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EXHIBIT 10.4
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
DRAFT DATED 10/14/97
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VT INC.,
AS TRUSTEE OF
WORLD OMNI LT
AND
WORLD OMNI FINANCIAL CORP.
SUPPLEMENT 1997-B TO
SERVICING AGREEMENT
DATED AS OF OCTOBER 1, 1997
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TABLE OF CONTENTS
Page
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RECITALS.............................................................................................. 1
ARTICLE SIX........................................................................................... 3
DEFINITIONS........................................................................................... 3
Section 6.01. Definitions.............................................................. 3
ARTICLE SEVEN
REPRESENTATIONS AND WARRANTIES OF SERVICER............................................................ 7
Section 7.01. Organization and Standing................................................ 7
Section 7.02. Authorization, Execution and Delivery; No Conflicts...................... 7
Section 7.03. Approvals................................................................ 8
Section 7.04. Enforceability........................................................... 8
Section 7.05. Litigation............................................................... 8
Section 7.06. Representations to the RV Insurer........................................ 9
ARTICLE EIGHT
CREATION OF 1997-B SUBI............................................................................... 9
Section 8.01. Initial Creation of 1997-B SUBI Portfolio................................ 9
Section 8.02. Subsequent Additions to 1997-B SUBI Portfolio............................10
Section 8.03. Servicer Payment in Respect of Certain Leases and Leased
Vehicles.................................................................11
Section 8.04. Filings..................................................................12
ARTICLE NINE
SPECIFIC REQUIREMENTS FOR ADMINISTRATION AND SERVICING
OF LEASES IN 1997-B SUBI PORTFOLIO....................................................................13
Section 9.01. Servicer Bound by Servicing Agreement....................................13
Section 9.02. Collection of Monthly Lease Payments and Remittances;
Application of Proceeds; Accounts........................................14
Section 9.03. Records..................................................................19
Section 9.04. Advances.................................................................20
Section 9.05. Payment of Certain Fees and Expenses; No Offset..........................20
Section 9.06. Servicing Compensation...................................................21
Section 9.07. Repossession and Sale of Leased Vehicles.................................22
Section 9.08. Indemnification by Servicer..............................................22
Section 9.09. Third Party Claims.......................................................23
Section 9.10. Insurance Policies.......................................................23
Section 9.11. Servicer Not to Resign; Assignment.......................................24
Section 9.12. Obligor Insurance Coverage in Respect of Leased Vehicles.................25
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Section 9.13. Corporate Existence; Status; Merger.....................................26
Section 9.14. Mobile Leased Premises..................................................26
ARTICLE TEN
STATEMENTS AND REPORTS................................................................................27
Section 10.01. Reporting by the Servicer...............................................27
Section 10.02. Annual Accountants' Reports.............................................28
Section 10.03. Other Certificates and Notices from Servicer............................28
Section 10.04. Tax Returns...........................................................................28
ARTICLE ELEVEN
SERVICER DEFAULT......................................................................................29
Section 11.01. Events of Default; Termination of Servicer as to 1997-B
SUBI Portfolio..........................................................29
Section 11.02. No Effect on Other Parties..............................................33
ARTICLE TWELVE
MISCELLANEOUS.........................................................................................34
Section 12.01. Termination of Agreement................................................34
Section 12.02. Amendment...............................................................34
Section 12.03. Governing Law...........................................................35
Section 12.04. Notices.................................................................35
Section 12.05. Severability............................................................35
Section 12.06. Inspection and Audit Rights.............................................35
Section 12.07. Binding Effect..........................................................36
Section 12.08. Article and Section Headings............................................36
Section 12.09. Execution in Counterparts...............................................36
Section 12.10. Rights Cumulative.......................................................36
Section 12.11. Further Assurances......................................................36
Section 12.12. Third-Party Beneficiaries...............................................37
EXHIBITS
EXHIBIT A - Schedule of 1997-B Leases and 1997-B
Leased Vehicles as of the Initial Cutoff
Date...................................................................A-1
EXHIBIT B - Servicer's Certificate............................................................B-1
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SUPPLEMENT 1997-B TO
SERVICING AGREEMENT
SUPPLEMENT 1997-B TO SERVICING AGREEMENT (the "Supplement"),
dated as of October 1, 1997, between VT INC., an Alabama corporation, as trustee
(hereinafter, together with its successors and assigns, the "Origination
Trustee") of WORLD OMNI LT, an Alabama business trust (the "Origination Trust"),
and WORLD OMNI FINANCIAL CORP., a Florida corporation (the "Servicer").
RECITALS
A. Auto Lease Finance L.P. ("ALFI LP"), the Origination Trustee
and, for certain limited purposes set forth therein, U.S. Bank National
Association (formerly known as First Bank National Association and successor
trustee to Bank of America Illinois, an Illinois banking corporation) (together
with its successors, "U.S. Bank") have entered into that certain Second Amended
and Restated Trust Agreement dated as of July 1, 1994 (amending and restating
that certain original Trust Agreement dated as of November 1, 1993, among Auto
Lease Finance, Inc. ("ALFI"), the Origination Trustee and U.S. Bank, and that
certain Amended and Restated Trust Agreement dated as of June 1, 1994 among
ALFI, ALFI LP, the Origination Trustee and U.S. Bank) as amended by that certain
Amendment No. 1 to Second Amended and Restated Trust Agreement dated as of
November 1, 1994, among the same parties (as so amended and restated, and as it
may be further amended, supplemented or modified, the "Origination Trust
Agreement"), pursuant to which ALFI and the Origination Trustee formed the
Origination Trust for the purpose of taking assignments and conveyances of,
holding in trust and dealing in, various Trust Assets (as defined in the
Origination Trust Agreement) in accordance with the Origination Trust Agreement.
ALFI and the Servicer have entered into that certain Limited Partnership
Agreement dated as of June 1, 1994, as amended and restated by that certain
First Amended and Restated Limited Partnership Agreement dated as of July 1,
1994, pursuant to which ALFI LP was formed and ALFI contributed to ALFI LP all
of its right, title and interest in and to the Origination Trust.
B. The parties hereto also have entered into that certain Second
Amended and Restated Servicing Agreement dated as of July 1, 1994 (as the same
has been supplemented, is supplemented hereby and may be further amended,
supplemented or modified, the "Servicing Agreement"), amending and restating
that certain original Servicing Agreement dated as of November 1, 1993, and that
certain Amended and Restated Servicing Agreement dated as of June 1, 1994, which
provides for, among other things, the servicing of the Trust Assets by the
Servicer.
C. Concurrently herewith, and as contemplated by the Servicing
Agreement and the Origination Trust Agreement, ALFI LP, the Origination Trustee,
U.S. Bank and World Omni Lease Securitization L.P. (the "Transferor") are
entering into that certain Supplement 1997-B to Trust Agreement dated as of
October 1, 1997 (the "1997-B SUBI Supplement"), pursuant to which the
Origination Trustee, on behalf of the Origination Trust and at the direction
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of ALFI LP, which also will be at that time a beneficiary of the Origination
Trust, will create and issue to ALFI LP a special unit of beneficial interest in
the Origination Trust, or SUBI (as defined in the Origination Trust Agreement)
(such SUBI, the "1997-B SUBI"), whose beneficiaries generally will be entitled
to the net cash flow arising from, but only from, the related SUBI Portfolio (as
defined in the Origination Trust Agreement) (such SUBI Portfolio, the "1997-B
SUBI Portfolio"), a SUBI Certificate (as defined in the Origination Trust
Agreement) representing a 99.8% beneficial interest in the 1997-B SUBI (such
SUBI Certificate, the "99.8% 1997-B SUBI Certificate") and a SUBI Certificate
representing the remaining 0.2% beneficial interest in the 1997-B SUBI (such
SUBI Certificate, the "0.2% 1997-B SUBI Certificate" and, together with the
99.8% 1997-B SUBI Certificate and any replacements of either of them, the
"1997-B SUBI Certificates"), all as set forth in the Origination Trust Agreement
and the 1997-B SUBI Supplement.
D. Also concurrently herewith, ALFI LP and the Transferor are
entering into that certain SUBI Certificate Purchase and Sale Agreement dated as
of October 1, 1997, pursuant to which ALFI LP is selling to the Transferor,
without recourse, all of ALFI LP's right, title and interest in and to the
1997-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 ALFI LP of an amount equal to the Aggregate
Net Investment Value (as defined in the Securitization Trust Agreement) of the
1997-B SUBI Portfolio as of the Initial Cutoff Date (as defined in the 1997-B
SUBI Supplement).
E. Also concurrently herewith, and as contemplated by the
Servicing Agreement and the Origination Trust Agreement, the Transferor, PNC
Bank, Delaware, as owner trustee (the "Owner Trustee") and 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 the 99.8% 1997-B SUBI Certificate will be
transferred to the Owner Trustee, in that capacity and then pledged to the
Indenture Trustee, in that capacity, in connection with a Securitized Financing
(as defined in the Origination Trust Agreement) by the Transferor, but the 0.2%
1997-B SUBI Certificate will be retained by the Transferor and not used in
connection with such Securitized Financing.
F. 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 Trust will
issue the Notes (as defined below) and the Trust will grant a security interest
to the Indenture Trustee with respect to all of the Trust Estate.
G. The parties desire to supplement the terms of the Servicing
Agreement insofar as they apply to the 1997-B SUBI, the 1997-B SUBI Portfolio,
and the 1997-B SUBI Certificates to provide for further specific servicing
obligations that will benefit the holders of the 1997-B SUBI Certificates and
the parties to and the beneficiaries of the Securitized Financing contemplated
by the Securitization Trust Agreement, all as generally contemplated by the
Servicing Agreement.
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NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained and in the Servicing Agreement, the parties hereto
agree to the following supplemental obligations with regard to the 1997-B SUBI
Portfolio:
ARTICLE SIX
DEFINITIONS
SECTION 6.01. DEFINITIONS.
For all purposes of this Supplement, except as otherwise
expressly provided or unless the context otherwise requires, (a) unless
otherwise defined herein, all capitalized terms used herein shall have the
meanings attributed to them by Section 1.01 of the Servicing Agreement, by
Section 0.01 of the Origination Trust Agreement, by Section 13.01 of the 1997-B
SUBI Supplement, or by Section 1.01 of the Securitization Trust Agreement, as
applicable, (b) the capitalized terms defined in this Supplement have the
meanings assigned to them in this Supplement and include (i) all genders and
(ii) the plural as well as the singular, (c) all references to words such as
"herein", "hereof" and the like shall refer to this Supplement as a whole and
not to any particular article or section within this Supplement, (d) the term
"include" and all variations thereon shall mean "include without limitation",
(e) the term "or" shall include "and/or", and (f) any reference herein to the
"Origination Trustee, acting on behalf of the Origination Trust," or words of
similar import, shall be deemed to mean the Origination Trustee, acting on
behalf of the Origination Trust and all beneficiaries thereof.
"Advance" means, (i) with respect to all Delinquent Leases
included in the 1997- B SUBI Portfolio during a Collection Period, an aggregate
advance required to be made with respect to such Delinquent Leases, the amount
of which shall equal the sum of all Monthly Lease Payments due but not received
during such Collection Period; provided, however, that for purposes of this
definition, the term "Delinquent Lease" shall have the meaning set forth in the
1997-B SUBI Supplement, except that it shall refer to 1997-B Leases that are 31
days or more past due, not 61 days or more past due; and (ii) with respect to
Leases that are included in the 1997-B SUBI Portfolio during a Collection Period
but which are not Delinquent Leases, an aggregate advance permitted (but not
required) to be made with respect to any Monthly Lease Payments under such
Leases that are one or more days, but less than 31 days, past due.
"ALFI" and "ALFI LP" have the respective meanings set forth in
Recital A.
"Code" means the Internal Revenue Code of 1986, as amended.
"Current Liability" means, with respect to any Plan, the present
value of the accrued benefits under the Plan, as set forth in the most recent
audited consolidated financial statements of JM Family Enterprises, Inc. and its
subsidiaries.
"Eligible Servicer" means the Trust Agent or an entity that is
currently servicing a portfolio of automobile and/or light truck retail
installment lease contracts, that is legally
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qualified and has the capacity to service the 1997-B Leases and that has
demonstrated the ability to service a portfolio of similar lease contracts
professionally and competently in accordance with high standards of skill and
care.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute of similar import,
together with the regulations thereunder, in each case as in effect from time to
time. References to sections of ERISA shall be construed to refer also to any
successor sections.
"ERISA Affiliate" means each person (as defined in Section 3(9)
of ERISA) which, together with the identified person, would be deemed to be a
member of the same "controlled group" within the meaning of Section 414(b), (c),
(m) and (o) of the Code or Section 4001 of ERISA.
"Indenture" has the meaning set forth in Recital F.
"Indenture Trustee" has the meaning set forth in Recital E.
"1997-B SUBI" has the meaning set forth in Recital C.
"1997-B SUBI Account" means any SUBI Account related to the
1997-B SUBI.
"1997-B Servicer Event of Default" means any of the acts, events
or occurrences set forth in Section 11.01.
"1997-B SUBI Portfolio" has the meaning set forth in Recital C.
"1997-B SUBI Supplement" has the meaning set forth in Recital C.
"Nonrecoverable Advance" means any Advance that, in the
Servicer's reasonable judgment, may not be ultimately recoverable by the
Servicer from Matured Leased Vehicle Proceeds, Repossessed Vehicle Proceeds or
other Liquidation Proceeds or Insurance Proceeds, any Residual Value Insurance
Policy or otherwise.
"Origination Trust" has the meaning set forth in the Preamble.
"Origination Trust Agreement" has the meaning set forth in
Recital A.
"Origination Trust Expenses" has the meaning set forth in Section
9.02(f).
"Origination Trustee" has the meaning set forth in the Preamble.
"Owner Trustee" has the meaning set forth in Recital E.
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"Plan" means an "employee benefit plan," as such term is defined
in Section 3(3) of ERISA.
"Prospectus" means that certain prospectus dated _________, 1997
relating to the public offering of the Class A Notes issued by the
Securitization Trust.
"Residual Value Loss Determination Date" means, with respect to a
Collection Period, the fifteenth day of the following month, or if that day is
not a Business Day, the next Business Day, beginning with May 15, 1997.
"Securitization Trust" means the trust created by the
Securitization Trust Agreement.
"Securitization Trust Agreement" has the meaning set forth in
Recital E.
"Servicer Letter of Credit" means a letter of credit, surety bond
or insurance policy under which demands for payment may be made to secure timely
remittance by the Servicer of monthly collections received in respect of the
1997-B SUBI Assets to the 1997-B SUBI Collection Account.
"Servicer Reimbursement" has the meaning set forth in Section
9.02(g).
"Servicer's Certificate" has the meaning set forth in Section
10.01(b).
"Servicing Agreement" has the meaning set forth in Recital B.
"Supplement" has the meaning set forth in the Preamble.
"Transferor" has the meaning set forth in Recital C.
"Trust Agent" has the meaning set forth in the Preamble.
"Unfunded Current Liability" of any Plan means the amount, if
any, by which the present value of the accrued benefits under the Plan as of the
close of its most recent Plan year exceeds the value of the Plan's assets, which
value shall be determined as set forth in the most recent audited consolidated
financial statements of JM Family Enterprises, Inc. and its subsidiaries.
"U.S. Bank" has the meaning set forth in Recital A.
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ARTICLE SEVEN
REPRESENTATIONS AND WARRANTIES OF SERVICER
The Servicer represents and warrants to the Owner Trustee and
Indenture Trustee as follows:
SECTION 7.01. ORGANIZATION AND STANDING.
The Servicer: (i) is a corporation validly organized and existing
and in good standing under the laws of the State of Florida; (ii) has qualified
to do business as a foreign corporation and is in good standing in the State of
Alabama and any other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a material
adverse effect on the ability of the Servicer to carry out its obligations as
Servicer under the Servicing Agreement or this Supplement; (iii) has full power,
authority and legal right to own its property, to carry on its business as
presently conducted, and to enter into and perform its obligations under the
Servicing Agreement and this Supplement; and (iv) holds all requisite licenses
and permits, the absence of which would have a material adverse effect on its
ability to carry on its business as presently conducted.
SECTION 7.02. AUTHORIZATION, EXECUTION AND DELIVERY; NO
CONFLICTS.
The execution and delivery by the Servicer of this Supplement are
within the corporate power of the Servicer and have been duly authorized by all
necessary corporate action on the part of the Servicer. Neither the execution
and delivery of this Supplement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will conflict with or
result in a breach of, or constitute a default (with notice or passage of time
or both) under any provision of any law, governmental rule, regulation,
judgment, decree or order binding on the Servicer or its properties or the
articles of incorporation or bylaws of the Servicer, or any provision of any
indenture, mortgage, contract or other instrument to which the Servicer is a
party or by which it is bound, or result in the acceleration of any obligation
under, or the creation or imposition of any Lien upon, any of its property
pursuant to the terms of any such indenture, mortgage, contract or other
instrument.
SECTION 7.03. APPROVALS.
The Servicer has obtained or made all necessary licenses,
consents, approvals, waivers and notifications of creditors, lessors and other
nongovernmental persons, in each case in connection with the execution and
delivery of this Supplement and the consummation of all the transactions herein
contemplated, and the Servicer is not required to obtain the consent of any
other party or the consent, license, approval, waiver or authorization from, or
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Supplement.
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SECTION 7.04. ENFORCEABILITY.
This Supplement constitutes a legal, valid and binding instrument
enforceable against the Servicer in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance, and other similar laws relating
to the enforcement of creditors' rights generally and to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
SECTION 7.05. LITIGATION.
There are no actions, suits or proceedings pending or, to the
knowledge of the Servicer, threatened against or affecting the Servicer or any
Affiliate thereof, before or by any court, administrative agency, arbitrator or
governmental body with respect to any of the transactions contemplated by this
Supplement, or which will, if determined adversely to the Servicer or any such
Affiliate, materially and adversely affect the Servicer's ability to perform its
obligations hereunder. The Servicer is not in default with respect to any order
of any court, administrative agency, arbitrator or governmental body so as
materially and adversely to affect the transactions contemplated by this
Supplement.
SECTION 7.06. REPRESENTATIONS TO THE RV INSURER.
The Servicer has made no material misrepresentations to the RV
Insurer regarding any matter in the process of arranging for and negotiating the
terms of the Residual Value Insurance Policy.
ARTICLE EIGHT
CREATION OF 1997-B SUBI
SECTION 8.01. INITIAL CREATION OF 1997-B SUBI PORTFOLIO.
(a) Pursuant to Section 4.02 of the Origination Trust Agreement
and Section 11.01 of the 1997-B SUBI Supplement, the Origination Trustee has
been directed to cause to be identified and allocated on the books and records
of the Origination Trust an initial separate portfolio of SUBI Assets
consisting of Leases, related Leased Vehicles and other associated Trust
Assets, which Trust Assets shall meet the criteria specified therein. Pursuant
to Section 2.02(f) of the Servicing Agreement, the Origination Trustee, on
behalf of the Origination Trust, hereby directs that the Servicer so identify
and allocate such a separate portfolio of SUBI Assets consisting of Leases,
related Leased Vehicles and other associated Trust Assets from among all those
Leases, related Leased Vehicles and other associated Trust Assets owned by the
Origination Trustee, on behalf of the Origination Trust, and currently
accounted for as part of the Undivided Trust Interest.
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(b) Pursuant to subsection (a) above and Section 2.02(f) of the
Servicing Agreement, the Servicer hereby identifies and allocates the portfolio
of Leases, related Leased Vehicles and other associated Trust Assets (as
described in clauses (i) through (ii) of the first sentence of Section 11.01(a)
of the 1997-B SUBI Supplement) more particularly described on Exhibit A hereto
(which is in substantially the form of a Schedule of Leases and Leased
Vehicles), in order to create the initial 1997-B SUBI Portfolio.
(c) The Servicer hereby represents and warrants to the
Origination Trustee, on behalf of the Origination Trust, to the Owner Trustee,
on behalf of the Certificateholder, and to the Indenture Trustee, on behalf of
the Noteholders, that (i) all 1997-B Leases as of the Initial Cutoff Date were
Eligible Leases as of the Initial Cutoff Date, (ii) no adverse selection
procedures were employed in selecting such 1997-B Leases, and (iii) it is not
aware of any bias in the selection of such 1997-B Leases that would cause the
delinquencies or losses therein to be worse than those of other Leases.
SECTION 8.02. SUBSEQUENT ADDITIONS TO 1997-B SUBI PORTFOLIO.
(a) Pursuant to Section 11.02 of the 1997-B SUBI Supplement, the
Origination Trustee has been directed to cause to be identified and allocated on
the books and records of the Origination Trust on or before each Transfer Date
certain additional Eligible Leases, related Leased Vehicles and other associated
Trust Assets not then allocated, or reserved for allocation to, any SUBI
Portfolio, with an aggregate Discounted Principal Balance determined as provided
for in such Section. Pursuant to Section 2.02(f) of the Servicing Agreement, the
Origination Trustee, on behalf of the Origination Trust, hereby directs that the
Servicer identify such additional Eligible Leases, related Leased Vehicles and
other associated Trust Assets (as described in clauses (i) and (ii) of the first
sentence of Section 11.01(a) of the 1997-B SUBI Supplement and as meet the other
requirements set forth in Section 11.02 thereof) on or before each Transfer
Date, and cause such Leases and Leased Vehicles to be specifically identified on
the revised Schedule of Leases and Leased Vehicles to be delivered pursuant to
Section 10.01(b) hereof. On each such Transfer Date, but effective as of the
related Subsequent Cutoff Date, such additional Eligible Leases, Leased Vehicles
and other associated Trust Assets shall be added to the 1997-B SUBI Portfolio as
additional 1997-B SUBI Assets.
(b) The Servicer shall give one Business Day's prior notice to
the Indenture Trustee of each Transfer Date. On each Transfer Date, prior to the
reallocation described in the last sentence of subparagraph (a), the Servicer
also shall provide to the Origination Trustee, on behalf of the Origination
Trust, and the Indenture Trustee, on behalf of the Noteholders, an Officer's
Certificate certifying that (i) all 1997-B Leases added to the 1997-B SUBI
Portfolio on that date were Eligible Leases as of the relevant Subsequent Cutoff
Date, (ii) no adverse selection procedures were employed in selecting such
1997-B Leases, (iii) it is not aware of any bias in the selection of such 1997-B
Leases that would cause the delinquencies or losses thereof to be worse than
other Leases, other than the fact that such 1997-B Leases were selected from all
Eligible Leases not then allocated to any SUBI Portfolio or reserved for
allocation to another
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SUBI Portfolio on a "first-in, first-out" basis, based on the date of
origination (other than as provided in Section 11.08 of the 1997-B SUBI
Supplement) and (iv) unless the Indenture Trustee receives confirmation (written
or oral) from each Rating Agency to the effect that the use of different
criteria would not result in the qualification, reduction or withdrawal of its
then current rating on any Rated Notes, after giving effect to such reallocation
(A) each such 1997-B Lease will be allocated to the 1997-B SUBI Portfolio based
upon its Discounted Principal Balance as of the relevant Subsequent Cutoff Date,
(B) the weighted average remaining term of all 1997-B Leases will be not greater
than ___ months, and (C) the weighted average Booked Residual Value of all
1997-B Leases, as a percentage of the aggregate Outstanding Principal Balance of
the 1997-B Leases, will be not greater than __%, based on the characteristics of
each 1997-B Lease as of its date of origination.
(c) Except in the circumstances set forth in Section 11.02(e) of
the 1997-B SUBI Supplement, on each Transfer Date, the Servicer shall transfer
from the 1997-B SUBI Collection Account to the Lease Funding Account an amount
equal to the aggregate Discounted Principal Balance as of the relevant
Subsequent Cutoff Date of the 1997-B Leases then being added to the 1997-B SUBI
Portfolio pursuant to Section 11.02(a) of the 1997-B SUBI Supplement.
(d) In the circumstances set forth in Section 11.02(e) of the
1997-B SUBI Supplement, the Servicer shall transfer from the 1997-B SUBI
Collection Account to the 1997-B SUBI Lease Account the amounts specified in
such Section.
SECTION 8.03. SERVICER PAYMENT IN RESPECT OF CERTAIN LEASES AND
LEASED VEHICLES.
(a) The representation and warranty of the Servicer set forth in
Section 8.01(c), and the certifications of the Servicer pursuant to Section
8.02(b)(i), with respect to each 1997-B Lease shall survive delivery of the
related Lease Documents to the Servicer and shall continue so long as such
1997-B Lease remains outstanding, or until the termination of the Securitization
Trust Agreement pursuant to Section 7.01 thereof, whichever occurs earlier. Upon
discovery by the Origination Trustee, the Owner Trustee, the Indenture Trustee
or the Servicer that any such representation or warranty was incorrect as of the
time effective and materially and adversely affects such 1997-B Lease, the party
discovering such incorrectness shall give prompt written notice to the others.
Within 60 days of its discovery of such incorrectness or notice to such effect
to the Servicer, the Servicer shall cure in all material respects the
circumstances or condition in respect of which the representation or warranty
was incorrect as of the time effective. If the Servicer is unable or unwilling
to do so timely, it shall, as the sole remedy for such breach, promptly (i)
deposit (or cause to be deposited) into the 1997-B SUBI Collection Account an
amount equal to the then Discounted Principal Balance of such Lease as of the
Deposit Date related to the Collection Period in which the 60-day cure period
ended, plus an amount equal to the imputed interest, or lease charge, portion of
any Monthly Lease Payments with respect thereto at the related Lease Rate that
was delinquent as of that Collection Period, (ii) reallocate such Lease and the
related Leased Vehicle from the
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1997-B SUBI Portfolio to the UTI Portfolio, and (iii) indemnify, defend and hold
harmless the holders of any 1997-B SUBI Certificate (including without
limitation the Owner Trustee on behalf of the Certificateholder and the
Indenture Trustee on behalf of the Noteholders) and any subsequent servicer (if
other than the current Servicer) from and against, any and all loss or liability
with respect to or resulting from any such Lease or Leased Vehicle (including
without limitation the reasonable fees and expenses of counsel). Notwithstanding
the foregoing, if any reallocation described in clause (ii) would cause the
Transferor Interest to be equal to or less than zero, the Servicer also shall
deposit promptly into the 1997-B SUBI Collection Account an amount so that the
Transferor Interest will not be reduced to less than zero, and the reallocation
will not be made until such deposit has been made.
(b) In the event that the Servicer receives funds from a Dealer
required pursuant to such Dealer's obligation under a Dealer Agreement with the
Servicer to repurchase a misrepresented Lease or Leased Vehicle included in the
1997-B SUBI Portfolio, the Servicer shall, within two Business Days of receipt
thereof, deposit such funds into the 1997-B SUBI Collection Account, which
deposit shall satisfy the Servicer's obligations pursuant to Section 8.03(a)(i),
and return to the repurchasing Dealer the Certificate of Title and Lease with
respect to such Leased Vehicle.
(c) The obligations of the Servicer pursuant to this Section 8.03
shall survive any termination of the Servicer with respect to the 1997-B SUBI
Portfolio under this Supplement or the Servicing Agreement.
SECTION 8.04. FILINGS.
The Servicer will undertake all other and future actions and
activities as may be reasonably necessary to perfect (or evidence) and confirm
the foregoing allocations of Trust Assets to the 1997-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 reasonably
necessary hereunder or under any other Securitization Trust Documents (including
the Indenture and the Backup Security Agreement), whether on its own behalf or
pursuant to the power of attorney granted by the Grantor pursuant to Section
11.04 of the 1997-B SUBI Supplement; provided, however, that in no event shall
the Servicer be required to take any action to perfect a security interest that
may be held by the Indenture Trustee in any 1997-B Leased Vehicle.
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ARTICLE NINE
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING OF LEASES
IN 1997-B SUBI PORTFOLIO
SECTION 9.01. SERVICER BOUND BY SERVICING AGREEMENT.
(a) Except as otherwise specifically provided herein: (i) the
Servicer shall continue to be bound by all provisions of the Servicing Agreement
with respect to the Leases, Leased Vehicles and other associated Trust Assets in
the 1997-B SUBI Portfolio, including without limitation the provisions of
Article Two thereof relating to the administration and servicing of Leases; and
(ii) the provisions set forth herein shall operate either as additions to or
modifications of the already-extant obligations of the Servicer under the
Servicing Agreement, as the context may require. In the event of any conflict
between the provisions of this Supplement and the Servicing Agreement with
respect to the 1997-B SUBI, the provisions of this Supplement shall prevail.
(b) For purposes of determining the Servicer's obligations with
respect to the servicing of the 1997-B SUBI Portfolio under this Supplement
(including without limitation pursuant to Article Two thereof), general
references in the Servicing Agreement to: (i) a SUBI Account shall be deemed to
refer more specifically to the 1997-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 Servicing Agreement Supplement shall be
deemed to refer more specifically to this Supplement; and (vii) a SUBI
Supplement shall be deemed to refer more specifically to the 1997-B SUBI
Supplement.
(c) Coincident with the execution and delivery of this
Supplement, the Servicer shall furnish the Indenture Trustee, on behalf of the
Noteholders with an Officer's Certificate listing the officers of the Servicer
currently involved in, or responsible for, the administration and servicing of
the Leases in the 1997-B SUBI Portfolio, which list shall from time to time be
updated by the Servicer.
SECTION 9.02. COLLECTION OF MONTHLY LEASE PAYMENTS AND
REMITTANCES; APPLICATION OF PROCEEDS;
ACCOUNTS
(a) With reference to Section 2.02(b) of the Servicing Agreement:
(i) the Servicer shall transfer into the 1997-B SUBI
Collection Account any Extension Fee that it may receive in connection with the
extension of a 1997-B Lease;
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(ii) except as provided in clause (iii) below, the extended
Maturity Date of any 1997-B Lease may not occur later than the last day of the
Collection Period related to the Final Scheduled Distribution Date; and
(iii) if the Servicer does extend the Maturity Date of a
Lease included in the 1997-B SUBI Portfolio by more than a total of five times
or by more than five months in the aggregate as described in Section 2.02(b) of
the Servicing Agreement, or extends the Maturity Date so that the extended
Maturity Date will occur later than the last day of the Collection Period
relating to the Final Scheduled Maturity Date, then, as the sole remedy
therefor, the Servicer shall, on the Deposit Date related to the Collection
Period in which such extension was granted or on the Deposit Date relating to
the Collection Period in which the Servicer discovers or is notified that an
improper extension was granted, (y) deposit into the 1997-B SUBI Collection
Account an amount equal to the then Discounted Principal Balance of such Lease
plus an amount equal to the interest, or lease charge, portion of any Monthly
Lease Payments with respect thereto at the related Lease Rate that were
delinquent as of the end of that Collection Period, and (z) reallocate such
Lease and the related Leased Vehicle from the 1997-B SUBI Portfolio to the UTI
Portfolio. The obligations of the Servicer pursuant to this Section 9.02(a)
shall survive any termination of the Servicer's obligations with respect to the
1997-B SUBI Portfolio under this Supplement or the Servicing Agreement.
(b) With reference to Section 2.02(c) of the Servicing Agreement,
the Servicer shall, within one (1) Business Day after receipt, deposit all
proceeds of claims made under the Residual Value Insurance Policy (as described
in Section 9.10(b)) (i) for Insured Residual Value Loss Amounts with respect to
the Revolving Period, into the 1997-B SUBI Collection Account for reinvestment
in additional Eligible Leases, related Leased Vehicles and other associated
Trust Assets as provided in Section 8.02, and (ii) for Insured Residual Value
Loss Amounts with respect to the Amortization Period, into the Distribution
Account for distribution as provided in clause (ii) of Section 3.03(e) of the
Securitization Trust Agreement.
(c) With reference to Section 2.02(d) of the Servicing Agreement,
the Servicer shall treat all Repossessed Vehicle Proceeds and Matured Leased
Vehicle Proceeds in the manner provided for other Liquidation Proceeds;
provided, however, as set forth in Section 9.07, that the Servicer may be
reimbursed for related unreimbursed Repossessed Vehicle Expenses, Matured Leased
Vehicle Expenses, other Liquidation Expenses and Insurance Expenses as provided
in subsection (g).
(d) With reference to Section 2.04 of the Servicing Agreement,
the Servicer shall deposit into the 1997-B SUBI Collection Account on or before
each Deposit Date each Security Deposit that became Liquidation Proceeds during
the related Collection Period.
(e) The Servicer, on behalf of the Origination Trustee and the
Indenture Trustee, shall establish and maintain the 1997-B SUBI Collection
Account in the circumstances set forth in Section 12.01(a) of the 1997-B SUBI
Supplement. The Servicer, on behalf of the Origination Trustee and the Indenture
Trustee, shall establish and maintain the Residual Value
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Surplus Account in the circumstances set forth in Section 12.03(a) of the 1997-B
SUBI Supplement. The Servicer shall establish and maintain the Distribution
Account in the circumstances set forth in Section 3.01 of the Securitization
Trust Agreement. The Servicer shall establish and maintain the Reserve Fund in
the circumstances set forth in Section 3.04(a) of the Securitization Trust
Agreement.
(f) On each Determination Date the Servicer shall make the
calculations necessary to allow the distribution by the Indenture Trustee to
holders of the 1997-B SUBI Certificates on the related Distribution Date in
accordance with Section 12.01(c) of the 1997-B SUBI Supplement. In connection
therewith, the Servicer shall determine the amount of Origination Trust expenses
and liabilities ("Origination Trust Expenses") incurred or suffered during the
preceding Collection Period and shall calculate the allocations of such
Origination Trust Expenses among the various Portfolios, including the 1997-B
SUBI Portfolio, in good faith and so as not to disproportionately affect any
Portfolio, generally as provided for in Section 7.01(c) of the Trust Agreement.
On each Determination Date, the Servicer also shall make the calculations
necessary to allow the distributions to Noteholders and others on the related
Distribution Date in accordance with Section 3.03 of the Securitization Trust
Agreement.
(g) On each Deposit Date, the Servicer shall (i) cause the
transfer from the 1997-B SUBI Collection Account to the Residual Value Surplus
Account as provided in Section 12.01(b) of the 1997-B SUBI Supplement or make
the transfer from the Residual Value Surplus Account to the 1997-B SUBI
Collection Account as provided in Section 12.03(b) of the 1997-B SUBI
Supplement, as appropriate, and (ii) cause the transfers from the 1997-B SUBI
Collection Account in respect of the 1997-B SUBI Certificates to the
Distribution Account at the direction of the Transferor, as provided in Section
3.02(a) of the Securitization Trust Agreement and Section 12.01(c) of the 1997-B
SUBI Supplement. On each Distribution Date, the Servicer shall make the
distributions from the Distribution Account and the Reserve Fund in respect of
the Notes, as provided in Section 3.03 of the Securitization Trust Agreement,
including without limitation any redeposit of Undistributed Transferor Excess
Collections into the 1997-B SUBI Collection Account upon receipt of appropriate
instructions from the Transferor pursuant to Section 3.03(c) of the
Securitization Trust Agreement.
(h) To the extent that during any Collection Period the Servicer
has incurred Matured Leased Vehicle Expenses as would result in Net Matured
Leased Vehicle Proceeds (for purposes hereof, calculated without netting any
Matured Leased Vehicle Expenses as are reimbursed pursuant to subsection (b)),
being less than the sum of the Booked Residual Values of all Matured Vehicles
sold or otherwise disposed of from Matured Leased Vehicle Inventory during the
related Collection period, then on the related Deposit Date, (w) the Servicer
shall provide to the Origination Trustee and the Indenture Trustee an Officer's
Certificate setting forth the basis for its determination of any such amount,
and (x) the Indenture Trustee shall promptly transfer the amount of such Matured
Leased Vehicle Expenses for the related Collection Period from the Residual
Value Surplus Account to the Lease Funding Account (but only to the extent as
would result in the Net Matured Leased Vehicle Proceeds (but instead calculated
fully in accordance with the definition thereof) being no more than the sum of
the Booked Residual
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Values of all Matured Vehicles sold or otherwise disposed of from Matured Leased
Vehicle Inventory during that Collection Period). To the extent that during any
Collection Period: (i) the Servicer has incurred Matured Leased Vehicle Expenses
that may not be reimbursed from the Residual Value Surplus Account as described
above, whether because Net Matured Leased Vehicle Proceeds (again calculated
fully in accordance with the definition thereof) would be more than the sum of
the Booked Residual Values of all Matured Vehicles sold or otherwise disposed of
from Matured Leased Vehicle Inventory during that Collection Period or because
there are insufficient amounts available on deposit in the Residual Value
Surplus Account to reimburse the Servicer for any Matured Leased Vehicle
Expenses as would otherwise be reimbursable from the Residual Value Surplus
Account as provided above; (ii) the Servicer has incurred any Repossessed
Vehicle Expenses or other Liquidation Expenses or Insurance Expenses; (iii) any
Monthly Lease Payments arising from a Lease allocated to the 1997-B SUBI
Portfolio are received by the Origination Trustee or the Servicer with respect
to any prior Collection Period as to which the Servicer has outstanding an
unreimbursed Advance; or (iv) any amount of unreimbursed Advances are reasonably
determined by the Servicer to be Nonrecoverable Advances, then, on the related
Deposit Date, (1) the Servicer shall provide to the Origination Trustee and the
Indenture Trustee an Officer's Certificate setting forth the basis for its
determination of any such amount and (2) the Indenture Trustee shall promptly
transfer an amount equal to the aggregate of such amounts from the 1997-B SUBI
Collection Account to the Lease Funding Account. Thereafter, the Origination
Trustee shall remit to the Servicer from the Lease Funding Account the total of
such amounts set forth in the first sentence above and clauses (i) through (v)
of the second sentence above, without interest (the "Servicer Reimbursement").
In lieu of causing the Indenture Trustee to transfer to the Lease Funding
Account and then remit to the Servicer all or part of any such Servicer
Reimbursement, upon providing an Officer's Certificate, the Servicer may deduct
from deposits otherwise to be made into the 1997-B SUBI Collection Account or
Residual Value Surplus Account, as applicable, an amount up to but not exceeding
the total of such amounts as are due and owing to the Servicer.
(i) The Servicer shall account to the Origination Trustee, the
Indenture Trustee and the Owner Trustee with respect to the 1997-B SUBI
Portfolio separately from any other Portfolio.
(j) The Servicer shall direct the Indenture Trustee's investments
from time to time of funds in the 1997-B SUBI Accounts, the Distribution Account
and the Reserve Fund, all as provided for in (and subject to the limitations of)
Section 7.01(d) of the Trust Agreement, Sections 11.02(d), 12.01, 12.02 and
12.03 of the 1997-B SUBI Supplement, and Sections 3.01(b) and 3.04(a) of the
Securitization Trust Agreement. The maximum permissible maturities of any such
investments pursuant to this clause on any date shall be not later than the
Business Day immediately preceding the Deposit Date (with regard to investment
of funds in 1997-B SUBI Accounts) or the Business Day immediately preceding the
Distribution Date (with regard to investment of funds in the Distribution
Account and the Reserve Fund) next succeeding the date of such investment,
except for (i) investments on which the Indenture Trustee is the obligor
(including repurchase agreements on which it, in its commercial capacity, is
liable as principal), which may mature on the Deposit Date or Distribution Date,
respectively, and (ii) investments
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during the Revolving Period of Principal Collections on deposit in the 1997-B
SUBI Collection Account, which may mature on such dates as specified by the
Indenture Trustee at the Servicer's direction so as to maintain the availability
of sufficient cash to make the payments described in Sections 8.02(c) and (d)
hereof.
(k) In the event the Servicer obtains confirmation (written or
oral) from each Rating Agency, and provides evidence of such confirmation to the
UTI Holder, the Origination Trustee and the Indenture Trustee, to the effect
that the utilization by the Servicer of an alternative remittance schedule with
respect to collections arising out of the 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 satisfactory to each
such Rating Agency) will not result in a qualification, downgrading or
withdrawal of the then-current rating assigned to the Rated Notes by such Rating
Agency, (i) this Supplement may be so modified without the consent of any
Noteholders pursuant to Section 12.02 of this Agreement and 9.01 of the
Securitization Trust Agreement and (ii) the Servicer may remit such collections
to the 1997-B SUBI Collection Account in accordance with that alternative
remittance schedule.
(l) The Servicer may make remittances to the Distribution Account
net of certain other amounts, as and to the extent set forth in Section 3.05 of
the Securitization Trust Agreement.
(m) The parties hereto acknowledge that the Origination Trustee,
on behalf of the Origination Trust, has made a complete transfer to the Owner
Trustee of the initial proceeds of the 99.8% 1997-B SUBI Certificate contained
in the Distribution Account and the Reserve Fund and, except as provided in this
Supplement, the 1997-B SUBI Supplement and the Securitization Trust Agreement,
neither the Origination Trustee nor the Servicer has any right to direct such
funds to a third party or to receive such funds.
(n) In the event of a sale, disposition or other liquidation of
the 99.8% 1997-B SUBI Certificate and the other property of the Securitization
Trust pursuant to Section 8.02 of the Securitization Trust Agreement, the
Servicer shall allocate the net proceeds thereof between Principal Collections
and Interest Collections as set forth in Section 8.01(b) of the Securitization
Trust Agreement.
SECTION 9.03. RECORDS.
Upon the occurrence and during the continuance of a 1997-B
Servicer Event of Default hereunder, the Servicer shall, on demand of the
Origination Trustee, on behalf of the Origination Trust (either at the request
of the Indenture Trustee or, as provided in Section 11.01(b) hereof, upon demand
of Noteholders representing more than 50% of the aggregate Percentage Interests
(acting as a single Class)), deliver to the Origination Trustee all such data,
operating software and appropriate documentation necessary for the servicing of
the 1997-B
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Leases, including but not limited to the related Lease Documents and Title
Documents, all moneys collected by it and required to be deposited in any 1997-B
SUBI Account on behalf of the Origination Trust, or in the Distribution Account
or the Reserve Fund on behalf of the Securitization Trust, all Security Deposits
with respect to 1997-B Leases, and any 1997-B Leased Vehicle in the possession
of the Servicer that has been repossessed or is part of Matured Leased Vehicle
Inventory and in either case has not yet been sold or otherwise disposed of
pursuant to Section 2.06 of the Servicing Agreement. Without limitation of the
foregoing, if the rights of the Servicer with respect to the 1997-B SUBI
Portfolio shall have been terminated in accordance with Section 4.01(b) of the
Servicing Agreement and Section 11.01(b) hereof or if this Supplement shall have
been terminated pursuant to Section 12.01 hereof, the Servicer shall, upon
demand of the Origination Trustee, on behalf of the Origination Trust (either at
the request of the Indenture Trustee, the Noteholders representing more than 50%
of the aggregate Percentage Interests (acting as a single Class), or otherwise),
deliver to the Origination Trustee all such data, operating software and
appropriate documentation necessary for the servicing of the 1997-B Leases and
all moneys collected by it and required to be deposited, as appropriate, in any
1997-B SUBI Account or the Distribution Account or the Reserve Fund. In addition
to delivering such data, operating software and appropriate documentation and
moneys, the Servicer shall use its commercially reasonable efforts to effect the
orderly and efficient transfer of the servicing of the 1997-B Leases to the
party that will be assuming responsibility for such servicing, including,
without limitation, directing Obligors to remit payments in respect of those
Leases to an account or address designated by the Origination Trustee or such
new servicer.
SECTION 9.04. ADVANCES.
(a) On or prior to each Deposit Date, the Servicer shall make any
Advance required by clause (i) of the definition thereof, and may make any
Advance permitted by clause (ii) of the definition thereof which the Servicer
chooses to make, into the 1997-B SUBI Collection Account.
(b) Notwithstanding any other provision of this Supplement, the
Servicer shall not be obligated to make any Advance if and to the extent that
the Servicer shall have reasonably determined that any such Advance, if made,
would constitute a Nonrecoverable Advance. Any such determination shall be
evidenced by an Officer's Certificate of the Servicer furnished to the UTI
Holder, the Origination Trustee and the Indenture Trustee setting out the basis
for such determination, which determination shall be conclusive and binding
absent manifest error.
SECTION 9.05. PAYMENT OF CERTAIN FEES AND EXPENSES;
NO OFFSET.
(a) As part of its obligations hereunder, to the extent that cash
flows arising from the 1997-B SUBI Portfolio, as set forth in Section 3.03(b) of
the Securitization Trust Agreement, are insufficient to provide for the payment
of all fees and expenses due to the Origination Trustee, the Owner Trustee or
the Indenture Trustee as Capped Origination Trust Administrative Expenses,
Capped Owner Trustee Administrative Expenses, Capped Indenture Trustee
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Administrative Expenses or Uncapped Administrative Expenses, the Servicer shall
advance an amount equal to such excess fees and expenses as they become payable
from time to time and agrees to indemnify the Origination Trustee, the Owner
Trustee and the Indenture Trustee and their respective agents for such amounts.
The Servicer shall be entitled to reimbursement of such advances as set forth in
Section 3.03(b) of the Securitization Trust Agreement. The obligations of the
Servicer pursuant to this Section 9.05(a) shall survive any termination of the
Servicer's rights and obligations with respect to the 1997-B SUBI Portfolio
under this Supplement or the Servicing Agreement.
(b) Prior to the termination of the Servicer's rights and
obligations with respect to the 1997-B SUBI Portfolio and thereafter if such
termination results from a 1997-B Servicer Event of Default, the obligations of
the Servicer with respect to the 1997-B SUBI Portfolio shall not be subject to
any defense, counterclaim or right of offset that the Servicer has or may have
against any UTI Holder, the Origination Trustee on behalf of the Origination
Trust, any Special Purpose Affiliate, the Owner Trustee or the Indenture
Trustee, whether in respect of this Supplement, the 1997-B SUBI Supplement, the
Servicing Agreement, any Securitization Trust Document, any 1997-B Lease, any
related Lease Document, any 1997-B Leased Vehicle or otherwise.
SECTION 9.06. SERVICING COMPENSATION.
(a) Notwithstanding anything to the contrary in Section 2.05 of
the Servicing Agreement, (a) the Servicing Rate Portion with regard to the
1997-B SUBI Portfolio shall be calculated and (unless waived in accordance with
Section 9.06(b) hereof) paid on each Distribution Date based upon the Aggregate
Net Investment Value as of the first day of the related Collection Period,
rather than based upon the allocable portion of the Pool Balance, (b) the
portion of the Servicing Fee allocable to the 1997-B SUBI Portfolio shall be
paid out of cash flows arising from the 1997-B SUBI Portfolio as and to the
extent set forth in Section 12.01(c) of the 1997-B SUBI Supplement and the
definition of the term "Collections" set forth in Section 10.01 thereof, (c) no
Extension Fee with respect to a Lease included in the 1997-B SUBI Portfolio
shall constitute part of the Servicing Fee, and (d) the Servicer may be
reimbursed for advancing certain Administrative Expenses as provided in Section
9.05(a). Further, as additional servicing compensation with regard to the 1997-B
SUBI Portfolio, the Servicer also shall receive income on investment of funds in
the Reserve Fund if and to the extent that the balance therein is greater than
the Reserve Fund Cash Requirement (and so long as all Excess Collections are not
required to be retained in the Reserve Fund pursuant to Section 3.03(c) of the
Securitization Trust Agreement) as and to the extent provided in Section 3.04(b)
of the Securitization Trust Agreement.
(b) So long as World Omni Financial Corp. is the Servicer, the
Servicer may, by notice to the Origination Trustee and the Indenture Trustee on
or prior to any Determination Date, waive its Servicing Fee with respect to the
related Collection Period, so long as the Servicer believes that sufficient
collections will be available from Interest Collections on one or more future
Distribution Dates (other than from amounts on deposit in the Reserve Fund) to
pay
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such waived Servicing Fee, without interest. If the Servicer so waives such
Servicing Fee, the Servicing Fee with respect to such Collection Period shall be
deemed to be zero for all purposes, provided, however, that for purposes of
clause (c) of the definition of "Interest Collections" in the 1997-B SUBI
Supplement and Section 3.03 of the Securitization Trust Agreement, any such
waived Servicing Fee thereafter shall be treated as an unpaid Servicing Fee with
respect to a prior Collection Period (unless the Servicer continues to waive
such Servicing Fee).
SECTION 9.07. REPOSSESSION AND SALE OF LEASED VEHICLES.
Notwithstanding Section 2.06 of the Servicing Agreement, the
Servicer need not deduct from Repossessed Vehicle Proceeds, Matured Leased
Vehicle Proceeds or other Liquidation Proceeds or Insurance Proceeds with
respect to any particular 1997-B Leased Vehicle all related unreimbursed
Repossessed Vehicle Expenses, Matured Leased Vehicle Expenses or other
Liquidation Expenses or Insurance Expenses prior to transferring such funds out
of its operating account. Such expenses may instead be reimbursed as provided in
Section 9.02(g).
SECTION 9.08. INDEMNIFICATION BY SERVICER.
The Servicer agrees to indemnify, defend and hold harmless the
Owner Trustee, the Indenture Trustee and their respective agents for any and all
liabilities, losses, damages and expenses (including without limitation
reasonable fees and expenses of counsel) that may be incurred by the Owner
Trustee, the Indenture Trustee or their respective agents as a result of any act
or omission by the Servicer in connection with its maintenance and custody of
the Lease Documents, Title Documents, and Lease Records with respect to 1997-B
Leases and 1997-B Leased Vehicles, the servicing of the 1997-B Leases, the
Servicer's undertakings in clause (e) of Section 2.07 of the Servicing Agreement
or any other activity undertaken or omitted by the Servicer with respect to any
Trust Asset included in the 1997-B SUBI Portfolio. The obligations set forth in
this Section 9.08 shall survive the termination of this Supplement or the
resignation or removal of the Servicer (generally or with respect to the 1997-B
SUBI Portfolio), the Owner Trustee or the Indenture Trustee.
SECTION 9.09. THIRD PARTY CLAIMS.
The Servicer shall immediately notify the Owner Trustee and the
Indenture Trustee and any other holder of any 1997-B SUBI Certificate upon its
learning that a claim of whatever kind that would have a material adverse impact
on any UTI Holder, the Transferor, the Origination Trustee, the Origination
Trust, the Securitization Trust, the Owner Trustee, the Indenture Trustee, any
1997-B SUBI Asset or the Servicer is being made by a third party with respect to
any Lease or Leased Vehicle (whether or not included in the 1997-B SUBI
Portfolio) or the servicing thereof or with respect to any other Trust Asset
(whether or not constituting a 1997-B SUBI Asset).
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SECTION 9.10. INSURANCE POLICIES.
(a) So long as any 1997-B SUBI Certificates are outstanding, the
Servicer will maintain and pay when due all premiums with respect to, and the
Servicer may not terminate or cause the termination of, or permit any other
insured party to terminate or cause the termination of the following: (i) each
Contingent and Excess Liability Insurance Policy, all premiums with respect to
which shall constitute Administrative Expenses, unless (A) a replacement
insurance policy or policies is obtained providing coverage against third party
claims that may be raised against the Origination Trustee, on behalf of the
Origination Trust, with respect to any Leased Vehicle included in the 1997-B
SUBI Portfolio in an amount at least equal to $10 million per claim, not
subject, to this extent, to any annual or aggregate cap (which policy or
policies may be a blanket insurance policy or policies covering the Servicer and
one or more of its Affiliates), and (B) either each Rating Agency has confirmed
(orally or in writing) to the Indenture Trustee to the effect that the obtaining
of any such replacement insurance policy or policies, in and of itself, will not
cause its then-current rating of any of the Rated Notes to be qualified, reduced
or withdrawn, or alternatively (with respect to Moody's only, so long as ▇▇▇▇▇'▇
is a Rating Agency) such replacement policy is issued by a carrier with a claims
paying ability rating of A-2 or better; or (ii) the Residual Value Insurance
Policy, all premiums with respect to which shall be an expense of the Servicer,
unless the Servicer complies with clause (ii) or (iii) of Section 8.01(l) of the
Securitization Trust Agreement. Further, the Servicer shall provide each Rating
Agency prior notice of the content of any proposed amendment, modification or
waiver of the terms of the Residual Value Insurance Policy, whether or not such
action requires the approval of any Rating Agency. On or before December 31 of
each year, the Servicer shall provide to the Origination Trustee one or more
insurance certificates certifying that each of the particular policies it is
required to maintain pursuant to this Section 9.10 remains in full force and
effect. The obligations of the Servicer pursuant to this Section 9.10 shall
survive any termination of the Servicer's obligations with respect to the 1997-B
SUBI Portfolio under this Supplement or the Servicing Agreement.
(b) On or prior to each Residual Value Loss Determination Date,
the Servicer shall determine the Insured Residual Value Loss Amount for the
related Collection Period, if any, and shall make a claim under the Residual
Value Insurance Policy for any such Insured Residual Value Loss Amount. The
proceeds of such claim shall be deposited as set forth in Section 2.02(c) hereof
for application as set forth in clause (ii) of Section 3.03(e) of the
Securitization Trust Agreement.
(c) Once established, the Servicer shall not change the insured
residual value of any 1997-B Leased Vehicle under the Residual Value Insurance
Policy except (i) in accordance with its customary and usual procedures and (ii)
in a manner as will not result in such 1997-B Leased Vehicle not being covered
by the Residual Value Insurance Policy.
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SECTION 9.11. SERVICER NOT TO RESIGN; ASSIGNMENT.
(a) If the Servicer resigns in the circumstances contemplated by
Section 2.10(a) of the Servicing Agreement, in addition to the requirements set
forth therein, the Opinion of Counsel required thereby also shall be reasonably
satisfactory to the Indenture Trustee. Any servicing agreement entered into by a
new servicer pursuant to that Section 2.10(a) also must contain substantially
the same provisions as this Supplement. The Indenture Trustee shall not
unreasonably fail to consent to a servicing agreement with a new servicer that
proposes to enter into a servicing agreement that meets the standards required
by Section 2.10 of the Servicing Agreement and this Supplement. No such
resignation shall affect the obligation of the Servicer to remit moneys to the
1997-B SUBI Collection Account (in lieu of unrecoverable insurance proceeds) as
set forth in Section 2.11 of the Servicing Agreement and Section 9.11 hereof, or
the obligations of the Servicer pursuant to Section 8.03(c) hereof, Section
2.07(g) of the Servicing Agreement or Section 9.07 hereof, Section 9.02(a)
hereof (as to any 1997-B Lease the Maturity Date of which has been extended
beyond the specified limit by the Servicer), Section 9.05(a) hereof, or Section
9.09 hereof; no successor Servicer shall be required to undertake any of the
foregoing, other than the obligation set forth in Section 9.05(a) (which shall
remain a joint and several obligation of the initial Servicer and any successor
Servicer). The Origination Trustee shall give prompt notice to each Rating
Agency of any such resignation of the Servicer, and the Origination Trustee and
Indenture Trustee must obtain from each Rating Agency a letter approving each
substitute servicer.
(b) The Servicer may not assign this Supplement or any of its
rights, powers, duties or obligations hereunder except in connection with an
assignment of the Servicing Agreement as permitted thereby.
(c) Except as provided in paragraphs (a) and (b) above, the
duties and obligations of the Servicer under this Supplement shall continue
until they shall have been terminated as provided in Section 12.01 hereof or in
the Servicing Agreement and shall survive the exercise by the Origination
Trustee, on behalf of the Origination Trust, of any right or remedy under this
Supplement or the Servicing Agreement or the enforcement by the Origination
Trustee, on behalf of the Origination Trust, of any provision of the Origination
Trust Documents.
SECTION 9.12. OBLIGOR INSURANCE COVERAGE IN RESPECT
OF LEASED VEHICLES.
With reference to Section 2.11 of the Servicing Agreement, except
as provided in Section 9.02 hereof, the required deposits of insurance proceeds
with respect to 1997-B Leased Vehicles into the 1997-B SUBI Collection Account
shall be made within two Business Days after receipt thereof.
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SECTION 9.13. CORPORATE EXISTENCE; STATUS; MERGER.
(a) With reference to Section 2.13(a) of the Servicing Agreement,
the Servicer also will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of, or to permit the
Servicer to perform its obligations under, this Supplement, the Servicing
Agreement and the Securitization Trust Agreement.
(b) With reference to Section 2.13(b) of the Servicing Agreement,
whenever the consent of the Origination Trustee is required, so also shall the
consent of the Indenture Trustee be required, and whenever a successor to the
Servicer by merger or consolidation is required to execute and deliver to the
Origination Trustee an agreement in form and substance reasonably satisfactory
to the Origination Trustee as to the assumption by the successor of the
Servicer's obligations under the Servicing Agreement and the other Origination
Trust Documents, such agreement also must be reasonably satisfactory to the
Indenture Trustee and must contain a similar assumption of the Servicer's
obligations under this Supplement.
SECTION 9.14. MOBILE LEASED PREMISES.
The Servicer as "Lessor," hereby leases to the Transferor and its
general partner, World Omni Lease Securitization, Inc., each as "Lessee," and
Lessee hereby hires and takes as tenant, for a rental of $100 per year for
Lessee, certain premises located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ of the
minimum dimensions of five (5) feet by eleven (11) feet and surrounded on at
least three (3) sides by walls or moveable partitions (the "Mobile Leased
Premises"), to be used as the Alabama office of Lessee. The lease of the Mobile
Leased Premises to the Lessee pursuant to this Section 9.14 shall continue
throughout the term of this Supplement, except in the case of a change in the
Servicer's principal Alabama offices, in which case the lease of functionally
equivalent premises in the new location from time to time shall continue
throughout such term.
ARTICLE TEN
STATEMENTS AND REPORTS
SECTION 10.01. REPORTING BY THE SERVICER.
(a) The Servicer shall deliver to the Indenture Trustee all
reports and other documents required to be delivered to the Origination Trustee
pursuant to the Servicing Agreement (including Section 3.01 thereof)
concurrently with their delivery to the Origination Trustee.
(b) On or prior to each Determination Date and each Transfer
Date, the Servicer shall cause to be delivered to the Origination Trustee and
the Indenture Trustee a revised Schedule of Leases and Leased Vehicles,
containing data as of the last day of the prior
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Collection Period (in the case of each Determination Date) or as of the related
Subsequent Cutoff Date (in the case of each Transfer Date), and which shall
contain in addition to the data required by the definition of the term "Schedule
of Leases and Leased Vehicles" an identification of all Leases and Leased
Vehicles that are 1997-B Leases and 1997-B Leased Vehicles, the Discounted
Principal Balance of each 1997-B Lease and the related Cutoff Date for each
1997-B Lease, and on or prior to each Determination Date, shall cause to be
delivered to the Origination Trustee, the Indenture Trustee and each Rating
Agency a certificate in respect of such Collection Period (the "Servicer's
Certificate") substantially in the form attached as Exhibit B (and setting forth
such additional information as requested by each Rating Agency from time to time
which information the Servicer is able to reasonably provide), containing all
information necessary to make the distributions required by Sections 9.02(f)
hereof, 12.01(c) of the 1997-B SUBI Supplement, 3.03 of the Securitization Trust
Agreement and Section 8.02(b) of the Indenture in respect of the Collection
Period immediately preceding such Determination Date. On or prior to each
Deposit Date, the Servicer shall cause to be delivered to the Indenture Trustee
the statement required by Section 3.06(a) of the Securitization Trust Agreement.
Within the time required by Section 3.06(b) of the Securitization Trust
Agreement, the Servicer shall cause to be delivered to the Indenture Trustee the
statements required by that Section. Any Noteholder or Note Owner may obtain a
copy of a Servicer's Certificate upon written request.
SECTION 10.02. ANNUAL ACCOUNTANTS' REPORTS.
The annual report of the Independent Accountants of the Servicer
required by Section 3.02 of the Servicing Agreement, to the extent that it
refers to the Servicing Agreement, shall also specifically refer to the
Servicing Agreement as supplemented by this Supplement, and shall additionally
be delivered to the Indenture Trustee and each Rating Agency.
SECTION 10.03. OTHER CERTIFICATES AND NOTICES FROM
SERVICER.
(a) The annual Officer's Certificate of the Servicer required by
Section 3.03 of the Servicing Agreement, to the extent that it refers to the
Servicing Agreement, shall also specifically refer to the Servicing Agreement as
supplemented by this Supplement, and shall additionally be delivered to the
Indenture Trustee and each Rating Agency.
(b) The Servicer shall deliver to the Indenture Trustee, the
Origination Trustee and each Rating Agency, promptly after having obtained
knowledge thereof, but in no event later than five Business Days thereafter, an
Officer's Certificate specifying the nature and status of any event which with
the giving of notice or lapse of time, or both, would become a 1997-B Servicer
Event of Default.
(c) On or prior to each Determination Date, the Servicer shall
cause to be delivered to the Indenture Trustee and each Rating Agency an
Officer's Certificate stating that neither the Trust nor any of its ERISA
Affiliates: (i) maintains a Plan, which, as of its last valuation date, has
Unfunded Current Liability; (ii) anticipates that the value of the assets
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of any Plan it maintains would not be sufficient to cover any Current Liability;
or (iii) is contemplating benefit improvements with respect to any Plan then
maintained by any such entity or the establishment of any new Plan, either of
which would cause any such entity to maintain a Plan with Unfunded Current
Liability.
[SECTION 10.04. TAX RETURNS.]
[As contemplated by Section 6.12 of the Securitization Trust
Agreement, the Servicer shall direct the Owner Trustee to prepare or cause to be
prepared, on behalf of the Transferor, any required federal tax information
returns (in a manner consistent with the treatment of the Notes as
indebtedness). Also as contemplated by Section 6.12 of the Securitization Trust
Agreement, the Servicer shall prepare or cause to be prepared any federal and
state tax returns that may be required with respect to the Securitization Trust
or the assets thereof and shall deliver any such returns to the Owner Trustee
for signature at least five days prior to the date such returns are required by
law to be filed.]
ARTICLE ELEVEN
SERVICER DEFAULT
SECTION 11.01. EVENTS OF DEFAULT; TERMINATION OF SERVICER AS TO
1997-B SUBI PORTFOLIO.
(a) Any of the following acts or occurrences shall constitute a
1997-B Servicer Event of Default under the Servicing Agreement, as supplemented
by this Supplement:
(i) The Servicer shall have failed to deliver to the
Origination Trustee for distribution to or for the account of
the holders of 1997-B SUBI Certificates or to the Indenture
Trustee for distribution to the Noteholders any amounts required
to be so distributed pursuant to the Servicing Agreement or this
Supplement, which failure continues for five Business Days after
discovery of such failure by an officer of the Servicer or
receipt by the Servicer of written notice thereof from the
Origination Trustee, the Indenture Trustee or Noteholders
representing not less than 25% of the aggregate Percentage
Interests;
(ii) The Origination Trustee or the Indenture Trustee shall
not have received any report relating to the 1997-B SUBI
Portfolio and required to be delivered to it pursuant to the
Servicing Agreement or this Supplement within ten Business Days
after the date any such report is due;
(iii) The Servicer shall default in the due performance and
observance of any other provision of the Servicing Agreement or
this Supplement with regard to the 1997-B SUBI Portfolio, which
default materially and adversely affects the rights of holders
of 1997-B SUBI Certificates, the Certificate or the Noteholders,
and such default shall have continued for a period of 60 days
after written notice thereof shall have
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been given to the Servicer by the Origination Trustee, the
Indenture Trustee or by Noteholders representing not less than
25% of the aggregate Percentage Interests;
(iv) The Event of Default set forth in Section 4.01(a)(iv)
of the Servicing Agreement;
(v) The Event of Default set forth in Section 4.01(a)(v)
of the Servicing Agreement;
(vi) Any representation, warranty or statement of the
Servicer made in the Servicing Agreement or this Supplement
relating to the 1997-B SUBI Portfolio or any certificate, report
or other writing delivered pursuant hereto or thereto relating
to the 1997-B SUBI Portfolio shall prove to be incorrect in any
material respect as of the time when the same shall have been
made and, within 30 days after written notice thereof shall have
been given to the Servicer by the Origination Trustee, the
Indenture Trustee or Noteholders representing not less than 25%
of the aggregate Percentage Interests, the circumstance or
condition in respect of which such representation, warranty or
statement was incorrect shall not have been eliminated or
otherwise cured;
(vii) The Servicer shall have failed to make an Advance
(other than any Nonrecoverable Advance) at the time and in the
amount required by Section 9.04(a) hereof, which failure
continues for five Business Days after discovery of such failure
by an officer of the Servicer or receipt by the Servicer of
written notice thereof from the Origination Trustee, the
Indenture Trustee or Noteholders representing not less than 25%
of the aggregate Percentage Interests;
(viii) The Servicer shall have failed to pay promptly any
Insurance Proceeds pursuant to Section 9.12 hereof and Section
2.11 of the Servicing Agreement at the time such moneys would
otherwise be recoverable under the comprehensive, collision,
public liability and property damage policy required to be
maintained by an Obligor under the related Lease, which failure
continues for five Business Days after discovery of such failure
by an officer of the Servicer or receipt by the Servicer of
written notice thereof from the Origination Trustee, the
Indenture Trustee or Noteholders representing not less than 25%
of the aggregate Percentage Interests;
(ix) The Servicer shall have failed to perform its
obligations under Section 9.10(a) hereof with respect to the
Contingent and Excess Liability Insurance Policies or the
Residual Value Insurance Policy; or
(x) The Transferor shall have failed to timely perform its
obligations under the fourth sentence of Section 3.04(b) of the
Securitization Trust Agreement with regard to the deposit into
the Reserve Fund of an amount equal to the RV Insurer Reserve
Fund Supplemental Requirement in the event of an RV Insurer
Trigger Event.
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Notwithstanding the foregoing, a delay or failure in the
performance referred to under clause (i), (vii) or (viii) above for a period of
ten Business Days, or referred to in clause (ii) above for a period of 20
Business Days, or referred to in clause (iii) for a period of 90 days, or
referred to in clause (vi) for a period of 60 days, shall not constitute a
1997-B Servicer Event of Default if arising from a Force Majeure. Upon the
occurrence of a Force Majeure, the Servicer shall not be relieved from using all
commercially reasonable efforts to perform its obligations in a timely manner,
and the Servicer shall provide to the Indenture Trustee, the Origination
Trustee, the Transferor and the Noteholders prompt notice of such failure or
delay, together with a description of its efforts to perform its obligations.
(b) Notwithstanding anything to the contrary in the Servicing
Agreement, the rights and powers of the Servicer may not be terminated with
regard to the 1997-B SUBI Portfolio absent a 1997-B Servicer Event of Default,
as further set forth below. The consequences of a 1997-B Servicer Event of
Default shall be as set forth in Section 4.01(b) of the Servicing Agreement with
respect to an Event of Default, as modified by this Section 11.01(b). For those
purposes, references in Section 4.01(b) of the Servicing Agreement, to an Event
of Default shall mean a 1997-B Servicer Event of Default. Further, in the case
of the 1997-B SUBI, references to "the holder of the requisite percentage of any
SUBI" shall refer either to the Indenture Trustee, or to Noteholders
representing more than 50% of the aggregate Percentage Interests (acting as a
single Class). If a 1997-B Servicer Event of Default shall have occurred and be
continuing, the Origination Trustee, on behalf of the Origination Trust, upon
the direction of the Indenture Trustee or Noteholders representing more than 50%
of the aggregate Percentage Interests (acting as a single class), shall, by
notice given to the Servicer, terminate the portion of the rights and powers of
the Servicer under the Servicing Agreement, as supplemented by this Supplement,
with respect to the 1997-B SUBI Portfolio. Upon the giving of any such notice
described in the preceding sentence or in Section 4.01(b) of the Servicing
Agreement, all rights, powers, duties and responsibilities of the Servicer under
the Servicing Agreement, as supplemented by this Supplement with respect to the
1997-B SUBI Portfolio, whether with respect to the related Lease Documents, the
related Title Documents or Lease Records, the 1997-B SUBI Collection Account,
the Distribution Account, any 1997-B Lease Funding Account, the Reserve Fund,
the Residual Value Surplus Account, the Servicing Fee or otherwise, but
excluding the obligations set forth below as being retained by the Servicer,
shall vest in and be assumed by the Trust Agent or, if the Trust Agent declines
to act as successor servicer as permitted below, a new servicer as provided in
Section 4.01(b) of the Servicing Agreement, and each of the Trust Agent and the
Origination Trustee is each hereby irrevocably authorized and empowered to
execute and deliver, on behalf of the Servicer, as attorney-in-fact or
otherwise, all documents and other instruments (including any notices to
Obligors deemed necessary or advisable by the Trust Agent or Origination
Trustee), and to do or accomplish all other acts or things necessary or
appropriate to effect such vesting and assumption, including, without
limitation, directing the Obligors to remit Monthly Contract Payments,
Prepayments and all other payments on or in respect of the 1997-B Leases and the
1997-B Leased Vehicles to an account or address designated by the Trust Agent or
such new servicer. Further, in such event, the Servicer shall use commercially
reasonable efforts to effect the orderly and efficient transfer of the servicing
of the 1997-B Leases to the Trust Agent or new servicer, and as promptly as
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practicable, the Servicer shall provide to the Trust Agent or new servicer, as
the case may be, a current computer tape containing all information from the
Lease Records required for the proper servicing of the 1997-B Leases, together
with documentation containing any and all information necessary for use of the
tape. The Trust Agent may resign or decline to serve as the Servicer of the
1997-B SUBI Portfolio by giving written notice of such resignation or
declination to the Origination Trustee and the Indenture Trustee and in such
event will be released from such duties and obligations, such resignation or
declination and such release not to be effective until the date a new servicer
enters into a servicing agreement with the Origination Trustee as provided in
Section 4.01(b) of the Servicing Agreement and the Origination Trustee and
Indenture Trustee receive from each Rating Agency a letter approving such
substitute servicer. Upon delivery of any such notice to the Origination
Trustee, the Origination Trustee shall use its commercially reasonable efforts,
upon not less than 30 days' prior written notice to the Indenture Trustee and
the Noteholders, to obtain a new servicer for the 1997-B SUBI Portfolio, which
shall be an Eligible Servicer, and which shall enter into a servicing agreement
with the Origination Trustee as provided in Section 4.01(b) of the Servicing
Agreement. If, within 30 days after the delivery of the notice to the
Origination Trustee and the Indenture Trustee referred to above, the Origination
Trustee shall not have obtained such a new servicer for the 1997-B SUBI
Portfolio, the Indenture Trustee may appoint, or may petition a court of
competent jurisdiction to appoint, a successor servicer to service the 1997-B
Leases.
No termination of the Servicer as to the 1997-B SUBI Portfolio
shall affect the obligations of the Servicer pursuant to Section 2.01(b)(i) of
the Servicing Agreement, Section 2.11 of the Servicing Agreement or Section 9.10
hereof, Section 2.07(g) of the Servicing Agreement or Section 9.08 hereof,
Section 8.03 hereof, Section 9.02(a) hereof (as to any 1997-B Lease the Maturity
Date of which has been extended beyond the specified limit by the Servicer), or
Section 9.01(a) hereof.
The Origination Trustee shall give prompt notice to each Rating
Agency of any termination of the Servicer affecting the 1997-B SUBI Portfolio
pursuant to this Section 11.01(b) or pursuant to Section 4.01(b) of the
Servicing Agreement.
SECTION 11.02. NO EFFECT ON OTHER PARTIES.
Upon any termination of the rights and powers of the Servicer
with respect to the 1997-B SUBI Portfolio from time to time pursuant to Section
11.01 hereof or Section 4.01 of the Servicing Agreement, or upon any appointment
of a successor to the Servicer with respect to the 1997-B SUBI Portfolio, all
the rights, powers, duties and obligations of the Origination Trustee, the
Indenture Trustee, the Owner Trustee, the UTI Holder and the Transferor under
this Agreement, the Securitization Trust Agreement, the Indenture, the 1997-B
SUBI Supplement, or any other Origination Trust Document shall remain unaffected
by such termination or appointment and shall remain in full force and effect
thereafter, except as otherwise expressly provided herein or therein.
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ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TERMINATION OF AGREEMENT.
(a) In connection with any purchase by the Transferor of the
corpus of the Securitization Trust pursuant to Section 7.02 of the
Securitization Trust Agreement, and the Transferor's then succeeding to all of
the interest in the 1997-B SUBI represented by the 1997-B SUBI Certificates, and
if the UTI Holder shall thereafter succeed to such interest in the 1997-B SUBI,
the Servicer, upon the direction of the UTI Holder as provided in Section 11.05
of the 1997-B SUBI Supplement, shall reallocate all 1997-B Leases, 1997-B Leased
Vehicles and related 1997-B SUBI Assets to the UTI Portfolio.
(b) Except as provided in this Section 12.01, the respective
duties and obligations of the Servicer and the Origination Trustee with respect
to the 1997-B SUBI Portfolio created by the Servicing Agreement and this
Supplement shall terminate upon the termination of the Securitization Trust
Agreement pursuant to Section 7.01 thereof or upon the earlier termination of
the Servicing Agreement pursuant to Section 5.01 thereof. Upon such a
termination, the Servicer shall pay over to the Origination Trustee or any other
Person entitled thereto all moneys held by the Servicer with respect to the
1997-B SUBI Portfolio pursuant to the Servicing Agreement and this Supplement.
SECTION 12.02. AMENDMENT.
(a) Notwithstanding Section 5.02(a) of the Servicing Agreement,
the Servicing Agreement, as supplemented by this Supplement, to the extent that
it deals with the 1997-B SUBI Portfolio, may be amended from time to time in a
writing signed by the Origination Trustee, on behalf of the Origination Trust,
the Trust Agent (but only to the extent that such amendment deals with Section
11.01(b)) and the Servicer, with the prior written consent of the Indenture
Trustee, which shall be given only in the circumstances contemplated by Section
9.01 of the Securitization Trust Agreement.
(b) The Servicer shall provide each Rating Agency prior notice of
the content of any proposed amendment to the Servicing Agreement, whether or not
such amendment relates to the 1997-B SUBI or requires approval of any Rating
Agency.
SECTION 12.03. GOVERNING LAW.
THIS SUPPLEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS.
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SECTION 12.04. NOTICES.
The notice provisions of Section 5.04 of the Servicing Agreement
shall apply equally to this Supplement, provided that any notice to the
Indenture Trustee shall be addressed as follows:
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 Office
SECTION 12.05. SEVERABILITY.
If one or more of the provisions of this Supplement shall be for
any reason whatever held invalid or unenforceable, such provisions shall be
deemed severable from the remaining covenants, agreements and provisions of this
Supplement, and such invalidity or unenforceability shall in no way affect the
validity or enforceability of such remaining covenants, agreements and
provisions, or the rights of any parties hereto. To the extent permitted by law,
the parties hereto waive any provision of law that renders any provision of this
Supplement invalid or unenforceable in any respect.
SECTION 12.06. INSPECTION AND AUDIT RIGHTS.
The Servicer agrees to afford the same inspection and audit
rights to any representative or designee of the Owner Trustee or Indenture
Trustee as granted to any representative or designee of the Origination Trustee
pursuant to Section 5.06 of the Servicing Agreement, but only with respect to
the books of account, records, reports and other papers of the Servicer relating
to the 1997-B SUBI Portfolio.
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SECTION 12.07. BINDING EFFECT.
The provisions of the Servicing Agreement and this Supplement,
insofar as they relate to the 1997-B SUBI Portfolio, shall be binding upon and
inure to the benefit of the respective successors and permitted assigns of the
parties hereto, and shall inure to the benefit of the Origination Trustee, on
behalf of the Origination Trust, the Owner Trustee and the Indenture Trustee, on
behalf of the Noteholders.
SECTION 12.08. ARTICLE AND SECTION HEADINGS.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 12.09. EXECUTION IN COUNTERPARTS.
This Supplement may be executed in any number of counterparts,
each of which so executed and delivered shall be deemed to be an original, but
all of which counterparts shall together constitute but one and the same
instrument.
SECTION 12.10. RIGHTS CUMULATIVE.
All rights and remedies from time to time conferred upon or
reserved to the Origination Trustee, on behalf of the Origination Trust, the
Servicer, the Owner Trustee or the Indenture Trustee or to any or all of the
foregoing are cumulative, and none is intended to be exclusive of another. No
delay or omission in insisting upon the strict observance or performance of any
provision of this Agreement, or in exercising any right or remedy, shall be
construed as a waiver or relinquishment of such provision, nor shall it impair
such right or remedy. Every right and remedy may be exercised from time to time
and as often as deemed expedient.
SECTION 12.11. FURTHER ASSURANCES.
Each party will do such acts, and execute and deliver to any
other party such additional documents or instruments as may be reasonably
requested in order to effect the purposes of this Supplement and to better
assure and confirm unto the requesting party its rights, powers and remedies
hereunder.
SECTION 12.12. THIRD-PARTY BENEFICIARIES.
The Servicing Agreement and this Supplement, insofar as they
relate to the 1997- B SUBI Portfolio, will inure to the benefit of and be
binding upon the parties hereto, and each of the holders of any legal or
beneficial interest in the 1997-B SUBI Certificates (including without
limitation the Indenture Trustee, the Owner Trustee, the Certificateholder and
the Noteholders),
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who shall be considered to be third-party beneficiaries hereof. Except as
otherwise provided in this Agreement, no other Person will have any right or
obligation hereunder.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective officers duly authorized as of the day
and year first above written.
WORLD OMNI FINANCIAL CORP.
By:
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Assistant Treasurer
VT INC., as
trustee of World Omni LT
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
WORLD OMNI LEASE SECURITIZATION L.P.
(solely for purposes of Section 9.14)
By: WORLD OMNI LEASE SECURITIZATION,
INC., its general partner
By:
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Assistant Treasurer
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U.S. BANK NATIONAL ASSOCIATION, as Trust
Agent (solely for purposes of Section 11.01(b))
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Acknowledged and Agreed:
U.S. BANK NATIONAL ASSOCIATION, as
Indenture Trustee
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PNC BANK, DELAWARE, as Owner Trustee
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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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 Origination
Trustee, the Owner Trustee and the Indenture Trustee.]
A-1
37
EXHIBIT B
FORM OF SERVICER'S CERTIFICATE
B-1