourse, all of the Beneficiary's right, title and interest
in and to the 1997-B SUBI and the 1997-B SUBI Certificates, all moneys due
thereon and paid thereon or in respect thereof and the right to realize on any
property that may be deemed to secure the 1997-B SUBI, and all proceeds thereof,
all in consideration of the cash payment to the Beneficiary of an amount equal
to the Aggregate Net Investment Value (as defined in the Securitization Trust
Agreement, as defined below) of the 1997-B SUBI Portfolio as of the Initial
Cutoff Date (as defined below).
F. Also concurrently herewith, and as contemplated by the
Servicing Agreement and the Trust Agreement, the Transferor, PNC Bank, Delaware,
as owner trustee (the "Owner Trustee") and U.S. Bank, as indenture trustee (the
"Indenture Trustee") are entering into that certain Securitization Trust
Agreement dated as of October 1, 1997 (the "Securitization Trust Agreement"),
pursuant to which a SUBI Certificate (as defined in the Trust Agreement)
representing a 99.8% beneficial interest in the 1997-B SUBI (the "99.8% 1997-B
SUBI Certificate") will be transferred by the Transferor to the Owner Trustee,
in that capacity, and pledged to the Indenture Trustee, in that capacity, in
connection with a Securitized Financing (as defined in the Trust Agreement), but
the SUBI Certificate representing a 0.2% beneficial interest in the 1997-B SUBI
(the "0.2% 1997-B SUBI Certificate") will be retained by the Transferor and not
used in connection with a Securitized Financing.
G. Also concurrently herewith, the Indenture Trustee and the
Owner Trustee are entering into that certain Indenture dated as of October 1,
1997 (the "Indenture") pursuant to which, among other things, the Securitization
Trust will issue the Notes (as defined in the Indenture) and the Securitization
Trust will grant a security interest to the Indenture Trustee with respect to
all of the assets held by the Securitization Trust, including the 99.8% 1997-B
SUBI Certificate.
H. Also concurrently herewith, the Trustee, on behalf of the
Trust, and the Servicer also are entering into that certain Supplement 1997-B to
Servicing Agreement dated as of October 1, 1997 (the "Servicing Supplement")
pursuant to which, among other things, the
2
6
terms of the Servicing Agreement will be supplemented insofar as they apply to
the 1997-B SUBI Portfolio, providing for further specific servicing obligations
that will benefit the holders of the 1997-B SUBI Certificates and the parties to
the Securitized Financing (as defined in the Trust Agreement) contemplated by
the Securitization Trust Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained and in the Trust Agreement, the parties hereto agree
to the following supplemental obligations and provisions with regard to the
1997-B SUBI Portfolio:
PART X
DEFINITIONS
Section 10.01. 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 the Trust Agreement, (b) the capitalized terms
expressly 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", and (e) the term "or" shall
include "and/or".
"Accountant" means a Person qualified to pass upon accounting
questions, whether or not (unless herein required to be Independent) such person
shall be an officer or employee of the Grantor, the Trust or the Transferor or
of an Affiliate thereof.
"Additional Loss Amount" means, with respect to any Collection
Period, all payments (including any indemnification or reimbursement of the
Trustee or any Trust Agent) with respect to Claims by Persons other than the
Trustee, the Trust Agent, the Servicer, the Indenture Trustee, the Owner
Trustee, the Certificateholders, and any other beneficiary of the Trust against
or with respect to the 1997-B SUBI Assets paid during that Collection Period,
including reasonable fees and expenses of attorneys incurred in defending or
settling such Claims, all as allocated by the Trustee pursuant to Section
7.01(c) of the Trust Agreement, and the amount of reserves for future possible
such payments that the Servicer, on behalf of the Trustee, deems advisable
(after consultation with Independent Accountants) to retain in the 1997-B SUBI
Collection Account out of moneys that otherwise would constitute Collections for
that Collection Period.
"Administrative Expense" means any reasonable administrative
cost or expense associated with the Trust, including reasonable fees and
expenses of attorneys and accountants (other than such fees and expenses as
constitute an Additional Loss Amount).
3
7
"Advance" means those advances required or permitted to be
made by the Servicer pursuant to Section 9.04 of the Servicing Supplement.
"ALFI" has the meaning set forth in Recital A.
"ALFI LP" has the meaning set forth in the Preamble.
"Amortization Period" has the meaning set forth in the
Securitization Trust Agreement.
"Backup Security Agreement" means that certain Backup Security
Agreement dated as of October 1, 1997, among WOFCO, the Grantor, the Trustee on
behalf of the Trust, the Transferor and the Indenture Trustee.
"Bankrupt Lease" means a Lease as to which a voluntary or
involuntary case has commenced against the related Obligor under the federal
bankruptcy laws, as now or hereafter in effect, or under another present or
future federal or State bankruptcy, insolvency or similar laws, after the date
of origination of the related Lease.
"Beneficiary" has the meaning set forth in the Preamble.
"Capped Contingent and Excess Liability Premiums" means, as of
any Deposit Date, an amount sufficient to pay the premiums then due on the
portion of any Contingent and Excess Liability Insurance Policies allocable to
the 1997-B SUBI Portfolio, provided, however, that to the extent that the
portion of such amount allocable to the 99.8% 1997-B SUBI Certificate, together
with all such portions since the beginning of the calendar year, exceeds
$__________, such portion shall not constitute a Capped Contingent and Excess
Liability Premium but instead shall constitute an "Uncapped Administrative
Expense" (as defined in the Securitization Trust Agreement).
"Capped Origination Trust Administrative Expenses" means, as
of any Deposit Date, Administrative Expenses with respect to the Trust due on or
before such Deposit Date as are allocable to the 1997-B SUBI Portfolio, but
specifically not including any premiums on any portion of the Contingent and
Excess Liability Insurance Policies allocable to the 1997-B SUBI Portfolio;
provided, however, that to the extent the portion of such Administrative
Expenses allocable to the 99.8% 1997-B SUBI Certificate, together with all such
portions since the beginning of the calendar year, exceeds $_______, such
portion shall not constitute a Capped Origination Trust Administrative Expense
but instead shall constitute an "Uncapped Administrative Expense" (as defined in
the Securitization Trust Agreement).
"Certificateholders" has the meaning set forth in the
Securitization Trust Agreement.
"Certificate" has the meaning set forth in the Securitization
Trust Agreement.
4
8
"Charged-off Lease" means a Lease (a) with respect to which
the related Leased Vehicle has been repossessed and sold or otherwise disposed
of, or (b) the Lease has been written off by the Servicer in accordance with its
normal policies for writing off lease contracts other than with respect to
repossessions and Early Termination Leases.
"Closing Date" means October 1, 1997.
"Collection Period" means, with respect to any Distribution
Date, the period from and including the first day of the calendar month
immediately preceding the calendar month in which such Distribution Date occurs
(or, with respect to the first Distribution Date, from and including the Initial
Cutoff Date) to and including the last day of the calendar month immediately
preceding the calendar month in which the Distribution Date occurs.
"Collections" means, with respect to any Collection Period,
all collections received on or in respect of the 1997-B Leases and 1997-B Leased
Vehicles in respect of that Collection Period, including the following, but
subject to any limitations set forth therein: (i) Monthly Lease Payments
(including amounts that previously were Payments Ahead but which became due
during that Collection Period, Prepayments, Extension Fees, and any other
payment by an Obligor under a 1997-B Lease); (ii) Net Matured Leased Vehicle
Proceeds, Net Repossessed Vehicle Proceeds, and all other Net Liquidation
Proceeds; (iii) any Net Insurance Proceeds not included in Net Liquidation
Proceeds; (iv) Advances; and (v) any Undistributed Transferor Excess Collections
with respect to the Distribution Date occurring during that Collection Period;
provided, however, that Collections (A) shall in no event include proceeds of
claims made under the Residual Value Insurance Policy, and (B) shall in no event
include, and shall be net of, the following, which shall be retained in the
1997-B SUBI Collection Account or paid to the appropriate party: (1) any portion
of any of the foregoing that represents late payment charges, or collections
allocable to payments to be made by Obligors for payment of insurance premiums,
excise taxes or similar items; (2) Payments Ahead; (3) the amount of all
Advances, Matured Leased Vehicle Expenses, Repossessed Vehicle Expenses and
other Liquidation Expenses, and Insurance Expenses reimbursed pursuant to
Section 9.02(g) of the Servicing Supplement; (4) Additional Loss Amounts; and
(5) any amounts required to be retained in the 1997-B SUBI Collection Account in
order to maintain that account in good standing.
"Contingent and Excess Liability Insurance Policy" means that
certain policy numbered 5539875 issued to the Servicer and the Trustee, on
behalf of the Trust, by Lexington Insurance Company and that certain policy
numbered BE 9324116 issued to the Servicer and the Trustee on behalf of the
Trust by National Union Fire Insurance Company of Pittsburgh, Pennsylvania and
that certain policy numbered XLUMB-00260 issued to ▇.▇. Family Enterprises, Inc.
by X.L. Insurance Company, Ltd. with the Origination Trustee named as an
additional insured or loss payee, plus all excess or umbrella policies from time
to time issued with the Origination Trustee named as an additional insured or
loss payee, in each case to the extent applicable to any 1997-B Lease or 1997-B
Leased Vehicle.
5
9
"Contract Rights" means all of the Trustee's right, title, and
interest in, to, and under any 1997-B Leases and the proceeds therefrom, which
right, title, and interest include without limitation: the Lease Documents; all
Monthly Lease Payments received on or due on or after the related Cutoff Date;
Security Deposits paid by any Obligor to secure the obligations of such Obligor
to the Obligee in the amount and to the extent provided in the related 1997-B
Lease; partial prepayments and Prepayments (regardless of whether made by the
related Obligor or by any other Person) received on or after the related Cutoff
Date and Matured Leased Vehicle Proceeds, Repossessed Vehicle Proceeds and other
Liquidation Proceeds and Insurance Proceeds received on or after the related
Cutoff Date; subject, however, to the limitations set forth in Section 11.01(a).
"Credit and Collection Policy" means those lease origination
and credit and collection policies and practices of the Servicer as applied by
the Servicer with respect to Leases and Leased Vehicles, a summary of the
current form of which is attached as Exhibit D.
"Cutoff Date" means the Initial Cutoff Date or a Subsequent
Cutoff Date, as the context may require.
"Defaulted Lease" means a Lease (a) as to which any Monthly
Lease Payment or part thereof in excess of $40.00, remains unpaid for more than
90 days from the original due date for such payment, or (b) that is a
Charged-off Lease.
"Delinquent Lease" means, with respect to any Lease as of any
Due Date, a Lease as to which all or any part of a Monthly Lease Payment in
excess of $40.00 is unpaid (including without limitation because of a check
being returned for insufficient funds) 61 days or more after its Due Date (other
than a Defaulted Lease or a Lease as to which an extension has been granted with
respect to such Due Date by the Servicer pursuant to clause (ii) of Section
2.02(b) of the Servicing Agreement) (and, if applicable, Section 9.02(a) of the
Servicing Supplement).
"Deposit Date" means, with respect to a Collection Period, the
Business Day preceding the related Distribution Date.
"Discount Rate" means ____% per annum.
"Discounted Lease" means a 1997-B Lease with a Lease Rate of
less than ____%.
"Discounted Principal Balance" means (i) with respect to any
1997-B Lease that is a Discounted Lease, an amount equal to the present value of
the sum of all remaining Monthly Lease Payments on such Lease paid on a timely
basis, plus the Booked Residual Value of the related 1997-B Leased Vehicle,
calculated by discounting such Monthly Lease Payments and Booked Residual Value
by the Discount Rate, and (ii) with respect to any other 1997-B Lease, its
Outstanding Principal Balance at such time.
6
10
"Distribution Date" has the meaning set forth in the
Securitization Trust Agreement.
"Due Date" means, as to any Monthly Lease Payment, the date
during each month upon which such payment is due, which date is specified in the
related 1997-B Lease.
"Early Termination Lease" means a 1997-B Lease which is
terminated prior to its Maturity Date by agreement between the Servicer and the
Obligor in connection with the payment (excluding payments in the form of
non-cash items) of less than 100% of the Outstanding Principal Balance of a
1997-B Lease; provided, however, that such a 1997-B Lease will not constitute an
Early Termination Lease if such deficit is less than $200.00.
"Eligible Account" means either (a) an account that is
maintained with a depository institution or trust company organized under the
laws of the United States or of any State, the commercial paper or other
short-term unsecured debt obligations of which have credit ratings from Moody's
at least equal to "P-1" (so long as ▇▇▇▇▇'▇ is a Rating Agency) and from
Standard & Poor's at least equal to "A-1+" (so long as Standard & Poor's is a
Rating Agency); or (b) a segregated trust account bearing a designation clearly
indicating that funds deposited therein are held in trust for the benefit of the
Noteholders, the holders of the 1997-B SUBI Certificates or the
Certificateholders, as the case may be, maintained in the corporate trust
department of a depositary institution or trust company organized under the laws
of the United States or of any State and having corporate trust powers, which
institution or trust company has a rating from Moody's for its long term
deposits of at least Baa3 (so long as ▇▇▇▇▇'▇ is a Rating Agency).
"Eligible Lease" means a Lease as to which the following are
true as of the Closing Date or Transfer Date, as applicable (unless otherwise
specified below):
(a) that was originated by a Dealer (i) in the ordinary course
of its business, (ii) on a form of Lease attached as Exhibit C, (iii)
pursuant to a form of Dealer Agreement which provides for recourse to
the Dealer in the event of certain defects in the Lease but not for
default by the Obligor, and (iv) in compliance with the Credit and
Collection Policy;
(b) which Lease and the related Leased Vehicle are owned by
the Trustee, on behalf of the Trust, free of all Liens (including tax
liens, mechanics' liens and liens that arise by operation of law, but
other than any lien on the title of such Vehicle noted solely to
provide for delivery of title documentation to the Trustee or its
designee);
(c) that was originated in compliance with, and complies with,
all material applicable legal requirements, including, to the extent
applicable, the Federal Consumer Credit Protection Act, as amended,
Regulations M and Z of the Board of Governors of the Federal Reserve
System, as amended, all state leasing and consumer protection laws and
all state and federal usury laws;
7
11
(d) as to which all material consents, licenses, approvals or
authorizations of, or registrations or declarations with, any
governmental authority required to be obtained, effected or given by
the originator of such Lease in connection with (i) the origination of
such Lease, (ii) the execution, delivery and performance by such
originator of such Lease, and (iii) the acquisition by the Trustee, on
behalf of the Trust, of such Lease and the related Leased Vehicle, have
been duly obtained, effected or given and are in full force and effect
as of such date of creation or acquisition;
(e) that is the legal, valid and binding full-recourse payment
obligation of the Obligor thereunder, enforceable against such Obligor
in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws, now or hereafter in effect, affecting
the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity);
(f) that, to the knowledge of the Servicer, is not subject to
any right of rescission, setoff, counterclaim or any other defense
(including defenses arising out of violations of usury laws) of the
Obligor thereof to payment of the amounts due thereunder, and no such
right of rescission, setoff, counterclaim or other defense has been
asserted or threatened;
(g) as to which each of the originator of such Lease, the
Servicer and the Trustee, on behalf of the Trust, have each satisfied
all obligations required to be fulfilled on its part with respect to
such Lease and the related Leased Vehicle;
(h) that is payable solely in United States dollars in the
United States;
(i) the Obligor of which is a Person located in one or more of
the ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, the District of Columbia or a
territory of the United States and is not (i) the Initial Grantor, the
Grantor, World Omni Lease Securitization, Inc. or the Transferor, or an
Affiliate thereof or (ii) the United States of America or any state or
local government or any agency or political subdivision thereof;
(j) that requires the Obligor thereunder to maintain insurance
against loss or damage to the related Leased Vehicle under an insurance
policy that names the Trustee, on behalf of the Trust, as loss payee,
and the related Leased Vehicle is covered by the Residual Value
Insurance Policy;
(k) the related Leased Vehicle of which is titled in the name
of the Trustee on behalf of the Trust (or properly completed
applications for such title have been submitted to the appropriate
titling authority) and all transfer and similar taxes imposed in
connection therewith have been paid;
8
12
(l) that arises under a closed-end Lease that (i) requires
equal monthly payments to be made within a fixed time period from the
date of origination of such Lease, such time period to be at least 24
months and no more than 60 months, and (ii) requires such payments to
be made by the Obligor thereof within 30 days after the billing date
for such payment;
(m) that is fully assignable and that does not require the
consent of the Obligor thereunder as a condition to any transfer, sale
or assignment of the rights of the originator under such Lease;
(n) as to which the Booked Residual Value of the related
Vehicle does not exceed the lesser of (i) $_______, and (ii) the amount
reasonably established by the Servicer consistent with its policies and
practices regarding the setting of residual values as applied with
respect to closed-end retail automobile and light duty truck leases;
(o) that, as of the related Cutoff Date, has not been extended
by more than five months in the aggregate or been otherwise
compromised, adjusted or modified except in accordance with the Credit
and Collection Policy;
(p) as to which the Obligor thereof has not made a claim under
the Soldiers' and Sailors' Relief Act of 1940;
(q) that satisfies all applicable requirements of the Credit
and Collection Policy;
(r) that is not allocated to any other SUBI Portfolio other
than the 1997-B SUBI Portfolio;
(s) that, as of the related Cutoff Date, is not a Delinquent
Lease, a Defaulted Lease or a Bankrupt Lease;
(t) that is a finance lease for purposes of generally accepted
accounting principles, consistently applied;
(u) that is a "true lease", as opposed to a lease intended as
security, under the laws of the State in which it was originated;
(v) as to which the Servicer has not exercised any right of
set off against the originating Dealer as contemplated by Section
2.01(b)(ii)(A) of the Servicing Agreement;
(w) the related Leased Vehicle of which was produced by the
original manufacturer to U.S. specifications and standards, as
evidenced by the vehicle identification number which is within the
approved series for the make and model at the time of origination of
the Lease;
9
13
(x) the related Leased Vehicle of which has not been used
commercially as a taxi cab, public omnibus, livery, sightseeing
conveyance or for any carrying of goods or passengers for hire; and
(y) which Lease, as of the related Cutoff Date, (i) is written
with respect to a Leased Vehicle that was, at the time of origination
of the Lease, a new vehicle, a dealer demonstrator vehicle driven fewer
than 6,000 miles, or a manufacturer's program vehicle; (ii) was
originated in the United States after __________, 199__ (in the case of
Leases allocated to the 1997-B SUBI Portfolio as of the Initial Cutoff
Date) or on or before __________, 199__ (in the case of Leased Vehicles
allocated to the 1997-B SUBI Portfolio as of a Subsequent Cutoff Date);
(iii) has a Maturity Date on or after __________, 199__ and no later
than __________, 200__ (in the case of Leases allocated to the 1997-B
SUBI Portfolio as of the Initial Cutoff Date) or no later than
__________, 200__ (in the case of Leases allocated to the 1997-B SUBI
Portfolio as of a Subsequent Cutoff Date); and (iv) fully amortizes to
an amount equal to the Booked Residual Value of the related Leased
Vehicle based on a fixed Lease Rate calculated on a constant yield
basis and provides for level payments over its term (except for payment
of such Booked Residual Value).
"Extension Fee" means, with respect to any 1997-B Lease that
has had its Maturity Date extended pursuant to the Servicing Agreement and the
Servicing Supplement, any payment required to be made with respect to such
1997-B Lease by the Obligor in exchange for the extension.
"Grantor" has the meaning set forth in the Preamble.
"Indenture" has the meaning set forth in Recital G.
"Indenture Trustee" has the meaning set forth in Recital F.
"Independent" means, when used with respect to any specified
Person, such a Person who (a) is in fact independent of the Grantor, the
Trustee, the Transferor and any of their respective Affiliates; (b) does not
have any direct financial interest or any material indirect financial interest
in the Grantor, the Trust, the Transferor or any of their respective Affiliates;
and (c) is not connected with the Grantor, the Trust, the Transferor or any of
their respective Affiliates as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions. "Independent"
when used with respect to any Accountant means such an Accountant, who may also
be the Accountant who audits the books of the Grantor, the Trust, the Transferor
or any of their respective Affiliates, who is Independent with respect to the
Grantor, the Trustee, the Transferor, and their respective Affiliates as
contemplated by Rule 101 of the Code of Professional Conduct of the American
Institute of Certified Public Accountants. Whenever it is herein provided that
any Independent Person's opinion or certificate shall be furnished to the
Trustee, such Person shall be acceptable to the Trustee if such opinion or
10
14
certificate shall state that the signer has read this direction and that the
signer is independent within the meaning thereof.
"Initial Beneficiary" and "Initial Grantor" shall have the
meanings set forth in the Preamble.
"Initial Cutoff Date" means October 1, 1997.
"Insurance Expenses" means any amount of Insurance Proceeds
(a) applied to the repair of the related 1997-B Leased Vehicle, (b) released to
an Obligor in accordance with the normal servicing procedures of the Servicer,
or (c) representing other related expenses incurred by the Servicer not
otherwise included in Liquidation Expenses and recoverable under the Servicing
Agreement or the Servicing Supplement.
"Insurance Policy" means, with respect to a 1997-B Lease,
1997-B Leased Vehicle or Obligor, any policy of comprehensive, collision, public
liability, physical damage, personal liability, credit health or accident,
credit life or employment insurance, or any other form of insurance.
"Insurance Proceeds" means, with respect to any 1997-B Lease,
1997-B Leased Vehicle or Obligor, proceeds paid to the Servicer or the Trustee,
on behalf of the Trust, pursuant to an Insurance Policy and amounts paid to the
Trustee, on behalf of the Trust, or the Servicer under any other insurance
policy related to such 1997-B Lease, 1997-B Leased Vehicle or Obligor (including
but not limited to any contingent and excess liability insurance policy
maintained by or on behalf of the Trustee, on behalf of the Trust, but not
including the Residual Value Insurance Policy).
"Interest Collections" means, with respect to any Collection
Period, all Collections received during or allocable to such Collection Period
other than Principal Collections, less the following, which shall be paid to the
appropriate parties or retained in the 1997-B SUBI Collection Account, as
appropriate, in the following order and priority for so long as WOFCO is the
Servicer: (a) Capped Contingent and Excess Liability Premiums, but with regard
to the Investor Percentage (as defined in the Securitization Trust Agreement) of
Interest Collections allocable to the 99.8% 1997-B SUBI Certificate, only to the
extent such deduction and payment would have the same effect as if it followed
item (iii) of Section 3.03(b) of the Securitization Trust Agreement; (b) Capped
Origination Trust Administrative Expenses, but with regard to the Investor
Percentage of Interest Collections allocable to the 99.8% 1997-B SUBI
Certificate, only to the extent that such deduction and payment would have the
same effect as if it followed item (iii) of Section 3.03(b) of the
Securitization Trust Agreement and then followed the deduction and payment set
forth in clause (a) above; and (c) the Servicing Fee and any unpaid Servicing
Fee with respect to one or more prior Collection Periods, but with regard to the
Investor Percentage of Interest Collections allocable to the 99.8% 1997-B SUBI
Certificate, only to the extent that such deduction and payment would be made
with the same effect as if it followed item (xi) of Section 3.03(b) of the
Securitization Trust Agreement and the deductions
11
15
and payments in clauses (a) and (b) have been made as indicated. If WOFCO is not
the Servicer, the deduction and payment in clause (c) shall instead be made only
to the extent that it would have with the same effect as if it followed item
(iv) of Section 3.03(b) of the Securitization Trust Agreement and the deductions
and payments in clauses (a) and (b) of the preceding sentence have been made as
indicated.
"Lease Documents" means, with respect to each 1997-B Lease,
the fully executed 1997-B Lease and any agreement(s) modifying such 1997-B Lease
(including, without limitation, any extension agreement(s) relating to extended
1997-B Lease(s)).
"Lease Rate" means, with respect to each Lease, the implicit
rate, calculated on the basis of an annual percentage rate, included in the
calculation of the Monthly Lease Payment due with respect to such Lease.
"Lien" means any security interest, lien, charge, pledge,
equity or encumbrance of any kind other than tax liens, mechanics' liens and any
liens that attach to the 99.8% 1997-B SUBI Interest or any other property, as
the context may require, by operation of law.
"Liquidation Expenses" means Matured Leased Vehicle Expenses,
Repossessed Vehicle Expenses, and all other reasonable out-of-pocket expenses
incurred by the Servicer in connection with the attempted realization of the
full amounts due or to become due under any 1997-B Lease, including expenses
incurred in connection with any collection effort (whether or not resulting in a
lawsuit against the Obligor under such 1997-B Lease) or an application or
request for Insurance Proceeds.
"Liquidation Proceeds" means Matured Leased Vehicle Proceeds,
Repossessed Vehicle Proceeds, and all other gross amounts received by the
Servicer or the Trustee, on behalf of the Trust (before reimbursement for
Liquidation Expenses) in connection with the realization of the full amounts due
or to become due under any 1997-B Lease, whether from the proceeds of any
collection effort (whether or not resulting in a lawsuit against the Obligor
under such Lease), receipt of Insurance Proceeds, or collection of amounts due
under the Servicing Agreement (including but not limited to the application of
Security Deposits pursuant to Section 2.04 thereof), the Servicing Supplement
(including but not limited to any amount required to be deposited by the
Servicer into the 1997-B SUBI Collection Account pursuant to Section 8.03
thereof) or otherwise.
"Matured Lease" means any 1997-B Lease that has reached its
scheduled Maturity Date and as to which all scheduled Monthly Lease Payments and
other payments due thereunder have been made.
"Matured Leased Vehicle Expenses" means reasonable
out-of-pocket expenses incurred by the Servicer in connection with the sale or
other disposition of a 1997-B Leased Vehicle included in Matured Leased Vehicle
Inventory.
12
16
"Matured Leased Vehicle Inventory" as of any date means all
Matured Vehicles that first became Matured Vehicles within the three immediately
preceding Collection Periods (or during the months of July, August and September
1997 in respect of any date during the October 1997 Collection Period, the
months of August and September 1997 and the October 1997 Collection Period in
respect of any date during the November 1997 Collection Period, and the month of
September 1997 and the October and November 1997 Collection Periods in respect
of any date during the December 1997 Collection Period), and that, as of the
last day of the most recent Collection Period have remained unsold and not
otherwise disposed of by the Servicer for no more than two full calender months
and/or Collection Periods, as applicable.
"Matured Leased Vehicle Proceeds" means gross amounts received
by the Servicer or the Trustee, on behalf of the Trust (before reimbursement for
Matured Leased Vehicle Expenses) in connection with the sale or other
disposition of a 1997-B Leased Vehicle included in Matured Leased Vehicle
Inventory (including any charges for excess mileage and excess wear and use).
"Matured Vehicle" as of any date means any 1997-B Leased
Vehicle the related 1997-B Lease of which has reached its Maturity Date and as
to which all scheduled Monthly Lease Payments and other payments due thereunder
have been made, and which Leased Vehicle has been returned to the Servicer on
behalf of the Origination Trustee, on behalf of the Origination Trust,
regardless of the status of the disposition of such 1997-B Leased Vehicle as of
such date.
"Maturity Date" means, with respect to any 1997-B Lease, the
date on which the last scheduled Monthly Lease Payment shall be due and payable,
as such date may be extended pursuant to Section 2.02(b) of the Servicing
Agreement and Section 9.02(a) of the Servicing Supplement.
"Monthly Lease Payment" means, with respect to any Lease, the
amount of each fixed monthly payment payable to the Obligee of such Lease in
accordance with the terms thereof, net of any portion of such monthly payment
that represents late payment charges, Extension Fees or collections allocable to
payments to be made by Obligors for payment of insurance premiums, excise taxes
or similar items.
"Net Insurance Proceeds" means Insurance Proceeds less
Insurance Expenses.
"Net Liquidation Proceeds" means Liquidation Proceeds less
Liquidation Expenses.
"Net Matured Leased Vehicle Proceeds" means Matured Leased
Vehicle Proceeds plus (unless the context otherwise requires) any sums
transferred from the Residual Value Surplus Account pursuant to Section
12.03(b), less Matured Leased Vehicle Expenses (unless the context otherwise
requires, other than those Matured Leased Vehicle Expenses as are reimbursed
from the Residual Value Surplus Account pursuant to Section 9.02(g) of
13
17
the Servicing Supplement), and less (unless the context otherwise requires) any
amounts transferred to the Residual Value Surplus Account pursuant to Section
12.01(b).
"Net Repossessed Vehicle Proceeds" means Repossessed Vehicle
Proceeds less Repossessed Vehicle Expenses.
"1997-B Lease" has the meaning set forth in Section 11.01(a).
"1997-B Leased Vehicle" has the meaning set forth in Section
11.01(a).
"1997-B SUBI" has the meaning set forth in Recital D.
"1997-B SUBI Asset" has the meaning set forth in Section
11.01(a).
"1997-B SUBI Certificate" has the meaning set forth in Recital
D.
"1997-B SUBI Collection Account" means the separate account
established and maintained by the Indenture Trustee as the initial repository of
all proceeds received with respect to all 1997-B SUBI Assets, pursuant to
Section 12.01(a).
"1997-B SUBI Lease Account" has the meaning set forth in
Section 12.02(a).
"1997-B SUBI Portfolio" has the meaning set forth in Recital
D.
"99.8% 1997-B SUBI Certificate" has the meaning set forth in
Recital F.
"0.2% 1997-B SUBI Certificate" has the meaning set forth in
Recital F.
"Noteholders" has the meaning set forth in the Indenture.
"Notes" has the meaning set forth in the Indenture.
"Obligee" means each Person who is the lessor under a 1997-B
Lease or the assignee thereof, including the Trustee on behalf of the Trust.
"Obligor" means each Person who is the lessee under a Lease.
"Outstanding Principal Balance" means, with respect to any
1997-B Lease as of any date, an amount equal to (a) the sum of all Monthly Lease
Payments remaining to be made (provided, however, that Payments Ahead received
but not yet applied are deemed to be Monthly Lease Payments remaining to be
made), less any unearned finance or other charges relating to the period
beginning after the next succeeding Due Date on such 1997-B Lease (determined in
accordance with the actuarial method as applied to the Lease Rate for such
1997-B Lease in
14
18
accordance with the Servicer's usual practices), plus (b) the Booked Residual
Value of the related Leased Vehicle.
"Owner Trustee" has the meaning set forth in Recital F.
"Payment Ahead" means any payment of one or more Monthly Lease
Payments (other than in connection with a Prepayment) remitted by an Obligor
with respect to a 1997-B Lease in excess of the Monthly Lease Payment due during
such Collection Period with respect to such 1997-B Lease, which sums the Obligor
has instructed the Servicer to apply to Monthly Lease Payments due in one or
more immediately subsequent Collection Periods.
"Permitted Investments" has the meaning set forth in the
Securitization Trust Agreement.
"Person" means any legal person, including any individual,
corporation, partnership, joint venture, limited liability company, association,
joint stock company, trust, bank, trust company, estate (including any
beneficiaries thereof), unincorporated organization or government or any agency
or political subdivision thereof.
"Prepayment" means: (a) payment to the Servicer of 100% of the
Outstanding Principal Balance of a 1997-B Lease (exclusive of any 1997-B Lease
referred to in the definition of the term "Charged-off Lease") or such lesser
amount as may be provided for in such 1997-B Lease, including any related
payment of interest, or (b) payment by the Servicer to the Trustee, on behalf of
the Trust, of any amount required to be deposited by the Servicer into the
1997-B SUBI Collection Account pursuant to Section 8.03 of the Servicing
Supplement.
"Principal Collections" means, with respect to any Collection
Period, all Collections received during or allocable to such Collection Period
allocable to the principal component of any 1997-B Lease (including any payment
in respect of the Booked Residual Value of the related 1997-B Leased Vehicle,
but expressly not including Collections with regard to which a Loss Amount (as
defined in the Securitization Trust Agreement) has already accrued); provided,
however, that, solely for purposes of calculating Principal Collections, the
principal portion of Monthly Lease Payments included in such Collections arising
from a Discounted Lease will be discounted on a present value basis at the
Discount Rate.
"Repossessed Vehicle Expenses" means reasonable out-of-pocket
expenses incurred by the Servicer in connection with the sale or other
disposition of a 1997-B Leased Vehicle that has been repossessed by the Servicer
or has been returned to the Servicer for sale or other disposition, other than
for inclusion in Matured Leased Vehicle Inventory.
"Repossessed Vehicle Proceeds" means gross amounts received by
the Servicer or the Trustee, on behalf of the Trust (before reimbursement for
Repossessed Vehicle Expenses) in connection with the sale or other disposition
of a 1997-B Leased Vehicle that has been
15
19
repossessed by the Servicer or has been returned to the Servicer for sale or
other disposition in connection with a Prepayment of the related 1997-B Lease.
"Residual Value Surplus Account" means the separate account
established and maintained by the Indenture Trustee pursuant to Section
12.03(a).
"Revolving Period" means the period from the Initial Cutoff
Date to but not including the earlier of [__________], 1998 and the day on which
an Early Amortization Event (as defined in the Securitization Trust Agreement)
occurs.
"Securitization Trust Agreement" has the meaning set forth in
Recital F.
"Securitization Trust Documents" means and includes the Trust
Agreement, the Servicing Agreement, this Supplement, the Servicing Supplement,
the SUBI Certificate Agreement, the Securitization Trust Agreement, the
Indenture, the Backup Security Agreement, the 1997-B SUBI Certificates, the
Notes and the Certificates, as the same may be amended, supplemented or modified
from time to time, and each to the extent that it relates to the 1997-B SUBI
(but specifically not including any such amendment, supplement or modification
that relates only to the UTI or to one or more SUBIs other than the 1997-B
SUBI).
"Security Deposit" means, with respect to any 1997-B Lease,
the refundable security deposit specified in such 1997-B Lease.
"Servicer" has the meaning set forth in Recital B.
"Servicer Reimbursement" has the meaning set forth in the
Servicing Supplement.
"Servicing Agreement" has the meaning set forth in Recital B.
"Servicing Fee" has the meaning set forth in the Servicing
Agreement, as modified or waived pursuant to Section 9.06 of the Servicing
Supplement.
"Servicing Supplement" has the meaning set forth in Recital H.
"SUBI Certificate Agreement" has the meaning set forth in
Recital E.
"Subsequent Cutoff Date" means, with respect to any Lease and
Leased Vehicle allocated to the 1997-B SUBI Portfolio on a Transfer Date, the
last day of the preceding calendar month.
"Transfer Date" means any Business Day in any calendar month
following a Collection Period in the Revolving Period, on or prior to the
twenty-fifth calendar day of that calendar month (beginning [_______] 1997)
specified as such by the Servicer in its notice and certificate pursuant to
Section 8.02(b) of the Servicing Supplement.
16
20
"Transferor" has the meaning set forth in Recital E.
"Trust" has the meaning set forth in Recital A.
"Trust Agreement" has the meaning set forth in Recital A.
"Trustee" has the meaning set forth in the Preamble.
"Unallocated Principal Collections" has the meaning set forth
in Section 11.02(d).
"Undistributed Transferor Excess Collections" has the meaning
set forth in the Securitization Trust Agreement.
"U.S. Bank" has the meaning set forth in the Preamble.
"WOFCO" has the meaning set forth in Recital A.
SECTION 10.02. RIGHTS IN RESPECT OF 1997-B SUBI.
Each holder of a 1997-B SUBI Certificate (including the Owner
Trustee) and each pledgee of a 1997-B SUBI Certificate (including the Indenture
Trustee, on behalf of the Noteholders) is a third-party beneficiary of the Trust
Agreement and this Supplement, insofar as they apply to the 1997-B SUBI and the
holders or pledgees of 1997-B SUBI Certificates. Therefore, to that extent,
references in the Trust Agreement to the ability of any "holder of a SUBI
Certificate", "assignee of a SUBI Certificate" or the like to take any action
shall be deemed to refer to the Owner Trustee acting with the consent or upon
the instruction of the Indenture Trustee acting at its own instigation or upon
the instruction of Noteholders representing more than 50% of the aggregate
Percentage Interests (acting as a single class) during such time as any Note
shall remain outstanding and, if no Notes remain outstanding, shall be deemed to
refer to the Owner Trustee acting at its own instigation or upon the instruction
of the Transferor.
PART XI
CREATION OF 1997-B SUBI
SECTION 11.01. INITIAL CREATION OF 1997-B SUBI
PORTFOLIO AND 1997-B SUBI.
(a) Pursuant to Section 4.02(a) of the Trust Agreement, the
Beneficiary hereby directs the Trustee to identify and allocate or cause to be
identified and allocated on the books and records of the Trust an initial
separate portfolio of SUBI Assets consisting of Leases, related Leased Vehicles
and other associated Trust Assets to be accounted for and held in trust
independently from all other Trust Assets within the Trust, all of which Trust
Assets shall consist of: (i) Leases that are Eligible Leases as of the Initial
Cutoff Date, including the related Contract
17
21
Rights and the related Leased Vehicles, with an Aggregate Net Investment Value
(as defined in the Securitization Trust Agreement) as of the Initial Cutoff Date
of $__________; (ii) all other Trust Assets related to the foregoing, including
(A) the 1997-B SUBI Collection Account and the Residual Value Surplus Account,
including all cash and Permitted Investments therein and all income from the
investment of funds therein; (B) the Residual Value Insurance Policy and all
Contingent and Excess Liability Insurance Policies to the extent applicable to
such Leases and Leased Vehicles; (C) the right to proceeds from physical damage,
credit life and disability insurance policies, if any, covering such Leases,
Leased Vehicles or Obligors with respect thereto, as the case may be; (D) the
right to receive the proceeds of all Dealer repurchase obligations, if any,
relating to any such Lease or Leased Vehicle; and (E) all proceeds of the
conversion, voluntary or involuntary, of any of the foregoing into cash or other
property. Based upon their identification and allocation by the Servicer
pursuant to the Servicing Supplement, the Trustee hereby identifies and
allocates as SUBI Assets the portfolio of Leases and Leased Vehicles more
particularly described on Exhibit A hereto, and the related Trust Assets
described above, each such SUBI Asset to be identified on the books and accounts
of the Trust as belonging to the 1997-B SUBI Portfolio (such Leases and Leased
Vehicles, together with those additional Leases and Leased Vehicles allocated to
the 1997-B SUBI Portfolio during the Revolving Period, the "1997-B Leases" and
the "1997-B Leased Vehicles", respectively, and, together with those other Trust
Assets so allocated either initially or during the Revolving Period pursuant to
Section 2.02 hereof, the "1997-B SUBI Assets"). In addition to the conveyance of
such 1997-B SUBI Assets to the Trust pursuant to Section 2.01 of the Trust
Agreement, the Grantor does hereby grant to the Trustee a security interest
therein, and the Trustee shall have all of the rights, powers and privileges of
a secured party under the UCC.
(b) Also pursuant to Section 4.02(a) of the Trust Agreement,
the Trustee hereby creates a SUBI which shall be known as the "1997-B SUBI". The
1997-B SUBI shall represent a specific divided beneficial interest solely in the
1997-B SUBI Portfolio and the 1997- B SUBI Assets.
(c) As required by Section 4.02(d) of the Trust Agreement, the
Beneficiary will certify to the Trustee as of the date of execution and delivery
hereof that (i) the sole pledgee of the Undivided Trust Interest has received
prior notice of the creation of the 1997-B SUBI Portfolio and of the terms and
provisions of (x) this Supplement and (y) the Securitized Financing contemplated
by the 1997-B Securitization Trust Agreement and (ii) after giving effect to the
creation of the 1997-B SUBI, the transfer to the Beneficiary of both 1997-B SUBI
Certificates and the application by the Beneficiary of the proceeds of that
Securitized Financing, no event of default (matured or unmatured) shall exist
under any Securitized Financing involving a UTI Pledge.
SECTION 11.02. SUBSEQUENT ADDITIONS TO 1997-B SUBI PORTFOLIO.
(a) The Beneficiary hereby directs the Trustee, as of each
Transfer Date, to cause to be (i) identified on the books and records of the
Trust from among all those Leases, Leased Vehicles and other associated Trust
Assets then owned by the Trustee on behalf of the
18
22
Trust and not allocated to, or reserved for allocation to, any SUBI (or, in the
circumstances contemplated in Section 7.03 of the Trust Agreement or Section
11.02(e) below, acquired by the Trustee on behalf of the Trust but not yet
allocated to, or reserved for allocation to, any specific Portfolio) and (ii)
allocated to the 1997-B SUBI Portfolio effective as of the relevant Subsequent
Cutoff Date as additional 1997-B Leases, 1997-B Leased Vehicles and 1997-B SUBI
Assets, such further 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)) as shall have an aggregate Discounted Principal
Balance of not more than the aggregate amount of all Principal Collections (and
amounts treated as Principal Collections pursuant to the last sentence of
Section 3.03(b)) received from the Initial Cutoff Date through the end of the
most recent Collection Period that have not yet been so reinvested in additional
1997-B Leases, 1997-B Leased Vehicles and related 1997-B SUBI Assets, all on a
"first-in, first-out" basis based on the date of origination (other than as
provided in Section 11.08 herein); provided, however, that (y) after giving
effect to such reallocation, no event of default (matured or unmatured) shall
exist under any Securitized Financing involving a UTI Pledge, and (z) prior to
such reallocation, the Servicer shall have provided the Officer's Certificate
required by Section 8.02(b) of the Servicing Supplement.
(b) Pursuant to subsection (a) above, the Trustee agrees, as
of each Transfer Date, to cause the Servicer to identify such further Eligible
Leases, related Leased Vehicles and other associated Trust Assets as described
in Section 11.02(a) and thereafter to allocate them to the 1997-B SUBI
Portfolio.
(c) Except in the circumstances set forth in Section 7.03 of
the Trust Agreement or Section 12.02 below, the Trustee shall direct the
Servicer, pursuant to Section 8.02(c) of the Servicing Supplement, effective as
of each Transfer Date, to transfer or cause to be transferred from the 1997-B
SUBI Collection Account to the Lease Funding Account an amount equal to the
aggregate Discounted Principal Balance as of the related Subsequent Cutoff Date
of the 1997-B Leases then being added to the 1997-B SUBI Portfolio pursuant to
Section 11.02(a) hereof.
(d) To the extent that, for any reason, the additional 1997-B
Leases allocated to the 1997-B SUBI Portfolio on any Transfer Date shall have an
aggregate Discounted Principal Balance, measured as of the Subsequent Cutoff
Date, that is less than the aggregate amount of all Principal Collections (and
amounts treated as Principal Collections pursuant to the last sentence of
Section 3.03(b)) received since the Initial Cutoff Date and prior to the
termination of the Revolving Period which have not yet been reinvested in
additional 1997-B Leases, 1997-B Leased Vehicles and related 1997-B SUBI Assets,
the balance of such Principal Collections and other amounts ("Unallocated
Principal Collections") shall continue to be invested and reinvested in
Permitted Investments as part of the 1997-B SUBI Portfolio until the earliest of
(i) the reinvestment of such unallocated Principal Collections on a subsequent
Transfer Date, (ii) the date on which an Early Amortization Event occurs or
(iii) the _______l 1998 Distribution Date (in the cases of clauses (ii) and
(iii), at which time such funds shall be treated as Principal Collections
collected during the Amortization Period).
19
23
(e) In the circumstances set forth in Section 7.03 of the
Trust Agreement or Section 12.02 of this Supplement, the Trustee shall direct
the Servicer, pursuant to Section 8.02(d) of the Servicing Supplement, effective
as of each Transfer Date, to transfer from the 1997-B SUBI Collection Account to
the 1997-B SUBI Lease Account those Principal Collections (and amounts treated
as Principal Collections pursuant to the last sentence of Section 3.03(b))
received since the Initial Cutoff Date that have not yet been reinvested in
additional 1997-B Leases, 1997-B Leased Vehicles and related 1997-B SUBI Assets,
to be applied in accordance with Section 7.03 of the Trust Agreement.
(f) Neither any interest in the 1997-B SUBI nor any 1997-B
SUBI Certificate may be transferred or assigned by the Beneficiary, and any such
purported transfer or assignment shall be deemed null, void and of no effect
herewith, provided, however, that (i) the 1997-B SUBI and the 1997-B SUBI
Certificates may be sold to the Transferor pursuant to the SUBI Certificate
Agreement, and (ii) the 99.8% 1997-B SUBI Certificate and the interest in the
1997- B SUBI represented thereby may be assigned by the Transferor absolutely or
a security interest therein granted in connection with a Securitized Financing,
in each case in the circumstances contemplated in Section 4.02(c) of the Trust
Agreement. Such a transfer is registrable upon surrender of the relevant 1997-B
SUBI Certificate for registration of transfer at the corporate trust office of
the Trustee (or the Trust Agent, if applicable) or by any successor Trustee,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the holder thereof or such holder's attorney duly
authorized in writing, and thereupon one or more new 1997-B SUBI Certificates of
a like aggregate fractional undivided interest will be issued to the designated
permitted transferee.
SECTION 11.03. ISSUANCE AND FORM OF 1997-B SUBI CERTIFICATES.
(a) The 1997-B SUBI shall be represented by two 1997-B SUBI
Certificates: the 99.8% 1997-B SUBI Certificate, and the 0.2% 1997-B SUBI
Certificate, each of which shall represent a beneficial interest in the 1997-B
SUBI and the 1997-B SUBI Portfolio, as further set forth herein. The 1997-B SUBI
Certificates shall be substantially in the form of Exhibit B attached hereto,
with such appropriate insertions, omissions, substitutions and other variations
as are required by this Supplement and may have such letters, numbers or other
marks of identification and such legends and endorsements placed thereon as may,
consistently herewith and with the Trust Agreement, be directed by the
Beneficiary. Any portion of the 1997-B SUBI Certificates may be set forth on the
reverse thereof, in which case the following reference to the portion of the
text on the reverse shall be inserted on the face thereof, in relative proximity
to and prior to the signature of the Trustee executing such certificate:
"Reference is hereby made to the further provisions
of this SUBI Certificate set forth on the reverse
hereof, which provisions shall for all purposes have
the same effect as if set forth at this place."
20
24
The 1997-B SUBI Certificates shall be printed, lithographed, typewritten,
mimeographed, photocopied or otherwise produced or may be produced in any other
manner as may, consistently herewith and with the Trust Agreement, be determined
by the Beneficiary.
(b) As required by Section 4.02(b) of the Trust Agreement,
each 1997-B SUBI Certificate shall contain an express written waiver of any
claim by any holder thereof or owner of a beneficial interest or security
interest therein to any proceeds or assets of the Trustee and to all of the
Trust Assets other than those from time to time included within the 1997-B SUBI
Portfolio as 1997-B SUBI Assets and those proceeds or assets derived from or
earned by such 1997-B SUBI Assets.
SECTION 11.04. ACTIONS AND FILINGS.
The Beneficiary hereby directs the Trustee to enter into the
Backup Security Agreement as a protective device. The Grantor and the Trustee
will undertake all other and future actions and activities as may be deemed
reasonably necessary by the Servicer (pursuant to Section 8.04 of the Servicing
Supplement) to perfect (or evidence) and confirm the foregoing allocations of
Trust Assets to the 1997-B 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 and delivering all related
filings, documents or writings as may be deemed reasonably necessary by the
Servicer hereunder or under any other Securitization Trust Documents (including
the Indenture and the Backup Security Agreement); provided, however, that in no
event will the Grantor or the Trustee be required to take any action to perfect
any security interest that may be held by the Owner Trustee or the Indenture
Trustee in any 1997-B Leased Vehicle. The Grantor hereby irrevocably makes and
appoints each of the Trustee and the Servicer, and any of their respective
officers, employees or agents, as the true and lawful attorney-in-fact of the
Grantor (which appointment is coupled with an interest and is irrevocable) with
power to sign on behalf of the Grantor any financing statements, continuation
statements, security agreements, mortgages, assignments, affidavits, letters of
authority, notices or similar documents necessary or appropriate to be executed
or filed pursuant to this Section.
SECTION 11.05. TERMINATION OF 1997-B SUBI.
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 succession of the Transferor to all of
the interest in the 1997-B SUBI represented by the 1997-B SUBI Certificates,
should all of the interest in the 1997-B SUBI thereafter be transferred to the
UTI Holder, whether by sale or otherwise, then upon the direction of the UTI
Holder the 1997-B SUBI shall be terminated, the 1997-B SUBI Certificates shall
be returned to the Trustee and canceled thereby, and (pursuant to Section
12.01(a) of the Servicing Supplement) the Servicer shall reallocate all 1997-B
Leases, 1997-B Leased Vehicles and related 1997-B SUBI Assets to the UTI
Portfolio.
21
25
SECTION 11.06. MERGER OR CONSOLIDATION OF TRUSTEE.
The Trustee shall give notice to each Rating Agency (as
defined in the Securitization Trust Agreement) prior to effecting any merger,
consolidation, or other transaction set forth in Section 6.05 of the Trust
Agreement.
SECTION 11.07. REPRESENTATIONS AND WARRANTIES OF TRUSTEE.
The Trustee hereby makes the following representations and
warranties on which the Grantor and Beneficiary, each of their permitted
assignees and pledgees, and each pledgee or holder of a 1997-B SUBI Certificate
(and beneficial owner of any portion thereof in connection with a Securitized
Financing, including the Owner Trustee, the Indenture Trustee and the
Noteholders) may rely:
(a) Organization and Good Standing. The Trustee is a
corporation, duly organized, validly existing and in good standing under the law
of the State of Alabama and is qualified to do business as a foreign corporation
and is in good standing in each of Florida, Georgia, North Carolina and South
Carolina;
(b) Power and Authority. The Trustee has full power, authority
and right to execute, deliver and (assuming that the filings set forth on
Schedule A to the Trust Agreement are sufficient to allow the Trustee to act as
a trustee with respect to the Trust Assets and otherwise perform this Supplement
in each of Alabama, Florida, Georgia, North Carolina, South Carolina,
California, Illinois, New Jersey, and Pennsylvania, and in all material respects
in any other jurisdiction) perform this Supplement (in all material respects
outside of the nine states set forth above) and has taken all necessary action
to authorize the execution, delivery and performance by it of this Supplement;
(c) Due Execution. This Supplement has been duly executed and
delivered by the Trustee, and is a legal, valid and binding instrument
enforceable against the Trustee in accordance with its terms;
(d) No Conflict. 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 Trustee or the articles of incorporation or bylaws of the Trustee
or any provision of any mortgage, indenture, contract, agreement or other
instrument to which the Trustee is a party or by which it is bound; and
(e) Single Purpose. The Trustee has not engaged, is not
currently engaged, and will not engage during the term of this Agreement in any
other activity other than serving as Trustee and in such ancillary activities as
are necessary and proper in order to act as Trustee in accordance with the Trust
Agreement and this Supplement.
22
26
SECTION 11.08. OTHER SUBIS.
The Trustee will not create any SUBI other than the 1997-B
SUBI during the Revolving Period unless the Trustee has received from the
Servicer an Officer's Certificate certifying that the creation of such other
SUBI would not cause an Early Amortization Event (as defined in the
Securitization Trust Agreement). The Trustee will not allocate to any SUBI other
than the 1997-B SUBI any Leases, Leased Vehicles or associated Trust Assets
booked on the Servicer's records from __________, 1997 through __________, 1997
that would be eligible to be allocated as 1997-B SUBI Assets until the Revolving
Period has terminated and all Principal Collections collected during the
Revolving Period have been reinvested in additional Leases, Leased Vehicles and
associated Trust Assets pursuant to Section 11.02. In the event that the Trustee
at any time during the Revolving Period also is allocating Trust Assets to one
or more other SUBIs pursuant to similar revolving periods (from the Trust Assets
generally, not from blocks of Trust Assets reserved for allocation to particular
SUBIs), the Trustee first shall allocate available Trust Assets to SUBIs created
prior to the 1997-B SUBI before allocating Trust Assets to the 1997-B SUBI.
SECTION 11.09. RETAINED SUBI INTEREST.
The Beneficiary or a Special Purpose Affiliate, as applicable,
shall at all times maintain with respect to the 1997-B SUBI at a minimum a
two-tenths of one percent (0.2%) interest in the 1997-B SUBI and the related
1997-B SUBI Portfolio, including (a) a two-tenths of one percent (0.2%) interest
in each material item of income, gain, loss, deduction or credit with respect to
the 1997-B SUBI and 1997-B SUBI Portfolio, and (b) a capital account balance (or
capital investment) in the 1997-B SUBI and 1997-B SUBI Portfolio at least equal
to two-tenths of one percent (0.2%) of the aggregate capital account balances
(or capital investments) therein.
SECTION 11.10. MINIMUM NET WORTH.
Notwithstanding anything to the contrary in Section 4.03 of
the Trust Agreement, the Grantor (or if Grantor is a partnership, the general
partner of Grantor) shall at all times maintain a minimum net worth of $10
million.
PART XII
SUBI ACCOUNTS
SECTION 12.01. 1997-B SUBI COLLECTION ACCOUNT.
(a) The Trustee shall establish and maintain with respect to
the 1997-B SUBI a "1997-B SUBI Collection Account" in the name of the Indenture
Trustee, for the benefit of the holders of the Notes and the holders of 1997-B
SUBI Certificates, which account shall constitute a SUBI Collection Account. The
1997-B SUBI Collection Account initially shall be established with the Indenture
Trustee, and at all times shall be an Eligible Account. In the event that
23
27
the Indenture Trustee no longer meets the requirements stated in the definition
of "Eligible Account", then the Servicer shall, with the Trustee's assistance as
necessary, cause the 1997-B SUBI Collection Account to be moved to a bank or
trust company that satisfies those requirements. The 1997-B SUBI Collection
Account shall relate solely to the 1997-B SUBI and the 1997-B SUBI Portfolio,
and funds therein shall not be commingled with any other moneys, except as
otherwise provided for or contemplated in the Trust Agreement as supplemented by
this Supplement or in the Servicing Agreement as supplemented by the Servicing
Supplement. All amounts held in the 1997-B SUBI Collection Account shall be
invested in Permitted Investments in accordance with Section 7.01(d) of the
Trust Agreement and Section 11.02(d) hereof until distributed or otherwise
applied in accordance with the Trust Agreement or this Supplement. The Trustee
hereby grants a security interest in the 1997-B SUBI Collection Account, and all
Permitted Investments therein to the Indenture Trustee for the benefit of the
holder of the Notes.
(b) On each Deposit Date, the Indenture Trustee shall transfer
or cause the transfer from the 1997-B SUBI Collection Account to the Residual
Value Surplus Account of any excess of Net Matured Leased Vehicle Proceeds (for
these purposes, calculated without subtracting any amounts transferred pursuant
to this subsection (b)) for the related Collection Period over the sum of the
Booked Residual Values of all Matured Vehicles sold or otherwise disposed of
from Matured Leased Vehicle Inventory during the related Collection Period.
(c) On each Deposit Date the Indenture Trustee shall transfer
or cause the transfer of all Principal Collections and Interest Collections in
the 1997-B SUBI Collection Account with respect to the related Collection Period
to the holders of the 1997-B SUBI Certificates (and more particularly, with
regard to the 99.8% 1997-B SUBI Certificate, to the Distribution Account), pro
rata in proportion to the relative percentage of the 1997-B SUBI represented by
each; provided, however, that on each Deposit Date related to a Collection
Period in the Revolving Period, the Indenture Trustee shall withhold from any
such transfers all Principal Collections, all of which shall be applied solely
as provided for in Section 11.02 hereof. After the last Deposit Date related to
a Collection Period in the Revolving Period, Principal Collections shall be
included in calculating and making any such transfers.
(d) The Trustee shall provide in the Servicing Supplement that
the Servicer shall prepare all such calculations and provide for all such
transfers as are provided for in this Section 12.01.
(e) Any transfer to the holder of the 99.8% 1997-B SUBI
Certificate shall be made as directed pursuant to the Securitization Trust
Documents. Any transfer to the holder of the 0.2% 1997-B SUBI Certificate shall
be made at the direction of such holder.
(f) Notwithstanding Section 7.01(b) of the Trust Agreement and
Section 2.02 of the Servicing Agreement, the Trustee may provide in the
Servicing Supplement that, in the event the Servicer provides to the
Beneficiary, the Transferor, the Trustee, the Owner Trustee and the Indenture
Trustee a letter from each Rating Agency to the effect that the utilization by
24
28
the Servicer of an alternative remittance schedule with respect to collections
arising out of the 1997-B SUBI Portfolio to be deposited in the 1997-B 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 (as defined in such Servicing Supplement)
satisfactory to each such Rating Agency (as defined in the Securitization Trust
Agreement)) will not result in a qualification, downgrading or withdrawal of the
then-current rating assigned to the Rated Securities (as defined in the
Securitization Trust Agreement) by such Rating Agency, (i) the Servicing
Supplement may be so modified without the consent of any Noteholders pursuant to
Section 12.02 thereof and (ii) the Servicer may remit such collections to the
1997-B SUBI Collection Account in accordance with that alternative remittance
schedule.
(g) Notwithstanding Section 5.05 or 7.01(c) or any other
provision of the Trust Agreement, the rights of the Trustee to be indemnified or
reimbursed for Administrative Expenses of the Trust incurred in connection with
or allocated to the 1997-B SUBI shall be limited to those Capped Origination
Trust Administrative Expenses as may be deducted from Collections in accordance
with the definition of "Interest Collections", any reimbursement of Uncapped
Administrative Expenses (as defined in the Securitization Trust Agreement) as
may be available pursuant to Section 3.03(b) of the Securitization Trust
Agreement, any advance of Administrative Expenses as may be available pursuant
to Section 9.05(a) of the Servicing Supplement, and any indemnity as may be
available pursuant to Section 2.07(g) of the Servicing Agreement.
SECTION 12.02. 1997-B SUBI LEASE ACCOUNT.
(a) In the circumstances set forth in Section 7.03 of the
Trust Agreement, the Trustee shall establish and maintain with respect to the
1997-B SUBI a "1997-B SUBI Lease Account" in the name of the Indenture Trustee,
for the benefit of the holders of the Notes and the holders of the 1997-B SUBI
Certificates, which account shall constitute a SUBI Lease Account. Any 1997-B
SUBI Lease Account initially shall be established with the Indenture Trustee and
at all times shall be an Eligible Account. In the event that the Indenture
Trustee no longer meets the requirements stated in the definition of "Eligible
Account", then the Servicer shall, with the Indenture Trustee's assistance as
necessary, cause the 1997-B SUBI Lease Account to be moved to a bank or trust
company that satisfies those requirements. The 1997-B SUBI Lease Account shall
relate solely to the 1997-B SUBI and the 1997-B SUBI Portfolio, and funds
therein shall not be commingled with any other moneys, except as otherwise
provided for or contemplated in the Trust Agreement as supplemented by this
Supplement or in the Servicing Agreement as supplemented by the Servicing
Supplement. All amounts held in the 1997-B SUBI Lease Account shall be invested
in Permitted Investments in accordance with Section 7.01(d) of the Trust
Agreement and Section 11.02(d) hereof until distributed or otherwise applied in
accordance with the Trust Agreement or this Supplement. The Trustee hereby
grants a security interest in any 1997-B SUBI Lease Account, and all Permitted
Investments therein, to the Indenture Trustee for the benefit of the holders of
the Notes.
25
29
(b) All transfers of funds into and out of the 1997-B SUBI
Lease Account shall be made in accordance with Section 7.03 of the Trust
Agreement.
SECTION 12.03. RESIDUAL VALUE SURPLUS ACCOUNT.
(a) The Trustee shall establish and maintain with respect to
the 1997-B SUBI a "Residual Value Surplus Account" in the name of the Indenture
Trustee, for the benefit of the holders of the Notes and the holders of 1997-B
SUBI Certificates of the Trust. The Residual Value Surplus Account initially
shall be established with the Indenture Trustee, and at all times shall be an
Eligible Account. In the event that the Indenture Trustee no longer meets the
requirements stated in the definition of "Eligible Account", then the Servicer
shall, with the Indenture Trustee's assistance as necessary, cause the Residual
Value Surplus Account to be moved to a bank or trust company that satisfies
those requirements. The Residual Value Surplus Account shall relate solely to
the 1997-B SUBI and the 1997-B SUBI Portfolio, and funds therein shall not be
commingled with any other moneys, except as otherwise provided for or
contemplated in the Trust Agreement as supplemented by this Supplement or in the
Servicing Agreement as supplemented by the Servicing Supplement. All amounts
held in the Residual Value Surplus Account shall be invested in Permitted
Investments in accordance with Section 7.01(d) of the Trust Agreement and
Section 11.02(d) hereof until distributed or otherwise applied in accordance
with the Trust Agreement or this Supplement. The Trustee hereby grants a
security interest in the Residual Value Surplus Account, and all Permitted
Investments therein, to the Indenture Trustee for the benefit of the holders of
the Notes.
(b) If, for any Collection Period, (i) any Matured Vehicle
included in Matured Leased Vehicle Inventory as of the last day of that
Collection Period has not been sold or otherwise disposed of by the Servicer for
at least two full Collection Periods, (ii) the sum of the Booked Residual Values
of all Matured Vehicles sold or otherwise disposed of from Matured Leased
Vehicle Inventory during that Collection Period exceeds Net Matured Leased
Vehicle Proceeds (for purposes hereof, calculated without including transfers
made pursuant to this subsection (b)), or (iii) any 1997-B Leases became Early
Termination Leases during such Collection Period, then on the related Deposit
Date, the Indenture Trustee shall transfer or cause the transfer from the
Residual Value Surplus Account to the 1997-B SUBI Collection Account of an
amount equal to the sum of (x) the Booked Residual Values of the Matured
Vehicles described in clause (i), (y) the excess described in clause (ii) and
(z) the sum of the Discounted Principal Balances, as of the end of such
Collection Period, of any Early Termination Leases described in clause (iii),
such Discounted Principal Balances calculated without reference to payments
received in the form of non-cash items.
(c) The Trustee shall provide in the Servicing Supplement that
the Servicer shall prepare all such calculations and provide for all such
transfers as are provided for in this Section 12.03.
26
30
SECTION 12.04. SERVICER CALCULATIONS.
Neither the Trustee nor the Indenture Trustee shall be under
any obligation to recalculate or reverify any calculations made by the Servicer
with respect to any amounts to be transferred by the Indenture Trustee pursuant
to this Part XII.
PART XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. AMENDMENT, ETC.
(a) Notwithstanding Section 9.01 of the Trust Agreement, the
Trust Agreement, as supplemented by this Supplement, to the extent that it deals
solely with the 1997- B SUBI and the 1997-B SUBI Portfolio, may be amended from
time to time only in a writing signed by the Trustee and the Beneficiary (and by
U.S. Bank to the extent that any such amendment affects it as Trust Agent), with
the prior written consent of the Indenture Trustee and the Owner Trustee (which
shall be given only in the circumstances contemplated by Section 9.01 of the
Securitization Trust Agreement).
(b) ALFI LP shall provide each Rating Agency (as defined in
the Securitization Trust Agreement) prior notice of the content of any proposed
amendment to the Trust Agreement, whether or not such amendment relates to the
1997-B SUBI or requires approval by any Rating Agency.
(c) No resignation or removal of the Trustee pursuant to
Section 6.03 of the Trust Agreement shall be effective unless and until each
Rating Agency has confirmed, in writing, that such resignation or removal would
not cause it to downgrade, withdraw, or otherwise adversely modify its
then-current rating of the Rated Notes.
(d) The holder from time to time of the Trustee Stock pursuant
to Section 6.10 of the Trust Agreement shall at all times be a corporation,
trust company or bank organized and doing business under the laws of such State
or the United States; authorized under such laws to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having a long-term deposit rating no lower than Baa3 by Moody's, so long as
▇▇▇▇▇'▇ is a Rating Agency or be otherwise acceptable to each Rating Agency, as
evidenced by a letter to such effect from each of them. If such holder shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time such holder shall
cease to be eligible in accordance with the provisions of this subsection (d),
it will immediately so notify the Beneficiary in the manner and with the effect
specified in Section 6.10(b) of the Trust Agreement.
27
31
SECTION 13.02. GOVERNING LAW.
THIS SUPPLEMENT SHALL BE CREATED UNDER AND GOVERNED BY AND
CONSTRUED UNDER THE INTERNAL LAWS OF THE STATE OF ALABAMA, WITHOUT REGARD TO ANY
OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 13.03. NOTICES.
The notice provisions of Section 9.03 of the Trust Agreement
shall apply equally to this Supplement, provided, that any notice to the
Indenture Trustee shall be addressed as follows:
U.S. Bank National Association
One Illinois Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention Corporate Trust Office
and any notice to the Owner Trustee shall be addressed as follows:
PNC Bank, Delaware
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Corporate Trust Department
A copy of each notice or other writing required to be delivered to the Trustee
pursuant to the Trust Agreement or this Supplement also shall be delivered to
the Owner Trustee and the Indenture Trustee.
SECTION 13.04. SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or
terms of this Supplement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Supplement and
shall in no way affect the validity or enforceability of the other provisions of
this Supplement or of any 1997-B SUBI Certificates or the rights of the holders
thereof. 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.
28
32
SECTION 13.05. EFFECT OF SUPPLEMENT ON TRUST AGREEMENT.
(a) Except as otherwise specifically provided herein: (i) the
parties shall continue to be bound by all provisions of the Trust Agreement; and
(ii) the provisions set forth herein shall operate either as additions to or
modifications of the already-extant obligations of the parties under the Trust
Agreement, as the context may require. In the event of any conflict between the
provisions of this Supplement and the Trust Agreement with respect to the 1997-B
SUBI, the provisions of this Supplement shall prevail.
(b) For purposes of determining the parties' obligations under
this Supplement with respect to the 1997-B SUBI, general references in the Trust
Agreement to: (i) a SUBI Account shall be deemed to refer more specifically to
the 1997-B SUBI Account; (ii) a SUBI Asset shall be deemed to refer more
specifically to a 1997-B SUBI Asset; (iii) an appropriate or applicable SUBI
Collection Account shall be deemed to refer more specifically to the 1997-B SUBI
Collection Account; (iv) an appropriate or applicable SUBI Lease Account shall
be deemed to refer more specifically to a 1997-B SUBI Lease Account; (v) a SUBI
Portfolio shall be deemed to refer more specifically to the 1997-B SUBI
Portfolio; (vi) a SUBI Supplement shall be deemed to refer more specifically to
this Supplement; and (vii) a SUBI Servicing Agreement Supplement shall be deemed
to refer more specifically to the Servicing Supplement.
[SIGNATURES ON NEXT PAGE]
29
33
IN WITNESS WHEREOF, the Grantor, the Trustee, and (solely for
the limited purposes set forth in Sections 5.03(e), 6.10 and 9.03 of the Trust
Agreement) U.S. Bank, have caused this Supplement to be duly executed by their
respective officers as of the day and year first above written.
AUTO LEASE FINANCE, L.P., Grantor and Beneficiary
By: AUTO LEASE FINANCE, INC., its general partner
By:
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Assistant Treasurer
VT INC., as Trustee
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
U.S. BANK NATIONAL ASSOCIATION, as Trust
Agent and Indenture Trustee
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
WORLD OMNI LEASE SECURITIZATION L.P.,
assignee of Beneficiary (solely to acknowledge the
provisions hereof)
By: WORLD OMNI LEASE SECURITIZATION, INC., its
general partner
By:
-------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Assistant Treasurer
30
34
COUNTY OF ▇▇▇▇ )
)
STATE OF ILLINOIS )
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, whose name as Assistant
Treasurer of Auto Lease Finance, Inc., a Delaware corporation, in its capacity
as the general partner of Auto Lease Finance, L.P., a Delaware limited
partnership, is signed to the foregoing instrument, and who is known to me,
acknowledged before me on this day, that, being informed of the contents
thereof, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation, acting in its capacity as
general partner as aforesaid.
Given under my hand and official seal, this the ___ day of __________,
1997.
--------------------------------------
(SEAL) NOTARY PUBLIC
My Commission Expires: __________
31
35
COUNTY OF ▇▇▇▇ )
)
STATE OF ILLINOIS )
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that _________________________, whose name as
_________________________ of VT Inc., an Alabama corporation, is signed to the
foregoing instrument, and who is known to me, acknowledged before me on this
day, that, being informed of the contents thereof, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal, this the ___ day of ___________,
1997.
--------------------------------------
(SEAL) NOTARY PUBLIC
My Commission Expires: __________
32
36
COUNTY OF ▇▇▇▇ )
)
STATE OF ILLINOIS )
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that _________________________, whose name as
_________________________ of U.S. Bank National Association, a national banking
association, is signed to the foregoing instrument, and who is known to me,
acknowledged before me on this day, that, being informed of the contents
thereof, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said national banking association.
Given under my hand and official seal, this the ___ day of _________,
1997.
--------------------------------------
(SEAL) NOTARY PUBLIC
My Commission Expires: __________
33
37
COUNTY OF ▇▇▇▇ )
)
STATE OF ILLINOIS )
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, whose name as Assistant
Treasurer of World Omni Lease Securitization, Inc., a Delaware corporation, in
its capacity as the general partner of World Omni Lease Securitization, L.P., a
Delaware limited partnership, is signed to the foregoing instrument, and who is
known to me, acknowledged before me on this day, that, being informed of the
contents thereof, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation, acting in its capacity as
general partner as aforesaid.
Given under my hand and official seal, this the ___ day of _________,
1997.
--------------------------------------
(SEAL) NOTARY PUBLIC
My Commission Expires: --------------
34
38
EXHIBIT A
SCHEDULE OF 1997-B LEASES AND
1997-B LEASED VEHICLES AS OF THE INITIAL CUTOFF DATE
[Omitted. Copies on file with the Servicer, the Trustee, the
Indenture Trustee and the Owner Trustee.]
A-1
39
EXHIBIT B
FORM OF 1997-B SUBI CERTIFICATES
WORLD OMNI LT
SPECIAL UNIT OF BENEFICIAL INTEREST 1997-B CERTIFICATE
evidencing a fractional undivided __% interest in all 1997-B SUBI
Assets (as defined below).
(This 1997-B SUBI Certificate does not represent an obligation of, or
an interest in, World Omni Financial Corp., Auto Lease Finance, Inc.,
Auto Lease Finance L.P. or any of their respective affiliates.)
Number 1997-B SUBI-__
THIS CERTIFIES THAT __________________________________ is the
registered owner of a nonassessable, fully-paid, fractional undivided interest
in the 1997-B SUBI Assets (such interest, a "1997-B SUBI Interest"), of World
Omni LT, an Alabama business trust (the "Trust") formed by Auto Lease Finance
L.P., a Delaware limited partnership, as grantor ("ALFI LP" or, in its capacity
as grantor thereunder, and, together with any successor or assign, the
"Grantor"), and VT Inc., an Alabama corporation, as trustee (the "Trustee"). The
Trust was created pursuant to a Trust Agreement dated and effective as of
November 1, 1993, as amended and restated pursuant to an Amended and Restated
Trust Agreement dated and effective as of June 1, 1994, as further amended and
restated pursuant to a Second Amended and Restated Trust Agreement dated and
effective as of July 1, 1994, and as further amended by that certain Amendment
No. 1 to Second Amended and Restated Trust Agreement dated as of November 1,
1994 (as so amended and restated, the "Trust Agreement"), among the Grantor,
ALFI LP as the sole initial beneficiary (in such capacity, and, together with
any successor or permitted assign, the "Beneficiary"), the Trustee, and, for
certain limited purposes set forth therein, U.S. Bank National Association, a
national banking association (formerly known as First Bank National Association
and successor to Bank of America Illinois, an Illinois banking corporation)
("U.S. Bank"), as supplemented by that certain 1997-B Supplement to Trust
Agreement dated and effective as of October 1, 1997 among the Grantor, the
Beneficiary, the Trustee, U.S. Bank and World Omni Lease Securitization L.P (the
"Transferor") (the Trust Agreement, as so supplemented, the "Agreement"). A
summary of certain of the pertinent portions of the Agreement is set forth
below. To the extent not otherwise defined herein, the capitalized terms herein
have the meanings set forth in the Agreement.
This 1997-B SUBI Certificate is one of the duly authorized certificates
issued under the Agreement and designated as "World Omni LT Special Unit of
Beneficial Interest 1997-B Certificates" (the "1997-B SUBI Certificates"). This
1997-B SUBI Certificate is issued under
B-1
40
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the holder of this 1997-B SUBI Certificate by virtue of the
acceptance hereof assents and by which such holder is bound. Also to be issued
under the Agreement are various other series of SUBI & UTI Certificates, the
first designated as "World Omni LT Undivided Trust Interest Certificates" (the
"Undivided Trust Interest Certificates"), and the others each designated as
"World Omni LT Special Unit of Beneficial Interest __ Certificates" (together
with the 1997-B SUBI Certificates, the "SUBI Certificates" and, together with
the Undivided Trust Interest Certificates, the "SUBI & UTI Certificates"). The
Undivided Trust Interest Certificates, taken together, evidence an exclusive,
undivided interest in the Trust Assets, other than SUBI Assets (each as defined
below); each other series of SUBI Certificates, taken together, will evidence an
exclusive undivided interest in a separate SUBI Portfolio (as defined below)
other than the 1997- B SUBI Portfolio.
The property of the Trust includes, or will include, among other
things: cash capital; certain fixed rate retail closed-end lease contracts (the
"Leases") of automobile and light-duty trucks (the "Leased Vehicles") originated
on or after November 1, 1993 by vehicle dealers ("Dealers") located within the
United States (to the extent permitted by law applicable to the Trustee or
otherwise) pursuant to dealer agreements entered into with the initial Grantor's
parent company, World Omni Financial Corp. ("WOFCO") (or, in certain
circumstances, by dealers or other Persons unaffiliated with WOFCO), and the
proceeds thereof; the Leased Vehicles and the proceeds thereof, including the
residual values thereof and the titles thereto; the right to proceeds of any
Dealer repurchase obligations relating to any Lease or Leased Vehicle; and
certain insurance policies or proceeds therefrom covering any Lease, Leased
Vehicles or a lessee under a Lease (such assets, together with any other assets
of the Trust, the "Trust Assets"). The Agreement provides that, from time to
time, certain of the Trust Assets will be identified and allocated on the
records of the Trust into one or more separate portfolios of Trust Assets (such
assets, "SUBI Assets" and each such portfolio, a "SUBI Portfolio"). The
beneficial interest in each such SUBI Portfolio will constitute a separate
"special unit of beneficial interest" ("SUBI") in the Trust. Pursuant to the
1997-B SUBI Supplement, various SUBI Assets (the "1997-B SUBI Assets") were
identified and allocated on the records of the Trust into a separate SUBI
Portfolio (the "1997-B SUBI Portfolio"), and the beneficial interest in the
1997-B SUBI Portfolio was designated as a separate SUBI known as the "1997-B
SUBI". The rights of the holder of this SUBI Certificate to certain of the
proceeds of the 1997-B SUBI Assets are and will be further set forth in the
Agreement.
The SUBI & UTI Certificates do not represent an obligation of, or an
interest in, the Grantor, WOFCO or any of their respective Affiliates. The SUBI
Certificates are limited in right of payment to certain collections and
recoveries respecting the Leases (and the related Obligors) and the Leased
Vehicles allocated to the 1997-B SUBI Portfolio, all to the extent and as more
specifically set forth in the Agreement. A copy of the Agreement may be examined
during normal business hours at the principal office of the Trustee, and at such
other places, if any, designated by the Trustee, by the holder hereof upon
request.
B-2
41
By accepting this SUBI Certificate, the holder hereof and all owners of
beneficial interests herein waives any claim to any proceeds or assets of the
Trustee and to all of the Trust Assets other than those from time to time
included within the 1997-B SUBI Portfolio as 1997-B SUBI Assets and those
proceeds or assets derived from or earned by such 1997-B SUBI Assets.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto with respect to the 1997- B SUBI Assets, the 1997-B SUBI
Portfolio and the 1997-B SUBI and the rights of holders of 1997-B SUBI
Certificates at any time by the Beneficiary and the Trustee, only with the
consent of U.S. Bank, as Trustee (the "Indenture Trustee") under that certain
Indenture dated as of October 1, 1997 between PNC Bank, Delaware, as trustee
(the "Owner Trustee") of the World Omni 1997-B Automobile Lease Securitization
Trust and the Indenture Trustee, as set forth in that certain Securitization
Trust Agreement dated as of October 1, 1997 (the "Securitization Trust
Agreement"), between the Transferor and the Owner Trustee, and with the consent
of the Owner Trustee. The Securitization Trust Agreement further provides that,
in certain limited circumstances, such consent may be given only with the
consent of the Holders of Notes evidencing more than 50% of the aggregate
Percentage Interests (as all such terms are defined in the Securitization Trust
Agreement), voting together as a single class. If approval of any holder of this
SUBI Certificate is required, any such consent shall be conclusive and binding
on such holder and on all future holders hereof and of any SUBI Certificate
issued upon the permitted transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this SUBI
Certificate.
As provided in the Agreement, this SUBI Certificate and the underlying
interests represented hereby may not be transferred or assigned, and any such
purported transfer or assignment shall be null, void, and of no effect, except
in connection with an absolute assignment or the grant of a security interest
pledge by the Transferor in connection with [(I)] a sale by the Beneficiary to
the Transferor[, OR (II) A SECURITIZED FINANCING]. [NOTE: BRACKETED LANGUAGE
ONLY IN 99.8% 1997-B SUBI CERTIFICATE.] Such a transfer of this SUBI Certificate
is registrable upon surrender of this SUBI Certificate for registration of
transfer at the corporate trust office of the Trustee (or the Trust Agent, if
applicable) or by any successor Trustee, accompanied by a written instrument of
transfer in form satisfactory to the Trustee duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new 1997-B SUBI Certificates of a like aggregate fractional undivided interest
will be issued to the designated permitted transferee.
Prior to due presentation of this SUBI Certificate for registration of
a permitted transfer, the Trustee, the certificate registrar and any of their
respective agents may treat the person or entity in whose name this SUBI
Certificate is registered as the owner hereof for the purpose of receiving
distributions and for all other purposes, and, except as provided for in the
Agreement, neither the Trustee, the certificate registrar nor any such agent
shall be affected by any notice to the contrary.
B-3
42
Unless this SUBI Certificate shall have been executed by an authorized
officer of the Trustee, by manual signature, this SUBI Certificate shall not
entitle the holder hereof to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this 1997-B SUBI Certificate to be duly executed.
Dated: WORLD OMNI LT
By: VT INC., as Trustee
(SEAL) By:
---------------------------------
Authorized Officer
ATTEST:
-------------------------
B-4
43
EXHIBIT C
FORMS OF 1997-B LEASE
C-1
44
EXHIBIT D
CREDIT AND COLLECTION POLICY
D-1