================================================================================
EXHIBIT 4.3
[FORM OF POOLING AND SERVICING AGREEMENT]
among
WORLD OMNI AUTO RECEIVABLES LLC,
as Seller
WORLD OMNI FINANCIAL CORP.
as Servicer,
and
[____________________]
as Trustee
on behalf of the Certificateholders
Dated as of [__________]
WORLD OMNI AUTO RECEIVABLES TRUST ____-_
[___]% Asset Backed Certificates, Class [A]
[___]% Asset Backed Certificates, Class [B]
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
SPECIAL DEFINITIONS AND TERMS
Section 1.01 Special Definitions and Terms.................................................................1
ARTICLE II
ESTABLISHMENT OF TRUST
Section 2.01 Creation of Trust.............................................................................5
Section 2.02 Acceptance by Trustee.........................................................................5
ARTICLE III
CONVEYANCE OF RECEIVABLES
Section 3.01 Conveyance of Initial Standard Receivables....................................................5
Section 3.02 [Conveyance of Subsequent Standard Receivables................................................6
ARTICLE IV
INCORPORATION OF STANDARD TERMS AND CONDITIONS
Section 4.01 Incorporation of Standard Terms and Conditions of Agreement...................................9
ARTICLE V
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE SELLER
Section 5.01 Additional Representations and Warranties of the Seller......................................10
ARTICLE VI
ADDITIONAL PROVISIONS RELATING TO SERVICER
Section 6.01 World Omni Financial Corp....................................................................10
Section 6.02 Additional Covenant of the Servicer..........................................................10
-i-
SCHEDULE A - Schedule of Receivables
SCHEDULE B - Location of Receivable Files
SCHEDULE C - Schedule of Eligible Investment Receivables
-ii-
POOLING AND SERVICING AGREEMENT dated as of [__________],
among WORLD OMNI FINANCIAL CORP., a Florida corporation, as seller (the
"Seller") and servicer (the "Servicer"), and [____________________], a
[____________________] banking corporation, as trustee (the "Trustee").
WHEREAS, the Seller owns or will acquire certain receivables
arising in connection with motor vehicle retail installment sale contracts (the
"Contracts") generated by World Omni Financial Corp. in the ordinary course of
its business; and
WHEREAS, the Seller, the Servicer and the Trustee wish to set
forth the terms and conditions pursuant to which the Trust (as hereinafter
defined) will acquire the Contracts from the Seller, and the Servicer will
service the Contracts on behalf of the Trust;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the Seller, the Servicer and the
Trustee agree as follows:
ARTICLE I
SPECIAL DEFINITIONS AND TERMS
Section 1.01 Special Definitions and Terms. Capitalized terms
used and not defined herein have the meanings assigned thereto in the Standard
Terms and Conditions of Agreement. Whenever used in this Agreement and the
Standard Terms and Conditions of Agreement, the following words and phrases
shall have the following meanings:
"Agency Agreement" means the agreement dated as of the date
hereof among the Seller, the Servicer, the Trustee and the Agent.
"Agent" means [ ], or a successor thereto.
"Agreement" means this Pooling and Servicing Agreement,
including the Standard Terms and Conditions of Agreement of World Omni Auto
Receivables Trusts, dated as of [ ], in the form attached hereto.
"Certificates" means the Class [A] Certificates and the Class
[B] Certificates.
"Class [A] Certificate" means a [ ]% Asset Backed Certificate,
Class [A], evidencing a beneficial interest in the Trust, substantially in the
form of Exhibit A to the Standard Terms and Conditions of Agreement.
"Class [A] Pass-Through Rate" means [_____]%.
"Class [A] Percentage" means [_____]%.
"Class [A] Prepayment Premium" means an amount equal to the
excess, if any, discounted as described below, of (i) the amount of interest
that would accrue on the Pre-Funded
Percentage with respect to the Class [A] Certificates of any remaining
Pre-Funded Amount (the "Class [A] Prepayment Amount") at the Class [A]
Pass-Through Rate during the period commencing on and including the Distribution
Date on which such Class [A] Prepayment Amount is required to be deposited in
the Distribution Account pursuant to Section 14.08(b) to but excluding
[__________], over (ii) the amount of interest that would have accrued on such
Class [A] Prepayment Amount over the same period at a per annum rate of interest
equal to the bond equivalent yield to maturity on the Determination Date
preceding such Distribution Date on the [ ]. Such excess shall be discounted on
a monthly basis to present value to such Distribution Date at the yield
described in clause (ii) above.
"Class [B] Certificate" means a [ ]% Asset Backed Certificate,
Class [B], evidencing a beneficial interest in the Trust, substantially in the
form of Exhibit B to the Standard Terms and Conditions of Agreement.
"Class [B] Pass-Through Rate" means [_____]%.
"Class [B] Percentage" means [_____]%.
"Class [B] Prepayment Premium" means an amount equal to the
excess, if any, discounted as described below, of (i) the amount of interest
that would accrue on the Pre-Funded Percentage with respect to the Class [B]
Certificates of any remaining Pre-Funded Amount (the "Class [B] Prepayment
Amount") at the Class [B] Pass-Through Rate during the period commencing on and
including the Distribution Date on which such Class [B] Prepayment Amount is
required to be deposited in the Distribution Account pursuant to Section
14.08(b) to but excluding [__________], over (ii) the amount of interest that
would have accrued on such Class [B] Prepayment Amount over the same period at a
per annum rate of interest equal to the bond equivalent yield to maturity on the
Determination Date preceding such Distribution Date on the [____________]. Such
excess shall be discounted on a monthly basis to present value to such
Distribution Date at the yield described in clause (ii) above.
"Closing Date" means [______________________________________].
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, which at the time of execution of this agreement is
[______________________________], Attention: [____________________].
"Depository Agreement" means the agreement dated
[____________________], among the Trustee, the Administrator, and The Depository
Trust Company, as the initial Clearing Agency, substantially in the form
attached as Exhibit C to the Standard Terms and Conditions of Agreement.
"Distribution Date" means, with respect to each Collection
Period, the [__________] day of the following calendar month or, if such day is
not a Business Day, the immediately following Business Day, commencing on
[__________].
"Final Scheduled Distribution Date" means
[____________________________].
"Final Scheduled Maturity Date" means
[_____________________________].
-2-
"Funding Period" means the period beginning on and including
the Closing Date and ending on the first to occur of (a) the Determination Date
on which the amount on deposit in the Pre-Funding Account (after giving effect
to any transfers therefrom in connection with the transfer of Subsequent
Receivables to the Trustee on such Determination Date) is less than or equal to
$[__________], (b) the date on which an Event of Default occurs, (c) the date on
which an Insolvency Event occurs with respect to the Seller or the Servicer, and
(d) the Determination Date with respect to the Distribution Date.
"Initial Certificate Balance" means $[__________].
"Initial Class [A] Balance" means $[__________].
"Initial Class [B] Balance" means $[__________].
"Initial Collection Period" means the period beginning on,
and including, [_________] to and including [_________].
"Initial Cutoff Date" means [____________] with respect to
Initial Receivables.
"Initial Receivable" means any Standard Receivable conveyed to
the Trustee hereunder on the Closing Date.
"Investment Earnings" means with respect to any Distribution
Date, the investment earnings (net of losses and investment expenses) on amounts
on deposit in the Trust Accounts to be deposited to the Distribution Account on
such Distribution Date pursuant to Section 14.01(b).
"Lien" means a security interest, lien, charge, pledge,
equity, or encumbrance of any kind, other than tax liens, mechanics' liens and
any liens that attach to the respective Receivable by operation of law as a
result of any act or omission by the related Obligor.
"Liquidated Receivable" means any Receivable or Eligible
Investment Receivable, as applicable, liquidated by the Servicer through sale of
a Financed Vehicle or otherwise.
"Liquidation Proceeds" means, with respect to a Liquidated
Receivable, the monies collected in respect thereof, from whatever source,
during the Collection Period in which such Receivable or Eligible Investment
Receivable, as applicable, became a Liquidated Receivable, net of the sum of any
amounts expended by the Servicer in connection with such liquidation, plus any
amounts required by law to be remitted to the Obligor.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or its
successor.
"Obligor" on a Receivable means the purchaser or co-purchasers
of the Financed Vehicle and any other Person who owes payments under the
Receivable.
-3-
"Officers' Certificate" means a certificate signed by the (a)
chairman of the board, the president, any executive vice president or any vice
president and (b) any treasurer, assistant treasurer, secretary or assistant
secretary of the Seller or the Servicer, as appropriate.
"Opinion of Counsel" means one or more written opinions of
counsel, who may be an employee of or counsel to the Seller or the Servicer,
which counsel shall be acceptable to the Trustee or Rating Agencies, as
applicable.
"Original Pool Balance" means the sum, as of any date, of the
Pool Balance as of the Initial Cutoff Date, plus the aggregate Principal Balance
of the Subsequent Receivables, if any, sold to the Trust, as of their respective
Cutoff Dates.
"Outstanding Simple Interest Advances" on the Simple Interest
Receivables means the sum, as of the close of business on the last day of a
Collection Period, of all Simple Interest Advances, reduced as provided in
Section 14.04(b).
"Person" means any individual, corporation, estate,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof
"Physical Property" has the meaning assigned to such term in
the definition of "Delivery" above.
"Pool Balance" means, as of the close of business on the last
day of a Collection Period, the aggregate Principal Balance of the Receivables
as of such date (excluding Purchased Receivables and Liquidated Receivables).
"Pool Factor" means, as of the close of business on the last
day of a Collection Period, a seven-digit decimal figure equal to the Pool
Balance divided by the Original Pool Balance. The Pool Factor will be 1.0000000
as of the Initial Cutoff Date; thereafter, the Pool Factor will decline to
reflect reductions in the Pool Balance.
"Pre-Funded Amount" means, with respect to any Distribution
Date, the amount on deposit in the Pre-Funding Account, which initially shall be
$[__________].
"Reserve Account Initial Deposit" means, with respect to the
Closing Date and taking into account any transfer of Subsequent Receivables on
such date, an amount equal to the Specified Reserve Account Balance on the
Closing Date (which is equal to $[__________]) and, with respect to each
Subsequent Transfer Date after the Closing Date, an amount equal to [_____]% of
the Principal Balance of the Subsequent Receivables transferred to the Trust on
such Subsequent Transfer Date.
"Servicing Rate" means [_____]% per annum.
"Specified Reserve Account Balance" means [STATE FORMULA].
-4-
"Standard Terms and Conditions of Agreement" means the
Standard Terms and Conditions of Agreement of World Omni Auto Receivables
Trusts, dated as of [__________], in the form attached hereto.
"Subsequent Receivable" means any Subsequent Standard
Receivable conveyed to the Trustee hereunder on a Subsequent Transfer Date
conveyed to the Agent on a Subsequent Transfer Date pursuant to the Agency
Agreement.
"Trustee" means [____________________], a [__________] banking
corporation, its successors in interest and any successor Trustee hereunder.
ARTICLE II
ESTABLISHMENT OF TRUST
Section 2.01 Creation of Trust. Upon the execution of this
Agreement by the parties hereto, there is hereby created a separate trust, which
shall be known as Premier Auto Trust (the "Trust"). The Trust shall be
administered pursuant to the provisions of this Agreement for the benefit of the
Certificateholders.
Section 2.02 Acceptance by Trustee. The Trustee hereby accepts
all consideration conveyed by the Seller pursuant to Section 3.01 and declares
that it will hold such consideration upon the trusts set forth herein for the
benefit of the Certificateholders, subject to the terms and provisions of this
Agreement.
ARTICLE III
CONVEYANCE OF RECEIVABLES
Section 3.01 Conveyance of Initial Standard Receivables. In
consideration of the Trustee's delivery on the Closing Date to or upon the order
of the Seller of Class [A] Certificates in an initial aggregate principal amount
equal to the Initial Class [A] Balance and Class [B] Certificates in an initial
aggregate principal amount equal to the Initial Class [B] Balance, the Seller
does hereby sell, transfer, assign, set over and otherwise convey to the Trustee
for the benefit of the Certificateholders, without recourse (subject to the
obligations set forth herein), all right, title and interest of the Seller in
and to:
(1) the Initial Standard Receivables, and all moneys due
thereon on or after [__________];
(2) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Initial Standard Receivables and any other interest of
the Seller in such Financed Vehicles;
(3) any proceeds with respect to the Initial Standard
Receivables from claims on any physical damage, credit life or disability
insurance policies covering Financed Vehicles or Obligors;
-5-
(4) any proceeds from recourse to Dealers on Initial Standard
Receivables with respect to which the Servicer has determined in accordance with
its customary servicing procedures that eventual payment in full is unlikely;
(5) any Financed Vehicle that shall have secured any such
Initial Standard Receivable and shall have been acquired by or on behalf of the
Seller, the Servicer or the Trust; and
(6) the proceeds of any and all of the foregoing.
Section 3.02 [Conveyance of Subsequent Standard Receivables.
(a) Subject to the conditions set forth in paragraph (b) below, in consideration
of the Trustee's delivery on the related Subsequent Transfer Date to or upon the
order of the Seller of the amount described in Section 14.08(a), the Seller does
hereby sell, transfer, assign, set over and otherwise convey to the Trustee, for
the benefit of the Certificateholders, without recourse (subject to the
obligations set forth herein), all right, title and interest of the Seller in
and to:
(1) the Subsequent Standard Receivables listed on Schedule A
to the related Subsequent Transfer Assignment, and all moneys due thereon on or
after the related Subsequent Cutoff Date;
(2) the security interests in the Financed Vehicles granted by
Obligors pursuant to such Subsequent Standard Receivables and any other interest
of the Seller in such Financed Vehicles;
(3) any proceeds with respect to such Subsequent Standard
Receivables from claims on any physical damage, credit life or disability
insurance policies covering the related Financed Vehicles or Obligors;
(4) any proceeds from recourse to Dealers determined in
accordance with its customary servicing procedures that eventual payment in full
is unlikely;
(5) any Financed Vehicle that shall have secured any such
Subsequent Standard Receivable and shall have been acquired by or on behalf of
the Seller, the Servicer or the Trust; and
(6) the proceeds of any and all of the foregoing.
(b) (1) The Seller shall transfer to the Trustee, for the
benefit of the Certificateholders, the Subsequent Standard
Receivables and the other property and rights related
thereto described in paragraph (a) above only upon the
satisfaction of each of the following conditions precedent
on or prior to the related Subsequent Transfer Date:
(i) the Seller shall have delivered to the Trustee a duly
executed Subsequent Transfer Assignment, which shall
include supplements to Schedule A listing the
Subsequent Receivables;
-6-
(ii) the Seller shall have deposited in the Collection
Account, to the extent required by Section 14.02, all
collections in respect of the Subsequent Receivables;
(iii) as of each Subsequent Transfer Date, (1) the Seller
shall not be insolvent and shall not become insolvent
as a result of the transfer of Subsequent Receivables
on such Subsequent Transfer Date, (2) the Seller
shall not intend to incur or believe that it shall
incur debts that would be beyond its ability to pay
as such debts mature, (3) such transfer shall not
have been made with actual intent to hinder, delay or
defraud any Person and (4) the assets of the Seller
shall not constitute unreasonably small capital to
carry out its business as conducted;
(iv) the applicable Reserve Account Initial Deposit for
such Subsequent Transfer Date shall have been made
pursuant to Section 14.08(a);
(v) the Funding Period shall not have terminated;
(vi) the Subsequent Receivables transferred to the Trustee
pursuant hereto and to the Agent pursuant to the
Agency Agreement, including the Subsequent
Receivables to be so conveyed to the Trustee and the
Agent on such Subsequent Transfer Date, shall meet
the following criteria (based on the characteristics
of the Initial Receivables on the Initial Cutoff Date
and the Subsequent Receivables on the related
Subsequent Cutoff Dates): (1) not more than [_____]%
of the Principal Balances of the Receivables
transferred to the Trustee and the Agent, as
applicable, shall represent vehicles financed at the
Seller's used vehicle rates; and (2) the weighted
average APR of the Receivables transferred to the
Trustee and the Agent, as applicable, shall not be
less than [_____]%, unless, with the prior consent of
the Rating Agencies, the Seller increases the Reserve
Account Initial Deposit by the Additional Amount
solely relating thereto; and the weighted average
remaining term of the Receivables transferred to the
Trustee and the Agent, as applicable, including the
Subsequent Receivables to be conveyed to the Trustee
and the Agent on such Subsequent Transfer Date, shall
not be greater than [__________] months;
(vii) each of the representations and warranties made by
the Seller pursuant to Section 12.01 with respect to
the Subsequent Receivables shall be true and correct
as of the
-7-
related Subsequent Transfer Date, and the Seller
shall have performed all obligations to be performed
by it hereunder on or prior to such Subsequent
Transfer Date;
(viii) the Seller shall, at its own expense, on or prior to
the Subsequent Transfer Date indicate in its computer
files that the Subsequent Standard Receivables
identified in the Subsequent Transfer Assignment have
been sold to the Trustee pursuant to this Agreement;
(ix) the Seller shall have taken any action required to
maintain the first priority perfected ownership
interest of the Trustee in the Trust property;
(x) no selection procedures believed by the Seller to be
adverse to the interests of the Certificateholders
shall have been utilized in selecting the Subsequent
Receivables;
(xi) the addition of any such Subsequent Receivables shall
not result in a material adverse tax consequence to
the Trust or the Certificateholders; and
(xii) the Seller shall have delivered to the Trustee an
Officers' Certificate confirming the satisfaction of
each condition precedent specified in this paragraph
(b)(1).
(2) In addition, any such conveyance of Subsequent Standard
Receivables made on one or more Subsequent Transfer Dates occurring during any
Collection Period also will be subject to the satisfaction, on or before the
[_____] day of the month following the end of such Collection Period (or if such
[_____] day is not a Business Day, then on the next succeeding Business Day), of
the following conditions subsequent:
(i) the Seller shall have delivered to the Trustee and
the Rating Agencies a statement listing the aggregate
Principal Balance of the Subsequent Standard
Receivables so transferred to the Trustee transferred
to the Agent during the related Collection Period,
and any other information reasonably requested by any
of the foregoing with respect to such Subsequent
Standard Receivables;
(ii) each of the Rating Agencies shall have notified the
Seller in writing that, following the transfer of all
such Subsequent Standard Receivables to the Trustee
during the related Collection Period, the (Class [A])
Certificates continue to be rated in the highest
investment rating category by each such Rating
Agency;
-8-
(iii) the Seller shall have delivered (1) to the Rating
Agencies an Opinion of Counsel with respect to the
transfer of such Subsequent Standard Receivables
substantially in the form of the Opinion of Counsel
delivered to the Rating Agencies on the Closing Date
and (2) to the Trustee the Opinion of Counsel
required by Section 21.02(i)(1);
(iv) [the Seller shall have delivered to the Trustee a
letter of a firm of independent certified public
accountants confirming that the conditions set forth
in Section were satisfied with respect to those
Subsequent Standard Receivables conveyed to the
Trustee on each Subsequent Transfer Date during the
related Collection Period, covering substantially the
same matters with respect to such Subsequent
Receivables as are set forth on Exhibit E to the
Standard Terms and Conditions of Agreement]; and
(v) the Seller shall have delivered to the Trustee an
Officers' Certificate confirming the satisfaction of
each condition specified in this paragraph (b)(2).
The Seller covenants that in the event any of the foregoing conditions
subsequent are not satisfied with respect to any Subsequent Standard Receivable
on the date required as specified above, the Seller will immediately repurchase
such Subsequent Standard Receivable from the Trustee, at a price equal to the
Purchase Amount thereof, in the manner specified in Section 14.05.
(c) The Seller covenants to transfer Subsequent Standard
Receivables to the Trustee pursuant to paragraph (a) above with an aggregate
Principal Balance equal to $[__________]. In the event that the Seller shall
fail to deliver and sell to the Trustee and/or the Agent any or all of such
Subsequent Receivables by the date on which the Funding Period ends and the
Pre-Funded Amount is greater than $[__________] on such date, the Seller shall
be obligated to deposit an amount equal to the Prepayment Premium into the
Certificate Distribution Account on the Distribution Date on which the Funding
Period ends (or, if the Funding Period does not end on a Distribution Date, on
the first Distribution Date following the end of the Funding Period); provided,
however, that the foregoing shall be the sole remedy of the Trustee, the Agent
or the Certificateholders with respect to a failure of the Seller to comply with
such covenant.]
ARTICLE IV
INCORPORATION OF STANDARD TERMS AND CONDITIONS
Section 4.01 Incorporation of Standard Terms and Conditions of
Agreement. This Pooling and Servicing Agreement does hereby incorporate by
reference the Standards Terms and Conditions of Agreement for World Omni Auto
Receivables Trusts dated as of (the "Standard Terms and Conditions of
Agreement"), in the form attached hereto.
-9-
ARTICLE V
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE SELLER
Section 5.01 Additional Representations and Warranties of the
Seller. The Seller makes the following representations and warranties on which
the Trustee relies in accepting the Standard Receivables in trust and executing
and authenticating the Certificates. Such representations and warranties speak
as of the execution and delivery of this Agreement and as of the Closing Date,
in the case of the Initial Receivables, and as of the applicable Subsequent
Transfer Date, in the case of the Subsequent Receivables, but shall survive the
sale, transfer and assignment of the Initial Standard Receivables and the
Subsequent Standard Receivables to the Trustee.
(a) Maturity of Receivables. Each Standard Receivable has a
final maturity date not later than [__________]; the weighted average remaining
term of the Initial Receivables is [__________] months as of the Initial Cutoff
Date.
(b) Financing. Approximately [_____]% of the aggregate
principal balance of the Initial Receivables, constituting [_____]% of the
number of Initial Receivables as of the Initial Cutoff Date, represent vehicles
financed at new vehicle rates; the remainder of the Initial Receivables
represent financing of used vehicles; approximately [_____]% of the aggregate
principal balance of the Initial Receivables represent financing of vehicles
manufactured or distributed by [__________]; 100% of the aggregate principal
balance of the Initial Receivables as of the Initial Cutoff Date represent
Simple Interest Receivables. The aggregate Principal Balance of the Initial
Receivables, as of the Initial Cutoff Date, is $[__________].
ARTICLE VI
ADDITIONAL PROVISIONS RELATING TO SERVICER
Section 6.01 World Omni Financial Corp. Not to Resign as
Servicer. Subject to the provisions of Section 17.03 of the Standard Terms and
Conditions of Agreement, World Omni Financial Corp. shall not resign from the
obligations and duties hereby imposed on it as Servicer under this Agreement
except upon determination that the performance of its duties under this
Agreement shall no longer be permissible under applicable law. Notice of any
such determination permitting the resignation of World Omni Financial Corp.
shall be communicated to the Trustee at the earliest practicable time (and, if
such communication is not in writing, shall be confirmed in writing at the
earliest practicable time) and any such determination shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee concurrently with or
promptly after such notice. No such resignation shall become effective until the
Trustee or a successor Servicer shall have assumed the responsibilities and
obligations of World Omni Financial Corp. in accordance with Section 18.02 of
the Standard Terms and Conditions of Agreement.
Section 6.02 Additional Covenant of the Servicer. If the
Servicer takes any action pursuant to Section 13.02 of the Standard Terms and
Conditions of Agreement that
-10-
impairs the rights of the Certificateholders in any Receivable, the Servicer
shall purchase such Receivable pursuant to Section 13.07 of the Standard Terms
and Conditions of Agreement.
-11-
IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee
have caused this Pooling and Servicing Agreement to be duly executed by their
respective officers as of the day and year first above written.
WORLD OMNI FINANCIAL CORP.,
as Seller
By: _____________________________________________
Name:
Title:
WORLD OMNI FINANCIAL CORP.,
as Servicer
By: _____________________________________________
Name:
Title:
[______________________________],
as Trustee
By: _____________________________________________
Name:
Title:
Schedule A
Schedule of Receivables
(To be delivered to the Trustee at Closing and supplemented on each Subsequent
Transfer Date on which Subsequent Standard Receivables are transferred to the
Trust)
A-1
Schedule B
Location of Receivable Files
World Omni Financial Corp.
▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
B-1
Schedule C
Schedule of Eligible Investment Receivables
(To be delivered on each Subsequent Transfer Date on which Eligible Investment
Receivables are delivered to Trust)
================================================================================
WORLD OMNI AUTO RECEIVABLES TRUSTS
STANDARD TERMS AND CONDITIONS OF AGREEMENT
Dated as of [__________]
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLES I-X
RESERVED
ARTICLE XI
DEFINITIONS
Section 11.01 Definitions...................................................................................1
Section 11.02 Other Definitional Provisions................................................................16
ARTICLE XII
THE RECEIVABLES
Section 12.01 Representations and Warranties of World Omni.................................................17
Section 12.02 [Reserved]...................................................................................20
Section 12.03 [Reserved]...................................................................................20
Section 12.04 Repurchase Upon Breach.......................................................................20
Section 12.05 Custody of Receivable Files..................................................................20
Section 12.06 Duties of Servicer as Custodian..............................................................20
Section 12.07 Instructions; Authority to Act...............................................................21
Section 12.08 Custodian's Indemnification..................................................................21
Section 12.09 Effective Period and Termination.............................................................21
ARTICLE XIII
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 13.01 Duties of Servicer...........................................................................22
Section 13.02 Collection and Allocation of Receivable Payments.............................................22
Section 13.03 Realization Upon Receivables.................................................................23
Section 13.04 Physical Damage Insurance....................................................................23
Section 13.05 Maintenance of Security Interests in Financed Vehicles.......................................23
Section 13.06 Covenants of Servicer........................................................................23
Section 13.07 Purchase of Receivables Upon Breach..........................................................23
Section 13.08 Servicing Fee................................................................................24
Section 13.09 Servicer's Certificate.......................................................................24
Section 13.10 Annual Statement as to Compliance; Notice of Default.........................................24
Section 13.11 Annual Independent Certified Public Accountant's Report......................................25
-i-
Section 13.12 Access to Certain Documentation and Information Regarding Receivables........................25
Section 13.13 Servicer Expenses............................................................................25
Section 13.14 Appointment of Subservicer...................................................................25
ARTICLE XIV
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO CERTIFICATEHOLDERS
Section 14.01 Establishment of Trust Accounts..............................................................26
Section 14.02 Collections..................................................................................28
Section 14.03 Application of Collections...................................................................28
Section 14.04 Advances.....................................................................................28
Section 14.05 Additional Deposits..........................................................................29
Section 14.06 Distributions................................................................................29
Section 14.07 Reserve Account..............................................................................31
Section 14.08 Pre-Funding Account..........................................................................32
Section 14.09 Statements to Certificateholders.............................................................33
Section 14.10 Accounting and Tax Returns...................................................................34
Section 14.11 Net Deposits.................................................................................34
Section 14.12 Transfer of the Class [B] Certificates.......................................................34
ARTICLE XV
THE CERTIFICATES
Section 15.01 The Certificates.............................................................................34
Section 15.02 Authentication of Certificates...............................................................35
Section 15.03 Registration of Transfer and Exchange of Certificates........................................35
Section 15.04 Limitations on Transfer of the Class [B] Certificates........................................36
Section 15.05 Mutilated, Destroyed, Lost, or Stolen Certificates...........................................37
Section 15.06 Persons Deemed Owners........................................................................37
Section 15.07 Access to List of Certificateholders' Names and Addresses....................................37
Section 15.08 Maintenance of Office or Agency..............................................................38
Section 15.09 Book-Entry Certificates......................................................................38
Section 15.10 Notices to Clearing Agency...................................................................39
Section 15.11 Definitive Certificates......................................................................39
ARTICLE XVI
THE SELLER
Section 16.01 Representations of Seller....................................................................39
Section 16.02 Existence....................................................................................41
Section 16.03 Liabilities of Seller; Indemnities...........................................................41
Section 16.04 Merger or Consolidation of, or Assumption of the Obligations of, Seller......................42
-ii-
Section 16.05 Limitation on Liability of Seller and Others.................................................42
Section 16.06 Seller May Own Certificates..................................................................42
ARTICLE XVII
THE SERVICER
Section 17.01 Representations of Servicer..................................................................42
Section 17.02 Indemnities of Servicer......................................................................44
Section 17.03 Merger or Consolidation of, or Assumption of the Obligations of, Servicer....................44
Section 17.04 Limitation on Liability of Servicer and Others...............................................45
ARTICLE XVIII
DEFAULT
Section 18.01 Events of Default............................................................................45
Section 18.02 Appointment of Successor.....................................................................46
Section 18.03 Repayment of Advances........................................................................47
Section 18.04 Notification to Certificateholders...........................................................47
Section 18.05 Waiver of Past Defaults......................................................................47
ARTICLE XIX
THE TRUSTEE
Section 19.01 Duties of Trustee............................................................................47
Section 19.02 Certain Matters Affecting Trustee............................................................48
Section 19.03 Trustee Not Liable for Certificates or Receivables...........................................49
Section 19.04 Trustee May Own Certificates.................................................................49
Section 19.05 Trustee's Fees and Expenses..................................................................49
Section 19.06 Eligibility Requirements for Trustee.........................................................50
Section 19.07 Resignation or Removal of Trustee............................................................50
Section 19.08 Successor Trustee............................................................................50
Section 19.09 Merger or Consolidation of Trustee...........................................................51
Section 19.10 Appointment of Co-Trustee or Separate Trustee................................................51
Section 19.11 Representations and Warranties of Trustee....................................................52
Section 19.12 No Bankruptcy Petition.......................................................................53
ARTICLE XX
TERMINATION
Section 20.01 Termination of the Trust.....................................................................53
Section 20.02 Optional Purchase of All Receivables.........................................................54
-iii-
ARTICLE XXI
MISCELLANEOUS PROVISIONS
Section 21.01 Amendment....................................................................................54
Section 21.02 Protection of Title to Trust.................................................................55
Section 21.03 Separate Counterparts........................................................................57
Section 21.04 Limitation on Rights of Certificateholders...................................................57
Section 21.05 Governing Law................................................................................58
Section 21.06 Notices......................................................................................58
Section 21.07 Severability of Provisions...................................................................58
Section 21.08 Assignment...................................................................................58
Section 21.09 Certificates Nonassessable and Fully Paid....................................................58
Section 21.10 Limitations on Rights of Others..............................................................59
Section 21.11 Headings.....................................................................................59
Section 21.12 Nonpetition Covenants........................................................................59
EXHIBITS
EXHIBIT A - Form of Class A Certificate
EXHIBIT B - Form of Class B Certificate
EXHIBIT C - [Form of Depository Agreement]
EXHIBIT D - Form of Servicer's Certificate
EXHIBIT E - [Form of Accountants' Letter]
EXHIBIT F - Form of Transferor Certificate
EXHIBIT G - Form of Investment Letter
EXHIBIT H - Form of Rule 144A Letter
EXHIBIT I - Subsequent Transfer Assignment No.
EXHIBIT J - Eligible Investment Transfer Assignment No.
-iv-
INTRODUCTION
These Standard Terms and Conditions of Agreement shall be
applicable to World Omni Auto Receivables Trust grantor trusts formed on or
after the date hereof with respect to which a Pooling and Servicing Agreement
incorporating by reference these Standard Terms and Conditions of Agreement
shall have been executed.
ARTICLES I-X
RESERVED
ARTICLE XI
DEFINITIONS
Section 11.01 Definitions. Whenever used in this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"Additional Amount" means the aggregate of all amounts
required to be deposited to the Reserve Account in connection with any
conveyance of Subsequent Receivables pursuant to an Agreement.
"Advance" means a Simple Interest Advance.
"Affiliate" means, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" means a pooling and servicing agreement among
World Omni, as seller and servicer, and the Trustee named in such agreement in
respect of any World Omni Auto Receivables Trust that is a grantor trust.
"Amount Financed" means (a) with respect to a Standard
Receivable or Eligible Investment Standard Receivable, as applicable, the amount
advanced under such Standard Receivable or Eligible Investment Standard
Receivable toward the purchase price of the Financed Vehicle and any related
costs, exclusive of any amount allocable to the premium of force-placed physical
damage insurance covering the Financed Vehicle.
"Annual Percentage Rate" or "APR" of a Receivable means the
annual rate of finance charges stated in the related Contract.
"Benefit Plan" has the meaning set forth in Section 15.04(b).
"Book-Entry Certificates" means, unless otherwise specified in
the Agreement, a beneficial interest in the Class [A] Certificates, ownership
and transfers of which shall be registered through book entries by a Clearing
Agency as described in Section 15.09.
"Business Day" means any day other than a Saturday, a Sunday
or a day on which banking institutions or trust companies in The City of New
York are authorized or obligated by law, regulation or executive order to be
closed.
"Certificate Balance" means, as of any date, the aggregate
outstanding principal amount of the Certificates at such date.
"Certificate Owner" means, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Book-Entry
Certificate, as reflected on the books of the Clearing Agency or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Certificateholder" or "Holder" means a Person in whose name a
Certificate is registered in the Certificate Register.
"Certificate Register" and "Certificate Registrar" mean the
register maintained and the registrar appointed pursuant to Section 15.03.
"Certificates" shall have the meaning set forth in the
Agreement.
"Class [A] Certificate Balance" means, as of any date of
determination, the Initial Class [A] Certificate Balance, as specified in the
Agreement, reduced by all amounts previously distributed to Holders of Class [A]
Certificates and allocable to principal.
"Class [A] Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class [A] Principal Distributable Amount and
the Class [A] Interest Distributable Amount for such date.
"Class [A] Interest Carryover Shortfall" means, with respect
to any Distribution Date, the excess of the sum of the Class [A] Monthly
Interest Distributable Amount for the preceding Distribution Date and any
outstanding Class [A] Interest Carryover Shortfall on such preceding
Distribution Date, over the amount in respect of interest that Holders of the
Class [A] Certificates actually received on such preceding Distribution Date,
plus 30 days' interest on such excess, to the extent permitted by law, at the
Class [A] Pass-Through Rate.
"Class [A] Interest Distributable Amount" means, with respect
to any Distribution Date, the sum of the Class [A] Monthly Interest
Distributable Amount for such Distribution Date and the Class [A] Interest
Carryover Shortfall for such Distribution Date. Unless otherwise specified in
the Agreement, interest with respect to the Class [A] Certificates shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
"Class [A] Monthly Interest Distributable Amount" means, with
respect to any Distribution Date, 30 days of interest (or, in the case of the
first Distribution Date, interest
-2-
accrued from and including the Closing Date to but excluding such Distribution
Date) at the Class [A] Pass-Through Rate on the Class [A] Certificate Balance on
the last day of the preceding Collection Period (or, in the case of the first
Distribution Date, on the Closing Date).
"Class [A] Monthly Principal Distributable Amount" means, with
respect to any Distribution Date, the Class [A] Percentage of the Principal
Distribution Amount.
"Class [A] Pass-Through Rate" shall have the meaning specified
in the Agreement.
"Class [A] Percentage" means the aggregate undivided ownership
interest in the Trust represented by the Class [A] Certificates, as specified in
the Agreement.
"Class [A] Principal Carryover Shortfall" means, as of the
close of any Distribution Date, the excess of the Class [A] Monthly Principal
Distributable Amount and any outstanding Class [A] Principal Carryover Shortfall
from the preceding Distribution Date, over the amount in respect of principal
that is actually distributed to Holders of the Class [A] Certificates on such
current Distribution Date.
"Class [A] Principal Distributable Amount" means, with respect
to any Distribution Date, the sum of the Class [A] Monthly Principal
Distributable Amount for such Distribution Date and the Class [A] Principal
Carryover Shortfall as of the closing of the preceding Distribution Date;
provided, however, that the Class [A] Principal Distributable Amount shall not
exceed the Class [A] Certificate Balance. In addition, on the Final Scheduled
Distribution Date, the principal required to be included in the Class [A]
Principal Distributable Amount will include the lesser of (a) the Class [A]
Percentage of any principal due and remaining unpaid on each Simple Interest
Receivable in the Trust as of the Final Scheduled Maturity Date or (b) the
amount that is necessary (after giving effect to the other amounts to be
deposited in the Distribution Account on such Distribution Date and allocable to
principal) to reduce the Class [A] Certificate Balance to zero.
"Class [B] Certificate Balance" means, as of any date of
determination, the Initial Class [B] Certificate Balance, as specified in the
Agreement, reduced by all amounts previously distributed to Holders of Class [B]
Certificates and allocable to principal.
"Class [B] Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class [B] Principal Distributable Amount and
the Class [B] Interest Distributable Amount.
"Class [B] Interest Carryover Shortfall" means, with respect
to any Distribution Date, the excess of the sum of the Class [B] Interest
Distributable Amount for the preceding Distribution Date and any outstanding
Class [B] Interest Carryover Shortfall on such preceding Distribution Date, over
the amount in respect of interest that Holders of the Class [B] Certificates
actually received on such preceding Distribution Date, plus 30 days' interest on
such excess, to the extent permitted by law, at the Class [B] Pass-Through Rate.
"Class [B] Interest Distributable Amount" means, with respect
to any Distribution Date, the sum of the Class [B] Monthly Interest
Distributable Amount for such Distribution Date
-3-
and the Class [B] Interest Carryover Shortfall for such Distribution Date.
Unless otherwise specified in the Agreement, interest with respect to the Class
[B] Certificates shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
"Class [B] Monthly Interest Distributable Amount" means, with
respect to any Distribution Date, 30 days of interest (or, in the case of the
first Distribution Date, interest accrued from and including the Closing Date to
but excluding such Distribution Date) at the Class [B] Pass-Through Rate on the
Class [B] Certificate Balance on the last day of the preceding Collection Period
(or, in the case of the first Distribution Date, on the Closing Date).
"Class [B] Monthly Principal Distributable Amount" means, with
respect to any Distribution Date, the Class [B] Percentage of the Principal
Distribution Amount.
"Class [B] Pass-Through Rate" shall have the meaning specified
in the Agreement.
"Class [B] Percentage" means the aggregate undivided ownership
interest in the Trust represented by the Class [B] Certificates, as specified in
the Agreement.
"Class [B] Principal Carryover Shortfall" means, as of the
close of any Distribution Date, the excess of the Class [B] Monthly Principal
Distributable Amount and any outstanding Class [B] Principal Carryover Shortfall
from the preceding Distribution Date, over the amount in respect of principal
that is actually distributed to Holders of the Class [B] Certificates on such
current
"Class [B] Principal Distributable Amount" means, with respect
to any Distribution Date, the sum of the Class [B] Monthly Principal
Distributable Amount for such Distribution Date and the Class [B] Principal
Carryover Shortfall as of the close of the preceding Distribution Date;
provided, however, that the Class [B] Principal Distributable Amount shall not
exceed the Class [B] Certificate Balance. In addition, on the Final Scheduled
Distribution Date, the principal required to be included in the Class [B]
Principal Distributable Amount will include the lesser of (a) the Class [B]
Percentage of any principal due and remaining unpaid on each Simple Interest
Receivable in the Trust as of the Final Scheduled Maturity Date or (b) the
amount that is necessary (after giving effect to the other amounts to be
deposited in the Distribution Account on such Distribution Date and allocable to
principal) to reduce the Class [B] Certificate Balance to zero.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" with respect to each Trust shall have the
meaning set forth in the applicable Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
-4-
"Collection Account" means the account designated as such,
established and maintained pursuant to Section 14.01.
"Collection Period" means a calendar month (or in the case of
the first Distribution Date, the period from and including the Initial Cutoff
Date to and including the last day of the calendar month in which the Closing
Date occurs). Any amount stated as of the last day of a Collection Period or as
of the first day of a Collection Period shall give effect to the following
calculations as determined as of the close of business on such last day: (1) all
applications of collections, (2) all Advances and reductions of Advances and (3)
all distributions to be made on the following Distribution Date.
"Corporate Trust Office" means the principal office of the
Trustee at the address set forth in the related Agreement or at such other
address as the Trustee may designate from time to time by notice to
Certificateholders, the Seller and the Servicer, or the principal corporate
trust office of any successor Trustee (of which address such successor Trustee
shall notify the Certificateholders, the Seller and Servicer).
"Cutoff Date" means, with respect to any Receivable or
Eligible Investment Receivable, as applicable, the date as of which collections
on such Receivable or Eligible Investment Receivable will be included in a Trust
pursuant to the related Agreement.
"Dealer" means the dealer who sold a Financed Vehicle and who
originated and assigned the related Receivable to under an existing agreement
between such dealer and World Omni.
"Definitive Certificates" shall have the meaning specified in
Section 15.11.
"Delivery" when used with respect to Trust Account Property
means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-105(1)(i) of the UCC and are
susceptible of physical delivery, transfer thereof to the Trustee or its nominee
or custodian by physical delivery to the Trustee or its nominee or custodian
endorsed to, or registered in the name of, the Trustee or its nominee or
custodian or endorsed in blank, and, with respect to a certificated security (as
defined in Section 8-102 of the UCC) transfer thereof (i) by delivery of such
certificated security endorsed to, or registered in the name of, the Trustee or
its nominee or custodian or endorsed in blank to a financial intermediary (as
defined in Section 8-313 of the UCC) and the making by such financial
intermediary of entries on its books and records identifying such certificated
securities as belonging to the Trustee or its nominee or custodian and the
sending by such financial intermediary of a confirmation of the purchase of such
certificated security by the Trustee or its nominee or custodian, or (ii) by
delivery thereof to a "clearing corporation" (as defined in Section 8-102(3) of
the UCC) and the making by such clearing corporation of appropriate entries on
its books reducing the appropriate securities account of the transferor and
increasing the appropriate securities account of a financial intermediary by the
amount of such certificated security, the identification by the clearing
corporation of the certificated securities for the sole and exclusive account of
the financial intermediary, the maintenance of such certificated securities by
such
-5-
clearing corporation or a "custodian bank" (as defined in Section 8-102(4)
of the UCC) or the nominee of either, subject to the clearing corporation's
exclusive control, the sending of a confirmation by the financial intermediary
of the purchase by the Trustee or its nominee or custodian of such securities
and the making by such financial intermediary of entries on its books and
records identifying such certificated securities as belonging to the Trustee or
its nominee or custodian (all of the foregoing, "Physical Property"), and, in
any event, any such Physical Property in registered form shall be in the name of
the Trustee or its nominee or custodian; and such additional or alternative
procedures as may hereafter become appropriate to effect the complete transfer
of ownership of any such Trust Account Property to the Trustee or its nominee or
custodian, consistent with changes in applicable law or regulations or the
interpretation thereof;
(b) with respect to any securities issued by the U.S.
Treasury, the Federal Home Loan Mortgage Corporation or by the Federal National
Mortgage Association that is a book-entry security held through the Federal
Reserve System pursuant to federal book-entry regulations, the following
procedures, all in accordance with applicable law, including applicable federal
regulations and Articles 8 and 9 of the UCC: book-entry registration of such
Trust Account Property to an appropriate book-entry account maintained with a
Federal Reserve Bank by a financial intermediary that is also a "depository"
pursuant to applicable federal regulations and issuance by such financial
intermediary of a deposit advice or other written confirmation of such
book-entry registration to the Trustee or its nominee or custodian of the
purchase by the Trustee or its nominee or custodian of such book-entry
securities; the making by such financial intermediary of entries in its books
and records identifying such book-entry security held through the Federal
Reserve System pursuant to federal book-entry regulations as belonging to the
Trustee or its nominee or custodian and indicating that such custodian holds
such Trust Account Property solely as agent for the Trustee or its nominee or
custodian; and such additional or alternative procedures as may hereafter become
appropriate to effect complete transfer of ownership of any such Trust Account
Property to the Trustee or its nominee or custodian, consistent with changes in
applicable law or regulations or the interpretation thereof; and
(c) with respect to any item of Trust Account Property that is
an uncertificated security under Article 8 of the UCC and that is not governed
by clause (b) above, registration on the books and records of the issuer thereof
in the name of the financial intermediary, the sending of a confirmation by the
financial intermediary of the purchase by the Trustee or its nominee or
custodian of such uncertificated security, the making by such financial
intermediary of entries on its books and records identifying such uncertificated
certificates as belonging to the Trustee or its nominee or custodian.
"Determination Date" means the Business Day of each calendar
month, unless a different date is identified in an Agreement as the
Determination Date for the purposes of such Agreement.
"Distribution Account" means the account designated as such,
established and maintained pursuant to Section 14.01.
"Distribution Date" with respect to each Trust shall have the
meaning set forth in the applicable Agreement.
-6-
"Duff & ▇▇▇▇▇▇" means Duff & ▇▇▇▇▇▇ Credit Rating Company, or
its successor.
"Eligible Deposit Account" means either (a) a segregated
account with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the laws
of the United States of America or any one of the states thereof or the District
of Colombia (or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long as any
of the securities of such depository institution shall have a credit rating from
each Rating Agency in one of its generic rating categories that signifies
investment grade.
"Eligible Institution" means (a) the corporate trust
department of the Trustee or any other entity specified in the Agreement or (b)
a depository institution organized under the laws of the United States of
America or any one of the states thereof or the District of Columbia (or any
domestic branch of a foreign bank), which (i) has either (A) a long-term
unsecured debt rating of AAA or better by Standard & Poor's and A1 or better by
Moody's or (B) a certificate of deposit rating of A-1+ by Standard & Poor's and
P-1 or better by Moody's or any other long-term, short-term or certificate of
deposit rating acceptable to the Rating Agencies and (ii) whose deposits are
insured by the FDIC. If so qualified, the Trustee or any such other entity
specified in the Agreement may be considered an Eligible Institution for the
purposes of clause (b) of this definition.
"Eligible Investment Receivable" means (i) any Eligible
Investment Standard Receivable.
"Eligible Investment Standard Receivable" means any contract
that is listed on Schedule C to an Agreement (which Schedule may be in the form
of microfiche), as such Schedule shall be supplemented to reflect the transfer
of Eligible Investment Receivables to the related Trust on Subsequent Transfer
Dates.
"Eligible Investment Transfer Assignment" means a written
assignment substantially in the form of Exhibit K.
"Eligible Investments" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
[(a) direct obligations of, and obligations fully
guaranteed as to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of
deposit of any depository institution or trust company incorporated under the
laws of the United States of America or any state thereof (of any domestic
branch of a foreign bank) and subject to supervision and examination by Federal
or State banking or depository institution authorities; provided, however, that
at the time of the investment or contractual commitment to invest therein, the
commercial paper or other short-term unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a Person other than
such depository institution or trust company) thereof shall have a credit rating
from each of the Rating Agencies in the highest investment category granted
thereby;
-7-
(c) commercial paper having, at the time of the
investment or contractual commitment to invest therein, a rating from each of
the Rating Agencies in the highest investment category granted thereby;
(d) investments in money market funds having a rating
from each of the Rating Agencies in the highest investment category granted
thereby (including funds for which the Trustee or any of its Affiliates is
investment manager or advisor);
(e) bankers' acceptances issued by any depository
institution or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security
that is a direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in either
case entered into with a depository institution or trust company (acting as
principal) described in clause (b);
(g) repurchase obligations with respect to any security
or whole loan, entered into with (i) a depository institution or trust company
(acting as principal) described in clause (b) above (except that the rating
referred to in the provision in such clause (b) shall be A-1 or higher in the
case of Standard & Poor's)(such depository institution or trust company being
referred to in this definition as a "financial institution"), (ii) a
broker/dealer (acting as principal) registered as a broker or dealer under
Section 15 of the Exchange Act (a "broker/dealer") the unsecured short-term debt
obligations of which are rated P-1 by Moody's and at least A-1 by Standard &
Poor's at the time of entering into such repurchase obligation (a "rated
broker/dealer"), (iii) an unrated broker/dealer (an "unrated broker/dealer"),
acting as principal, that is a wholly-owned subsidiary of a non-bank holding
company the unsecured short-term debt obligations of which are rated P-1 by
Moody's and at least A-1 by Standard & Poor's at the time of entering into such
repurchase obligation (a "Rated Holding Company") or (iv) an unrated subsidiary
(a "Guaranteed Counterparty"), acting as principal, that is a wholly-owned
subsidiary of a direct or indirect parent Rated Holding Company, that guarantees
such subsidiary's obligations under such repurchase agreement; provided that the
following conditions are satisfied:
(1) the aggregate amount of funds invested in repurchase
obligations of a financial institution, [____________________] a rated
broker/dealer, [____________________] an unrated broker/dealer or Guaranteed
Counterparty in respect of which Standard & Poor's unsecured short-term ratings
are A-1 (in the case of an unrated broker/dealer or Guaranteed Counterparty,
such rating being that of the Rated Holding Company) shall not exceed 20% of the
Certificate Balance (there being no limit on the amount of funds that may be
invested in repurchase obligations in respect of which such Standard & Poor's
rating is A-1+ (in the case of an unrated broker/dealer or Guaranteed
Counterparty, such rating being that of the related Rated Holding Company));
(2) in the case of the Reserve Account and the
Pre-Funding Account, the rating from Standard & Poor's in respect of the
unsecured short-term debt obligations of the financial institution, rated
broker/dealer, unrated broker/dealer or Guaranteed Counterparty (in
-8-
the case of an unrated broker/dealer or Guaranteed Counterparty, such rating
being that of the related Rated Holding Company) shall be A-1+;
(3) the repurchase obligation must mature within 30 days
of the date on which the Trustee on behalf of the Trust, enters into such
repurchase obligation;
(4) the repurchase obligation shall not be subordinated
to any other obligation of the related financial institution, rated
broker/dealer, unrated broker/dealer or Guaranteed Counterparty;
(5) the collateral subject to the repurchase obligation
is held, in the appropriate form, by a custodial bank on behalf of the Trustee;
(6) the repurchase obligation shall require that the
collateral subject thereto shall be marked to market daily;
(7) in the case of a repurchase obligation of a
Guaranteed Counterparty, the following conditions shall also be satisfied:
(A) the Trustee shall have received an opinion
of counsel (which may be in-house counsel) to the effect that the guarantee of
the related Rated Holding Company is a legal, valid and binding agreement of the
Rated Holding Company, enforceable in accordance with its terms, subject as to
enforceability to bankruptcy, insolvency, reorganization and moratorium or other
similar laws affecting creditor's rights generally and to general equitable
principles;
(B) the Trustee shall have received (x) an
incumbency certificate for the signer of such guarantee, certified by an officer
of such Rated Holding Company, (y) a resolution, certified by an officer of the
Rated Holding Company and (z) a resolution, certified by an officer of the Rated
Holding Company, of the board of directors (or applicable committee thereof) of
the Rated Holding Company authorizing the execution, delivery and performance of
such guarantee by the Rated Holding Company;
(C) the only conditions to the obligation of
such Rated Holding Company to pay on behalf of the Guaranteed Counterparty shall
be that the Guaranteed Counterparty shall not have paid under such repurchase
obligation when required (it being understood that not notice to, demand on or
other action in respect of the Guaranteed Counterparty is necessary) and that
Trustee or the Trust shall make a demand on the Rated Holding Company to make
the payment due under such guarantee;
(D) the guarantee of the Rated Holding Company
shall be irrevocable with respect to such repurchase obligation and shall not be
subordinated to any other obligation of the Rated Holding Company; and
(E) each of Standard & Poor's and Moody's has
confirmed in writing to the Trustee that it has reviewed the form of the
guarantee of the Rated Holding Company and has determined that the issuance of
such guarantee will not result in the downgrade or withdrawal of the ratings
assigned to the Certificates.
-9-
(8) the repurchase obligation shall require that the
repurchase obligation be overcollateralized and shall provide that, upon any
failure to maintain such overcollateralization, the repurchase obligation shall
become due and payable, and unless the repurchase obligation is satisfied
immediately, the collateral subject to the repurchase agreement shall be
liquidated and the proceeds applied to satisfy the unsatisfied portion of the
repurchase obligation.
(h) Eligible Investment Receivables; provided that
Eligible Investment Receivables shall be Eligible Investments only for funds in
the Reserve Account and only to the extent of the portion of the Specified
Reserve Account Balance specified in the Agreement in clause (ii) of the
definition of "Specified Reserve Account Balance"; and
(i) any other investment with respect to which the
Trustee or the Servicer has received written notification from the Rating
Agencies that the acquisition of such investment as an Eligible Investment will
not result in a withdrawal or downgrading of the ratings of the Certificates.]
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Event of Default" means an event specified in Section 18.01.
"FDIC" means the Federal Deposit Insurance Corporation.
"Final Scheduled Distribution Date" means the date specified
in an Agreement as the final scheduled distribution date with respect to the
related Certificates.
"Final Scheduled Maturity Date" means the final scheduled
maturity date specified in an Agreement in respect of the Receivables
transferred to the Trust under such Agreement.
"Financed Vehicle" means an automobile or light-duty truck,
together with all accessions thereto, securing an Obligor's indebtedness under
the respective Standard Receivable.
"Fitch" means Fitch IBCA, Inc., or its successor.
"Funding Period" with respect to each Trust shall have the
meaning set forth in the applicable Agreement.
"Initial Cutoff Date" means the date or dates as of which
Initial Receivables, if any, are conveyed to a Trust pursuant to the related
Agreement.
"Initial Receivables" means the Standard Receivables conveyed
to a Trust on the Closing Date and listed on Schedule A to the related
Agreement.
"Insolvency Event" means, with respect to a specified Person,
(a) the filing of a decree or order for relief by a court having jurisdiction in
the premises in respect of such Person or any substantial part of its property
in an involuntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver,
-10-
liquidator, assignee, custodian, trustee, sequestrator, or similar official for
such Person or for any substantial part of its property, or ordering the
winding-up or liquidation or such Person's affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or (b)
the commencement by such Person of a voluntary case under any applicable federal
or state bankruptcy, insolvency or other similar law now or hereafter in effect,
or the consent by such Person to the entry of an order for relief in an
involuntary case under any such law, or the consent by such Person to the
appointment of or taking possession by, a receiver, liquidator, assignee,
custodian, trustee, sequestrator, or similar official for such Person or for any
substantial part of its property, or the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person generally
to pay its debts as such debts become due, or the taking of action by such
Person in furtherance of any of the foregoing.
"Interest Distribution Amount" means, with respect to any
Distribution Date, the sum of the following amounts in respect of the preceding
Collection Period: (i) that portion of all collections on Receivables allocable
to interest, (ii) Liquidation Proceeds with respect to the Receivables to the
extent allocable to interest due thereon in accordance with the Servicer's
customary servicing procedures; (iii) all Advances made by the Servicer of
interest due on Receivables, (iv) the Purchase Amount of each Receivable that
became a Purchased Receivable during the related Collection Period to the extent
attributable to accrued interest on such Receivable (v) Recoveries for such
Collection Period, and (vi) Investment Earnings for such Collection Period;
provided, however, that in calculating the Interest Distribution Amount the
following will be excluded: (i) all payments and proceeds (including Liquidation
Proceeds) of any Purchased Receivables the Purchase Amount of which has been
included in the Interest Distribution Amount in a prior Collection Period; (ii)
the sum for all Simple Interest Receivables of collections on each such Simple
Interest Receivable received during the preceding Collection Period in excess of
the amount of interest that would be due on the aggregate Principal Balance of
the Simple Interest Receivables during such Collection Period at their
respective APRs if a payment were received on each Simple Interest Receivable
during such Collection Period on the date payment is due under the terms of the
related Contract; (iii) Liquidation Proceeds with respect to a Simple Interest
Receivable attributable to accrued and unpaid interest thereon (but not
including interest for the then current Collection Period) but only to the
extent of any unreimbursed Simple Interest Advances; and (iv) amounts released
from the Pre-Funding Account.
"Investment Earnings" means, with respect to any Distribution
Date, the investment earnings (net of losses and investment expenses) on amounts
on deposit in the Trust Accounts to be deposited to the Distribution Account on
such Distribution Date pursuant to Section 14.01(b).
"Lien" means a security interest, lien, charge, pledge,
equity, or encumbrance of any kind, other than tax liens, mechanics' liens and
any liens that attach to the respective Receivable by operation of law as a
result of any act or omission by the related Obligor.
"Liquidated Receivable" means any Receivable or Eligible
Investment Receivable, as applicable, liquidated by the Servicer through sale of
a Financed Vehicle or otherwise.
-11-
"Liquidation Proceeds" means, with respect to a Liquidated
Receivable, the monies collected in respect thereof, from whatever source,
during the Collection Period in which such Receivable or Eligible Investment
Receivable, as applicable, became a Liquidated Receivable, net of the sum of any
amounts expended by the Servicer in connection with such liquidation, plus any
amounts required by law to be remitted to the Obligor.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or its
successor.
"Obligor" on a Receivable means the purchaser or co-purchasers
of the Financed Vehicle and any other Person who owes payments under the
Receivable.
"Officers' Certificate" means a certificate signed by the (a)
chairman of the board, the president, any executive vice president or any vice
president and (b) any treasurer, assistant treasurer, secretary or assistant
secretary of the Seller or the Servicer, as appropriate.
"Opinion of Counsel" means one or more written opinions of
counsel, who may be an employee of or counsel to the Seller or the Servicer,
which counsel shall be acceptable to the Trustee or Rating Agencies, as
applicable.
"Original Pool Balance" means the sum, as of any date, of the
Pool Balance as of the Initial Cutoff Date, plus the aggregate Principal Balance
of the Subsequent Receivables, if any, sold to the Trust, as of their respective
Cutoff Dates.
"Outstanding Simple Interest Advances" on the Simple Interest
Receivables means the sum, as of the close of business on the last day of a
Collection Period, of all Simple Interest Advances, reduced as provided in
Section 14.04(b).
"Person" means any individual, corporation, estate,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"Physical Property" has the meaning assigned to such term in
the definition of "Delivery" above.
"Pool Balance" means, as of the close of business on the last
day of a Collection Period, the aggregate Principal Balance of the Receivables
as of such date (excluding Purchased Receivables and Liquidated Receivables).
"Pool Factor" means, as of the close of business on the last
day of a Collection Period, a seven-digit decimal figure equal to the Pool
Balance divided by the Original Pool Balance. The Pool Factor will be 1.0000000
as of the Initial Cutoff Date; thereafter, the Pool Factor will decline to
reflect reductions in the Pool Balance.
"Pre-Funded Amount" means, with respect to any Distribution
Date, the amount on deposit in the Pre-Funding Account. The amount, if any, to
be deposited initially to the Pre-Funding Account will be specified in the
Agreement.
-12-
"Pre-Funded Percentage" means, with respect to the Class [A]
Certificates and the Class [B] Certificates, the quotient (expressed as a
percentage) of (i) the initial Class [A] Certificate Balance or Class [B]
Certificate Balance, as the case may be, and (ii) the Initial Certificate
Balance.
"Pre-Funding Account" means the Trust Account established
pursuant to (a)(ii).
"Prepayment Premium" means the Class [A] Prepayment Premium or
the Class [B] Prepayment Premium, or both, as specified in the Agreement.
"Principal Balance" means the Amount Financed minus the sum,
as of the close of business on the last day of a Collection Period, of (a) the
portion of all payments made by or on behalf of the related Obligor on or prior
to such day and allocable to principal using the Simple Interest Method and (b)
any payment of the Purchase Amount allocable to principal.
"Principal Distribution Amount" means, for any Distribution
Date, the sum of the following amounts with respect to the preceding Collection
Period: (i) that portion of all collections on Receivables allocable to
principal; (ii) all Liquidation Proceeds attributable to the principal amount of
Receivables that became Liquidated Receivables during the Collection Period in
accordance with the Servicer's customary servicing procedures, plus the amount
of Realized Losses with respect to such Liquidated Receivables; (iii) to the
extent attributable to principal, the Purchase Amount received with respect to
each Receivable that became a Purchased Receivable during the related Collection
Period; (iv) partial prepayments relating to refunds of extended warranty
protection plan costs or of physical damage, credit life or disability insurance
policy premiums, but only if such costs or premiums were financed by the
respective Obligor as of the date of the original contract; and (v) on the Final
Scheduled Distribution Date, any amounts advanced by the Servicer on such Final
Scheduled Distribution Date with respect to principal on the Receivables.
"Purchase Amount" means the amount, as of the close of
business on the last day of a Collection Period, required to prepay in full a
Receivable or Eligible Investment Receivable, as applicable, under the terms
thereof including interest to the end of the month of purchase.
"Purchased Receivable" means a Receivable or Eligible
Investment Receivable, as applicable, purchased as of the close of business on
the last day of a Collection Period by the Servicer pursuant to Section 13.07 or
by the Seller pursuant to Section 12.04.
"Rating Agency" means Moody's and Standard & Poor's and, for
purposes of (b) of the Agreement only, Fitch and Duff & ▇▇▇▇▇▇. If no such
organization or successor is any longer in existence, "Rating Agency" shall mean
any nationally recognized statistical rating organization or other comparable
Person designated by the Seller, notice of which designation shall be given to
the Trustee and the Servicer. Any notice required to be given to a Rating Agency
pursuant to this Agreement shall also be given to Fitch and Duff & ▇▇▇▇▇▇,
although, except as set forth above, neither shall be deemed a Rating Agency for
any purposes of this Agreement.
"Rating Agency Condition" means, with respect to any action,
that each Rating Agency shall have been given 10 days' (or such shorter period
as shall be acceptable to each
-13-
Rating Agency) prior notice thereof and that each of the Rating Agencies shall
have notified the Seller, the Servicer and the Trustee in writing that such
action will not result in a reduction or withdrawal of the then current rating
of the Certificates.
"Realized Losses" means, with respect to any Receivable or
Eligible Investment Receivable, as applicable, that becomes a Liquidated
Receivable, the excess of the Principal Balance of such Liquidated Receivable
over Liquidation Proceeds to the extent allocable to principal.
"Receivable" means any Standard Receivable.
"Receivable Files" means the documents specified in Section
12.05.
"Record Date" with respect to each Distribution Date means the
first day of the calendar month in which such Distribution Date occurs, unless
otherwise specified in the Agreement.
"Recoveries" means, with respect to any Receivable or Eligible
Investment Receivable, as applicable, that becomes a Liquidated Receivable,
monies collected in respect thereof, from whatever source, during any Collection
Period following the Collection Period in which such Receivable or Eligible
Investment Receivable became a Liquidated Receivable, net of the sum of any
amounts expended by the Servicer for the account of the Obligor and any amounts
required by law to be remitted to the Obligor.
"Reserve Account" means the account designated as such,
established and maintained pursuant to Section 14.01(a)(iv).
"Reserve Account Initial Deposit" with respect to a Trust
shall have the meaning set forth in the Agreement.
"Seller" means World Omni Auto Receivables LLC., a Delaware
limited liability company, and its successors in interest to the extent
permitted hereunder.
"Servicer" means World Omni Financial Corp., a Florida
corporation, as the servicer of the Receivables, and each successor Servicer
pursuant to Section 17.03 or 18.02.
"Servicer's Certificate" means an Officers' Certificate of the
Servicer delivered pursuant to Section 13.09, substantially in the form of
Exhibit D.
"Servicing Fee" means the fee payable to the Servicer for
services rendered during each Collection Period, determined pursuant to Section
13.08.
"Servicing Rate" means, unless otherwise specified in the
Agreement, 1.00%
"Simple Interest Advance" means the amount of interest, as of
the close of business on the last day of a Collection Period, which the Servicer
is required to advance on the Simple Interest Receivables pursuant to Section
14.04(b).
-14-
"Simple Interest Method" means the method of allocating a
fixed level payment to principal and interest, pursuant to which the portion of
such payment that is allocated to interest is equal to the product of the fixed
rate of interest multiplied by the unpaid principal balance multiplied by the
period of time elapsed since the preceding payment of interest was made and the
remainder of such payment is allocable to principal.
"Simple Interest Receivable" means any Receivable or Eligible
Investment Receivable, as applicable, under which the portion of a payment
allocable to interest and the portion allocable to principal is determined in
accordance with the Simple Interest Method.
"Specified Reserve Account Balance" means the amount of funds
generally required to be maintained in the Reserve Account, determined as
specified in the Agreement.
"Standard & Poor's" means Standard & Poor's Ratings Group, or
its successor.
"Standard Receivable" means any contract that is listed on
Schedule A (which schedule may be in the form of microfiche), as such Schedule
shall be supplemented to reflect the transfer of Subsequent Receivables, if any,
to the Trust pursuant to the Agreement.
"Subsequent Cutoff Date" means any date as of which particular
Subsequent Receivables are conveyed to a Trust pursuant to the Agreement.
"Subsequent Receivables" means the Standard Receivables
transferred to a Trust pursuant to the Agreement, which shall be listed on
Schedule A to the related Subsequent Transfer Assignment.
"Subsequent Transfer Assignment" means a written assignment
substantially in the form of Exhibit J.
"Subsequent Transfer Date" means, with respect to Subsequent
Receivables, any date during the Funding Period on which Subsequent Receivables
are to be transferred to a Trust and a Subsequent Transfer Assignment is
executed and delivered to the related Trustee pursuant to the Agreement and,
with respect to Eligible Investment Receivables, any date on which Eligible
Investment Receivables are to be transferred to a Trust and an Eligible
Investment Transfer Assignment is executed and delivered to the related Trustee
pursuant to the Agreement.
"Total Distribution Amount" means, for each Distribution Date,
the sum of the Interest Distribution Amount and the Principal Distribution
Amount (other than the portion thereof attributable to Realized Losses).
"Trust" shall have the meaning set forth in the Agreement.
"Trust Account Property" with respect to each Trust means the
Trust Accounts, all amounts and investments held from time to time in any Trust
Account (whether in the form of deposit accounts, Physical Property, book-entry
securities, uncertificated securities or otherwise), including the Reserve
Account Initial Deposit, and all proceeds of the foregoing.
"Trust Accounts" has the meaning assigned thereto in Section
14.01.
-15-
"Trustee" with respect to each Trust shall have the meaning
assigned thereto in the Agreement.
"Trustee Officer" means any officer within the Corporate Trust
Office of the Trustee, including the chairman or vice-chairman of the board of
directors, the chairman or vice-chairman of the executive committee of the board
of directors, the president, any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"UCC" means the Uniform Commercial Code as in effect in the
State of New York on the date hereof.
"World Omni" means World Omni Financial Corp., a Florida
corporation.
Section 11.02 Other Definitional Provisions. (a) All terms
defined in this Standard Terms and Conditions of Agreement or any Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto or thereto unless otherwise defined therein.
(b) As used herein, in any Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
not defined herein or in such Agreement or in any such certificate or other
document, and accounting terms partly defined herein or in such Agreement or in
any such certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms herein, in
any related Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained herein, in such Agreement or in any such
certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and word of
similar import when used herein shall refer to these Standard Terms and
Conditions of Agreement and the Agreement as a whole and not to any particular
provision of the Standard Terms and Conditions of Agreement or the Agreement;
Article, Section, Schedule and Exhibit references contained in the Standard
Terms and Conditions of Agreement or any Agreement are references to Articles,
Sections, Schedules and Exhibits in or to the Standard Terms and Conditions of
Agreement and the Agreement, respectively; and the term "including" shall mean
"including without limitation".
(d) The definitions contained in these Standard Terms and
Conditions of Agreement and the Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred
to herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of
-16-
agreements or instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE XII
THE RECEIVABLES
Section 12.01 Representations and Warranties of World Omni.
World Omni which sold the related Receivable hereby represents and warrants to
the other parties hereto and to the Noteholders, with respect to such Receivable
as of the Closing Date:
(i) [Characteristics of Receivables. Each Standard Receivable
(a) shall have been originated in the United States of America by a Dealer for
the retail sale of a Financed Vehicle in the ordinary course of such Dealer's
business, shall have been fully and properly executed by the parties thereto,
shall have been purchased by the Seller from World Omni, which, in turn, shall
have purchased such Standard Receivable from such Dealer under an existing
dealer agreement with World Omni, shall have created or shall create a valid,
subsisting and enforceable first priority security interest in favor of World
Omni in the Financed Vehicle, which security interest has been assigned by World
Omni to the Seller, and shall be assignable by the Seller, (c) shall contain
customary and enforceable provisions such that the rights and remedies of the
holder thereof shall be adequate for realization against the collateral of the
benefits of the security, and (d) shall provide for level monthly payments that
fully amortize the Amount Financed by maturity and yield interest at the Annual
Percentage Rate.
(ii) Schedule of Receivables. The information set forth in
Schedule A to each Agreement and Schedule A to any Subsequent Transfer
Assignment shall be true and correct in all material respects as of the opening
of business on the related Cutoff Date, and no selection procedures believed to
be adverse to the Certificateholders shall have been utilized in selecting the
Standard Receivables. Each computer tape or other listing regarding the Standard
Receivables made available to the Trustee shall be true and correct in all
respects.
(iii) Compliance with Law. Each Standard Receivable and the
sale of the Financed Vehicle shall comply at the time of the execution of the
Agreement in all material respects with all requirements of applicable federal,
state and local laws and regulations thereunder, including, without limitation,
usury laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act,
the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal
Reserve Board's Regulations B and Z, the Texas Consumer Credit Code, and State
adaptations of the National Consumer Act and of the Uniform Consumer Credit
Code, and other consumer credit laws and equal credit opportunity and disclosure
laws.
(iv) Binding Obligation. Each Standard Receivable shall
represent the genuine, legal, valid and binding payment obligation in writing of
the Obligor, enforceable by the holder thereof in accordance with its terms.
-17-
(v) No Government Obligor. None of the Standard Receivables
shall be due from the United States of America or any State or from any agency,
department or instrumentality of the United States of America or any State.
(vi) Security Interest in Financed Vehicle. Immediately prior
to the sale, assignment and transfer thereof, each Standard Receivable shall be
secured by a validly perfected first security interest in the Financed Vehicle
in favor of the Seller as secured party or all necessary and appropriate actions
shall have been commenced that would result in the valid perfection of a first
security interest in the Financed Vehicle in favor of the Seller as secured
party.
(vii) Receivables in Force. No Standard Receivable shall have
been satisfied, subordinated or rescinded, nor shall any Financed Vehicle have
been released from the lien granted by the related Standard Receivable in whole
or in part.
(viii) No Waiver. No provision of a Standard Receivable shall
have been waived.
(ix) No Amendments. No Standard Receivable shall have been
amended such that the amount of the Obligor's Scheduled Payments shall have been
increased except for increases resulting from the inclusion of any premiums for
forced placed physical damage insurance covering the Financed Vehicle.
(x) No Defenses. No right of rescission, setoff, counterclaim
or defense shall have been asserted or threatened with respect to any Standard
Receivable.
(xi) No Liens. To the best of the Seller's knowledge, no liens
or claims shall have been filed for work, labor or materials relating to a
Financed Vehicle that shall be liens prior to, or equal or coordinate with, the
security interest in the Financed Vehicle granted by the Standard Receivable.
(xii) No Default. No Standard Receivable has a payment that is
more than 90 days overdue as of the related Cutoff Date, and, except as
permitted in this paragraph, no default, breach, violation or event permitting
acceleration under the terms of any Standard Receivable has occurred; and no
continuing condition that with notice or the lapse of time would constitute a
default, breach, violation or event permitting acceleration under the terms of
any Standard Receivable has arisen; and the Seller has not waived and shall not
waive any of the foregoing.
(xiii) Insurance. The Seller, in accordance with its customary
procedures, shall have determined that the Obligor has obtained physical damage
insurance covering the Financed Vehicle and under the terms of the Standard
Receivable the Obligor is required to maintain such insurance.
(xiv) Title. It is the intention of the Seller that the
transfer and assignment herein contemplated constitute a sale of the Standard
Receivables from the Seller to the Trust and that the beneficial interest in and
title to the Standard Receivables not be part of the debtor's estate in the
event of the filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Standard Receivable has been sold, transferred, assigned or
pledged by the
-18-
Seller to any Person other than the Trustee. Immediately prior to the transfer
and assignment herein contemplated, the Seller had good and marketable title to
each Standard Receivable free and clear of all Liens, encumbrances, security
interests and rights of others and, immediately upon the transfer thereof, the
Trustee, for the benefit of the Certificateholders, shall have good and
marketable title to each such Standard Receivable, free and clear of all Liens,
encumbrances, security interests and rights of others; and the transfer has been
perfected under the UCC.
(xv) Lawful Assignment. No Standard Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction under which
the sale, transfer and assignment of such Standard Receivable under the
Agreement or any Subsequent Transfer Assignment or pursuant to transfers of the
Certificates shall be unlawful, void or voidable.
(xvi) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to give the Trustee a first perfected ownership
interest in the Standard Receivables shall have been made.
(xvii) One Original. There shall be only one original executed
copy of each Standard Receivable.
(xviii) Scheduled Payments. (a) Each Standard Receivable has a
scheduled due date on or prior to the end of the month following the related
Cutoff Date and (b) no Standard Receivable has a payment that is more than 90
days overdue as of the related Cutoff Date, and has a final scheduled payment
date no later than the Final Scheduled Maturity Date.
(xix) Location of Receivable Files. The Receivable Files are
kept at one or more of the locations listed in Schedule B to the Agreement.
(xx) Remaining Maturity. The latest scheduled maturity of any
Standard Receivable shall be no later than the Final Scheduled Maturity Date.
(xxi) Outstanding Principal Balance. Each Standard Receivable
has an outstanding gross balance of at least $1,000.
(xxii) No Bankruptcies. No Obligor on any Standard Receivable
as of the related Subsequent Cutoff Date was noted in the related Receivable
File as having filed for bankruptcy.
(xxiii) No Repossessions. No Financed Vehicle securing any
Standard Receivable is in repossession status.
(xxiv) Chattel Paper. Each Standard Receivable constitutes
"chattel paper" under the UCC.
(xxv) Agreement. The representations and warranties contained
herein and in the Agreement shall be true and correct.
(xxvi) Remaining Maturity. The latest scheduled maturity of
any Standard Receivable shall be no later than the Final Scheduled Maturity
Date.]
-19-
Section 12.02 [Reserved]
Section 12.03 [Reserved]
Section 12.04 Repurchase Upon Breach. The Seller, the Servicer
or the Trustee, as the case may be, shall inform the other parties to the
Agreement promptly, in writing, upon the discovery of any breach of the Seller's
representations and warranties made pursuant to Section 12.01 or 16.01. Unless
any such breach shall have been cured by the last day of the second Collection
Period following the discovery thereof by the Trustee or receipt by the Trustee
of notice from the Seller or the Servicer of such breach, the Seller shall be
obligated to repurchase any Standard Receivable materially and adversely
affected by any such breach as of such last day (or, at the Seller's option, the
last day of the first Collection Period following such discovery or notice). In
consideration of the repurchase of any Standard Receivable, the Seller shall
remit the Purchase Amount, in the manner specified in Section 14.05. Subject to
the provisions of Section 16.03, the sole remedy of the Trustee, the Trust or
the Certificateholders with respect to a breach of representations and
warranties pursuant to Section 12.01 or 16.01 and the agreement contained in
this Section shall be to require the Seller to repurchase Standard Receivables
pursuant to this Section 12.04, subject to the conditions contained herein.
Section 12.05 Custody of Receivable Files. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Trustee, upon the execution and delivery of the Agreement, hereby revocably
appoints the Servicer, and the Servicer hereby accepts such appointment, to act
as the agent of the Trustee as custodian of the following documents or
instruments which are hereby constructively delivered to the Trustee as of the
earlier of the Initial Cutoff Date and the Closing Date (in the case of Initial
Receivables) and as of each Subsequent Transfer Date (in the case of Subsequent
Receivables) with respect to each Receivable:
(i) the original of the Standard Receivable;
(ii) the original credit application fully executed by the
Obligor;
(iii) the original certificate of title or such documents that
the Servicer or the Seller shall keep on file, in accordance with its customary
procedures, evidencing the security interest of the Seller in the Financed
Vehicle; and
(iv) any and all other documents that the Servicer or the
Seller shall keep on file, in accordance with its customary procedures, relating
to a Standard Receivable, an Obligor or a Financed Vehicle.
Section 12.06 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer shall hold the Receivable Files
as custodian on behalf of the Trustee for the benefit of all present and future
Certificateholders, and shall maintain such accurate and complete accounts,
records and computer systems pertaining to each Receivable File as shall enable
the Trustee to comply with these Standard Terms and Conditions of Agreement and
the Agreement. In performing its duties as custodian the Servicer shall act with
reasonable care, using that degree of skill and attention that the Servicer
exercises with
-20-
respect to the receivable files relating to all comparable automotive
receivables that the Servicer services for itself or others. The Servicer shall
conduct, or cause to be conducted, periodic audits of the Receivable Files held
by it under the Agreement, and of the related accounts, records and computer
systems, in such a manner as shall enable the Trustee to verify the accuracy of
the Servicer's record keeping. The Servicer shall promptly report to the Trustee
any failure on its part to hold the Receivable Files and maintain its accounts,
records and computer systems as herein provided and shall promptly take
appropriate action to remedy any such failure. Nothing herein shall be deemed to
require an initial review or any periodic review by the Trustee of the
Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall
maintain each Receivable File at one of its offices specified in Schedule B to
the Agreement or at such other office as shall be specified to the Trustee by
written notice not later than 90 days after any change in location. The Servicer
shall make available to the Trustee or its duly authorized representatives,
attorneys or auditors a list of locations of the Receivable Files and the
related accounts, records and computer systems maintained by the Servicer at
such times during normal business hours as the Trustee shall instruct.
(c) Release of Documents. Upon instruction from the Trustee,
the Servicer shall release any Receivable File to the Trustee, the Trustee's
agent or the Trustee's designee, as the case may be, at such place or places as
the Trustee may designate, as soon as practicable.
Section 12.07 Instructions; Authority to Act. The Servicer
shall be deemed to have received proper instructions with respect to the
Receivable Files upon its receipt of written instructions signed by a Trustee
Officer.
Section 12.08 Custodian's Indemnification. The Servicer as
custodian shall indemnify the Trustee and each of its officers, directors,
employees and agents for any and all liabilities, obligations, losses,
compensatory damages, payments, costs, or expenses of any kind whatsoever that
may be imposed on, incurred by or asserted against the Trustee or any of its
officers, directors, employees or agents as the result of any improper act or
omission in any way relating to the maintenance and custody by the Servicer as
custodian of the Receivable Files; provided, however, that the Servicer shall
not be liable to the Trustee or any such officers, director, employee or agent
of the Trustee for any portion of any such amount resulting from the willful
misfeasance, bad faith or negligence of the Trustee or any such officer,
director, employee or agent of the Trustee. Section 12.09 Effective Period and
Termination. The Servicer's appointment as custodian shall become effective as
of the Initial Cutoff Date or, if no Initial Receivables are conveyed to the
Trustee, the Closing Date and shall continue in full force and effect until
terminated pursuant to this
Section 12.09. If World Omni shall resign as Servicer in
accordance with the provisions hereof or if all of the rights and obligations of
any Servicer shall have been terminated under Section 18.01, the appointment of
such Servicer as custodian shall be terminated by the Trustee, or by Holders of
the [Class [A]] Certificates evidencing not less than 25% of the [Class [A]]
Certificate Balance, in the same manner as the Trustee or such Holders may
terminate the rights and obligations of the Servicer under Section 18.01. The
Trustee may terminate the Servicer's appointment as custodian, with cause, at
any time upon written
-21-
notification to the Servicer, and without cause upon 30 days' prior written
notification. As soon as practicable after any termination of such appointment,
the Servicer shall deliver the Receivable Files to the Trustee or the Trustee's
agent at such place or places as the Trustee may reasonably designate.
ARTICLE XIII
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 13.01 Duties of Servicer. The Servicer, as agent for
the Trustee (to the extent provided herein), shall manage, service, administer
and make collections on the Receivables (other than Purchased Receivables) with
reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to all comparable automotive receivables that it services
for itself or others. The Servicer's duties shall include collection and posting
of all payments, responding to inquiries of Obligors on such Receivables,
investigating delinquencies, sending payment coupons to Obligors, reporting tax
information to Obligors, accounting for collections, furnishing monthly and
annual statements to the Trustee with respect to distributions, and making
Advances pursuant to Section 14.04. Subject to the provisions of Section 13.02,
the Servicer shall follow its customary standards, policies and procedures in
performing its duties as Servicer. Without limiting the generality of the
foregoing, the Servicer is authorized and empowered by the Trustee to execute
and deliver, on behalf of itself, the Trust, the Certificateholders, the
Trustee, or any of them, any and all instruments of satisfaction or
cancellation, or partial or full release or discharge, and all other comparable
instruments, with respect to such Receivables or to the Financed Vehicles
securing such Receivables. If the Servicer shall commence a legal proceeding to
enforce a Receivable, the Trustee (in the case of any Receivable other than a
Purchased Receivable) shall thereupon be deemed to have automatically assigned,
solely for the purpose of collection, such Receivable to the Servicer. If in any
enforcement suit or legal proceeding it shall be held that the Servicer may not
enforce a Receivable on the ground that it shall not be a real party in interest
or a holder entitled to enforce such Receivable, the Trustee shall, at the
Servicer's expense and direction, take steps to enforce such Receivable,
including bringing suit in its name or the name of the Certificateholders. The
Trustee shall, upon written request of the Servicer, furnish the Servicer with
any powers of attorney and other documents reasonably necessary or appropriate
to enable the Servicer to carry out its servicing and administrative duties
hereunder.
Section 13.02 Collection and Allocation of Receivable
Payments. The Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Receivables as and when the
same shall become due and shall follow such collection procedures as it follows
with respect to all comparable automotive receivables that it services for
itself or others. The Servicer shall allocate collections between principal and
interest in accordance with the customary servicing procedures it follows with
respect to all comparable automotive receivables that it services for itself or
others. The Servicer may grant extensions, rebates or adjustments on a Standard
Receivable, which shall not, for the purposes of the Agreement, modify the
original due dates or amounts of the originally scheduled payments of interest
on Simple Interest Receivables; provided, however, that if the Servicer extends
the date for final payment by the Obligor of any Receivable beyond the Final
Scheduled Maturity Date, it
-22-
shall promptly repurchase the Receivable from the Trust in accordance with the
terms of Section 13.07. The Servicer may in its discretion waive any late
payment charge or any other fees that may be collected in the ordinary course of
servicing a Receivable. The Servicer shall not agree to any alteration of the
interest rate on any Receivable or of the amount of the originally scheduled
payments on Simple Interest Receivables.
Section 13.03 Realization Upon Receivables. On behalf of the
Trust, the Servicer shall use its best efforts, consistent with its customary
servicing procedures, to repossess or otherwise convert the ownership of the
Financed Vehicle securing any Receivable as to which the Servicer shall have
determined eventual payment in full is unlikely. The Servicer shall follow such
customary and usual practices and procedures as it shall deem necessary or
advisable in its servicing of automotive receivables, which may include
reasonable efforts to realize upon any recourse to Dealers and selling the
Financed Vehicle at public or private sale. The foregoing shall be subject to
the provision that, in any case in which the Financed Vehicle shall have
suffered damage, the Servicer shall not expend funds in connection with the
repair or the repossession of such Financed Vehicle unless it shall determine in
its discretion that such repair and/or repossession will increase the
Liquidation Proceeds by an amount greater than the amount of such expenses.
Section 13.04 Physical Damage Insurance. The Servicer, in
accordance with its customary servicing procedures, shall require that each
Obligor shall have obtained physical damage insurance covering the Financed
Vehicle as of the execution of the Standard Receivable.
Section 13.05 Maintenance of Security Interests in Financed
Vehicles. The Servicer shall, in accordance with its customary servicing
procedures, take such steps as are necessary to maintain perfection of the
security interest created by each Standard Receivable in the related Financed
Vehicle. The Trustee hereby authorizes the Servicer to take such steps as are
necessary to re-perfect such security interest on behalf of the Trust in the
event of the relocation of a Financed Vehicle or for any other reason.
Section 13.06 Covenants of Servicer. The Servicer shall not
release the Financed Vehicle securing any Receivable from the security interest
granted by such Receivable in whole or in part except in the event of payment in
full by the Obligor thereunder or repossession, nor shall the Servicer impair
the rights of the Trust or the Certificateholders in such Receivables, nor shall
the Servicer increase the number of scheduled payments due under a Standard
Receivable.
Section 13.07 Purchase of Receivables Upon Breach. The
Servicer or the Trustee shall inform the other party and the Seller promptly, in
writing, upon the discovery of any breach pursuant to Section 13.02, 13.05 or
13.06. Unless the breach shall have been cured by the last day of the second
Collection Period following such discovery (or, at the Servicer's election, the
last day of the first following Collection Period), the Servicer shall purchase
any Receivable materially and adversely affected by such breach as of such last
day. If the Servicer takes any action in any Collection Period pursuant to
Section 13.02 that impairs the right of the Trustee, the Trust or the
Certificateholders in any Receivable or as otherwise provided in Section 13.02,
the Servicer shall purchase such Receivable as of the last day of such
Collection Period. In consideration of the purchase of any such Receivable
pursuant to either of the two
-23-
preceding sentences, the Servicer shall remit the Purchase Amount in the manner
specified in Section 14.05. For purposes of this Section 13.07, the Purchase
Amount shall consist in part of a release by the Servicer of all rights of
reimbursement with respect to Outstanding Simple Interest Advances on the
Receivable. Subject to Section 17.02, the sole remedy of the Trustee, the Trust
or the Certificateholders with respect to a breach pursuant to Section 13.02,
13.05 or 13.06 shall be to require the Servicer to repurchase Receivables
pursuant to this Section 13.07. The Trustee shall have no duty to conduct any
affirmative investigation as to the occurrence of any condition requiring the
repurchase of any Receivable pursuant to this Section.
Section 13.08 Servicing Fee. The Servicing Fee for a
Distribution Date shall equal the product of (a) one twelfth, (b) the Servicing
Rate and (c) the Pool Balance as of the first day of the preceding Collection
Period. The Servicer shall also be entitled to all late fees, prepayment charges
(including, in the case of a Receivable that provides for payments according to
the "Rule of 78s" and that is prepaid in full, the difference between the
Principal Balance of such Receivable (plus accrued interest to the date of
prepayment) and the principal balance of such Receivable computed according to
the "Rule of 78s") and other administrative fees or similar charges allowed by
applicable law with respect to the Receivables, collected (from whatever source)
on the Receivables, plus any reimbursement pursuant to Section 17.02.
Section 13.09 Servicer's Certificate. Not later than 11:00 am
(New York time) on each Determination Date, the Servicer shall deliver to the
Trustee, the Rating Agencies and the Seller, a Servicer's Certificate containing
all information necessary to make the distributions on the related Distribution
Date pursuant to Section 14.06 for the related Collection Period. Receivables to
be purchased by the Servicer or to be repurchased by the Seller shall be
identified by the Servicer by account number with respect to such Receivable (as
specified in Schedule A).
Section 13.10 Annual Statement as to Compliance; Notice of
Default. (a) The Servicer shall deliver to the Trustee, on or before April 30 of
each year, an Officers' Certificate, dated as of December 31 of the preceding
year, stating that (i) a review of the activities of the Servicer during the
preceding 12-month period (or such shorter period as shall have elapsed since
the Closing Date) and of its performance hereunder and under the Agreement has
been made under such officers' supervision and (ii) to the best of such
officers' knowledge, based on such review, the Servicer has fulfilled all its
obligations hereunder and under the Agreement throughout such year or, if there
has been a default in the fulfillment of any such obligation, specifying each
such default known to such officers and the nature and status thereof. The
Trustee shall send a copy of such certificate and the report referred to in
Section 13.11 to the Rating Agencies. A copy of such certificate and the report
referred to in Section 13.11 may be obtained by any Certificateholder by a
request in writing to the Trustee addressed to the Corporate Trust Office.
(b) The Servicer shall deliver to the Trustee and to the
Rating Agencies, promptly after having obtained knowledge thereof, but in no
event later than 5 Business Days thereafter, written notice in an Officers'
Certificate of any event which with the giving of notice or lapse of time, or
both, would become an Event of Default under clause (iii) or (iv) of Section
18.01(a) or (b).
-24-
Section 13.11 Annual Independent Certified Public Accountant's
Report. The Servicer shall cause a firm of independent certified public
accountants, who may also render other services to the Servicer, the Seller or
their Affiliates, to deliver to the Trustee on or before April 30 of each year
beginning April 30, ______, a report addressed to the Board of Directors of the
Servicer to the effect that such firm has examined the financial statements of
World Omni and issued its report thereon and that such examination (1) was made
in accordance with generally accepted auditing standards and accordingly
included such tests of the accounting records and such other auditing procedures
as such firm considered necessary in the circumstances; (2) included tests
relating to automotive loans serviced for others in accordance with the
requirements of the Uniform Single Audit Program for Mortgage Bankers (the
"Program"), to the extent the procedures in such Program are applicable to the
servicing obligations set forth herein; and (3) except as described in the
report, disclosed no exceptions or errors in the records relating to automobile
and light truck loans serviced for others that, in the firm's opinion, paragraph
four of such Program requires such firm to report.
The Report will also indicate that the firm is independent of
the Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
Section 13.12 Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to the Certificateholders
access to the Receivable Files in such cases where the Certificateholder shall
be required by applicable statutes or regulations to review such documentation.
Access shall be afforded without charge, but only upon reasonable request and
during the normal business hours at the offices of the Servicer. Nothing in this
Section shall affect the obligation of the Servicer to observe any applicable
law prohibiting disclosure of information regarding the Obligors, and the
failure of the Servicer to provide access to information as a result of such
obligation shall not constitute a breach of this Section.
Section 13.13 Servicer Expenses. The Servicer shall be
required to pay all expenses incurred by it in connection with its activities
hereunder, including fees and disbursements of independent accountants, taxes
imposed on the Servicer and expenses incurred in connection with distributions
and reports to Certificateholders.
Section 13.14 Appointment of Subservicer. The Servicer may at
any time appoint a subservicer to perform all or any portion of its obligations
as Servicer hereunder; provided that the Rating Agency Condition shall have been
satisfied in connection therewith; and, provided further that the Servicer shall
remain obligated and shall be liable to the Trustee and the Certificateholders
for the servicing and administering of the Receivables in accordance with the
provisions hereof without diminution of such obligation and liability by virtue
of the appointment of such subservicer and to the same extent and under the same
terms and conditions as if the Servicer alone were servicing and administering
the Receivables. The fees and expenses of the subservicer shall be as agreed
between the Servicer and its subservicer from time to time, and none of the
Trust, the Trustee or the Certificateholders shall have any responsibility
therefor.
-25-
ARTICLE XIV
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO CERTIFICATEHOLDERS
Section 14.01 Establishment of Trust Accounts. (a) (i) The
Servicer, for the benefit of the Certificateholders, shall establish and
maintain in the name of the Trustee an Eligible Deposit Account (the "Collection
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders.
(ii) The Servicer, for the benefit of the Certificateholders,
shall establish and maintain in the name of the Trustee an Eligible Deposit
Account (the "Pre-Funding Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Certificateholders.
(iii) The Servicer, for the benefit of the Certificateholders,
shall establish and maintain in the name of the Trustee an Eligible Account (the
"Distribution Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Certificateholders.
(iv) The Servicer, for the benefit of the Certificateholders,
shall establish and maintain in the name of the Trustee an Eligible Deposit
Account (the "Reserve Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Certificateholders.
(b) Funds on deposit in the Collection Account, the
Pre-Funding Account, the Distribution Account and the Reserve Account
(collectively the "Trust Accounts") shall be invested by the Trustee in Eligible
Investments selected in writing by the Servicer or an investment manager
selected by the Servicer, which investment manager shall have agreed to comply
with the terms of these Standard Terms and Conditions of Agreement and the
Agreement as they relate to investing such funds; provided, however, that it is
understood and agreed that the Trustee shall not be liable for any loss arising
from such investment in Eligible investments. All such Eligible Investments
shall be held by the Trustee for the benefit of the Certificateholders;
PROVIDED, that on each Determination Date all interest and other investment
income (net of losses and investment expenses) on funds on deposit therein shall
be deposited into the Collection Account and shall be deemed to constitute a
portion of the Interest Distribution Amount; and, provided further that any
interest and other investment income on Eligible Investment Receivables in the
Reserve Account earned in respect of a Collection Period shall be deposited in
the Collection Account on the second Determination Date following such
Collection Period and shall be deemed to constitute a portion of the Interest
Distribution Amount for the related Distribution Date. Other than as permitted
by the Rating Agencies, funds on deposit in the Collection Account, the
Pre-Funding Account, the Reserve Account and the Distribution Account shall be
invested in Eligible Investments that will mature (A) not later than the
Business Day immediately preceding the next Distribution Date or (B) on such
next Distribution Date if either (x) such investment is held in the trust
department of the institution with which the Collection Account, the Pre-Funding
Account, the Reserve Account or the Distribution Account, as applicable, is then
maintained and is invested in a time deposit of [the Trustee] rated at least A-1
by Standard & Poor's and P-1 by Moody's (such account being maintained within
the trust department of [the
-26-
Trustee]) or (y) the Trustee (so long as the short-term unsecured debt
obligations of the Trustee are either (i) rated at least P-1 by Moody's and A-1
by Standard & Poor's on the date such investment is made or (ii) guaranteed by
an entity whose short-term unsecured debt obligations are rated at least P-1 by
Moody's and A-1 by Standard & Poor's on the date such investment is made) has
agreed to advance funds on such Distribution Date to the Distribution Account in
the amount payable on such investment on such Distribution Date pending receipt
thereof to the extent necessary to make distributions on such Distribution Date;
provided that Eligible Investment Receivables need not satisfy such maturity
requirements. The guarantee referred to in clause (y) of the preceding sentence
shall be subject to the Rating Agency Condition. For the purpose of the
foregoing, unless the Trustee affirmatively agrees in writing to make such
advance with respect to such investment prior to the time an investment is made,
it shall not be deemed to have agreed to make such advance. Funds deposited in a
Trust Account upon the maturity of any Eligible Investments on the day
immediately preceding a Distribution Date are not required to be invested
overnight.
(c) (i) The Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Trust Accounts
and in all proceeds thereof (including all income thereon) and all such
funds, investments, proceeds and income shall be part of the Trust Estate.
The Trust Accounts shall be under the sole dominion and control of the
Trustee for the benefit of the Certificateholders. If, at any time, any of
the Trust Accounts ceases to be an Eligible Deposit Account, the Trustee
(or the Servicer on its behalf) shall within 10 Business Days (or such
longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) establish a new Trust Account as an Eligible Deposit
Account and shall transfer any cash and/or any investments to such new
Trust Account.
(ii) With respect to the Trust Account Property, the Trustee
agrees, by its acceptance hereof, that:
(A) any Trust Account Property that is held in deposit
accounts shall be held solely in the Eligible Deposit
Accounts, subject to the last sentence of Section
14.01(c)(i); and each such Eligible Deposit Account
shall be subject to the exclusive custody and control
of the Trustee, and the Trustee shall have sole
signature authority with respect thereto;
(B) any Trust Account Property that constitutes Physical
Property shall be delivered to the Trustee in
accordance with paragraph (a) of the definition of
"Delivery" and shall be held, pending maturity or
disposition, solely by the Trustee or a financial
intermediary (as such term is defined in Section
8-313(4) of the UCC) acting solely for the Trustee;
(C) any Trust Account Property that is a book-entry
security held through the Federal Reserve System
pursuant to federal book-entry regulations shall be
delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by
the Trustee, pending maturity or
-27-
disposition, through continued book-entry
registration of such Trust Account Property as
described in such paragraph; and
(D) (i) any Trust Account Property that is an
"uncertificated security" under Article VIII of the
UCC and that is not governed by clause (C) above
shall be delivered to the Trustee in accordance with
paragraph (c) of the definition of "Delivery" and
shall be maintained by the Trustee, pending maturity
or disposition, through continued registration of the
Trustee's (or its nominee's) ownership of such
security.
(ii) The Servicer shall have the power, revocable by
the Trustee, to instruct the Trustee to make
withdrawals and payments from the Trust Accounts for
the purpose of permitting the Servicer to carry out
its respective duties hereunder.
Section 14.02 Collections. The Servicer shall remit within two
Business Days of receipt thereof to the Collection Account all payments by or on
behalf of the Obligors with respect to the Receivables (other than Purchased
Receivables) and all Liquidation Proceeds, both as collected during the
Collection Period. Notwithstanding the foregoing, for so long as (i) World Omni
remains the Servicer, (ii) no Event of Default shall have occurred and be
continuing and (iii) (x) World Omni is a wholly-owned subsidiary of World Omni
and World Omni maintains a short-term rating of at least A-1 by Standard &
Poor's and P-1 by Moody's (and for five Business Days following a reduction in
either such rating) or (y) prior to ceasing daily remittances, the Rating Agency
Condition shall have been satisfied (and any conditions or limitations imposed
by the Rating Agencies in connection therewith are complied with), the Servicer
shall remit such collections with respect to the preceding calendar month to the
Collection Account on the Determination Date immediately preceding the related
Distribution Date. For purposes of this Article XIV the phrase "payments by or
on behalf of Obligors" shall mean payments made with respect to the Receivables
by Persons other than
Section 14.03 Application of Collections. All collections for
the Collection Period shall be applied by the Servicer as follows:
With respect to each Receivable (other than a
Purchased Receivable), payments by or on behalf of the Obligor
shall be applied first, to reduce Outstanding Simple Interest
Advances to the extent described in Section 14.04(b). Next,
any excess shall be applied to interest and principal in
accordance with the Simple Interest Method.
Section 14.04 Advances. (a) As of the close of business on the
last day of each Collection Period, if the payments by or on behalf of the
Obligor on a Precomputed Receivable (other than a Purchased Receivable) shall be
less than the Scheduled Payment, the Payahead Balance shall be applied by the
Servicer to the extent of the shortfall and such Payahead Balance shall be
reduced accordingly. Next, the Servicer shall advance any remaining shortfall
(such amount a "Precomputed Advance"), to the extent that the Servicer, at its
sole discretion, shall determine that the Precomputed Advance shall be
recoverable from the Obligor, the Purchase
-28-
Amount, Liquidation Proceeds or proceeds of any other Precomputed Receivables.
With respect to each Precomputed Receivable, the Precomputed Advance shall
increase Outstanding Precomputed Advances. Outstanding Precomputed Advances
shall be reduced by subsequent payments by or on behalf of the Obligor,
collections of Liquidation Proceeds in respect of Precomputed Receivables, or
payments of the Purchase Amount in respect of Precomputed Receivables.
(b) At the close of business on the last day of each
Collection Period, the Servicer shall advance an amount equal to the amount of
interest due on the Simple Interest Receivables at their respective APR's for
the related Collection Period (assuming the Simple Interest Receivables pay on
their respective due dates) minus the amount of interest actually received on
the Simple Interest Receivables during the related Collection Period (such
amount, a "Simple Interest Advance"). With respect to each Simple Interest
Receivable, the Simple Interest Advance shall increase Outstanding Simple
Interest Advances. If such calculation results in a negative number, an amount
equal to such negative number shall be paid to the Servicer and the amount of
Outstanding Simple Interest Advances shall be reduced by such amount. In
addition, in the event that a Simple Interest Receivable becomes a Liquidated
Receivable, Liquidation Proceeds with respect to such Simple Interest Receivable
attributable to accrued and unpaid interest thereon (but not including interest
for the then current Collection Period) shall be paid to the Servicer to reduce
Outstanding Simple Interest Advances, but only to the extent of any Outstanding
Simple Interest Advances. The Servicer shall not make any advance with respect
to principal of Simple Interest Receivables or in respect of Eligible Investment
Receivables.
Section 14.05 Additional Deposits. The Servicer shall deposit
in the Collection Account the aggregate Advances pursuant to Section 14.04. To
the extent that the Servicer fails to make a Simple Interest Advance pursuant to
Section 14.04(b) on the date required, the Trustee shall withdraw such amount
(or, if determinable, such portion of such amount as does not represent advances
for delinquent interest) from the Reserve Account and deposit such amount in the
Collection Account. The Servicer and the Seller shall deposit or cause to be
deposited in the Collection Account the aggregate Purchase Amount with respect
to Purchased Receivables, and the Servicer shall deposit therein all amounts to
be paid under Section 20.02. The Servicer shall deposit the aggregate Purchase
Amount with respect to Purchased Receivables when such obligations are due,
unless the Servicer shall not be required to make daily deposits pursuant to
Section 14.02.
Section 14.06 Distributions. (a) On each Distribution Date,
the Trustee shall cause to be transferred from the Collection Account to the
Distribution Account, in immediately available funds, the entire amount then on
deposit in the Collection Account; provided, however, that in the event that the
Servicer is required to make deposits to the Collection Account on a daily basis
pursuant to Section 14.02, the amount of the funds transferred from the
Collection Account to the Distribution Account will include only those funds
that were deposited in the Collection Account for the Collection Period related
to such Distribution Date.
(b) On each Distribution Date, the Trustee (based on the
information contained in the Servicer's Certificate delivered on the related
Determination Date pursuant to
-29-
Section 14.09) shall distribute amounts on deposit in the Distribution Account
and, if applicable, the Reserve Account in the manner and priority set forth
below:
(i) to the Servicer, from the Interest Distribution Amount,
the Servicing Fee and all unpaid Servicing Fees from prior Collection
Periods;
(ii) to the Class [A] Certificateholders:
(B) from the Class [A] Percentage of the Interest
Distribution Amount (except as provided in the
proviso to subsection (c)(i) below) (as such Interest
Distribution Amount has been reduced by Servicing Fee
payments), the Class [A] Interest Distributable
Amount;
(C) from the Class [A] Percentage of the Principal
Distribution Amount, the Class [A] Principal
Distributable Amount;
(iii) to the Class [B] Certificateholders:
(A) from the Class [B] Percentage of the Interest
Distribution Amount (as such Interest Distribution
Amount has been reduced by Servicing Fee payments),
the Class [B] Interest Distributable Amount; and
(B) from the Class [B] Percentage of the Principal
Distribution Amount, the sum of the Class [B]
Principal Distributable Amount.
(c) The rights of the Class [B] Certificateholders to receive
distributions in respect of the Class [B] Certificates shall be and hereby are
subordinated to the rights of the Class [A] Certificateholders to receive
distributions in respect of the Class [A] Certificates and the rights of the
Servicer to receive the Servicing Fee (and any accrued and unpaid Servicing Fees
from prior Collection Periods) in the event of delinquency or defaults on the
Receivables. Such subordination shall be effected as follows, and all payments
shall be effected pursuant to clause (i) below prior to any payments pursuant to
clause (ii):
(i) If the Class [A] Percentage of the Interest
Distribution Amount (as such Interest Distribution
Amount has been reduced by Servicing Fee payments) is
less than the Class [A] Interest Distributable Amount
on any Distribution Date, the Class [A]
Certificateholders shall be entitled to receive
distributions in respect of such deficiency first,
from the Class [B] Percentage of the Interest
Distribution Amount; second, if such amounts are
insufficient, from amounts on deposit in the Reserve
Account; and third, if such amounts are insufficient,
from the Class [B] Percentage of the Principal
Distribution Amount; provided, however, that if the
amount of Simple Interest Advances required to be
made for the Collection Period have not been paid by
the Servicer or withdrawn from the Reserve Account,
the shortfall in either such amount shall be
allocated pro rata between the Class [A] Certificates
and the Class [B] Certificates and any such shortfall
with respect to the Class [A] Certificates (and any
Class [A] Carryover Shortfalls attributable thereto)
shall be paid only from amounts
-30-
that are or become available in the Reserve Account
after giving effect to any deposit thereto on such
day.
(ii) If the Class [A] Percentage of the Principal
Distribution Amount is less than the sum of the Class
[A] Principal Distributable Amount on any
Distribution Date, the Class [A] Certificateholders
shall be entitled to receive distributions in respect
of such deficiency first, from the Class [B]
Percentage of the Principal Distribution Amount;
second, if such amounts are insufficient, from
amounts on deposit in the Reserve Account; and third,
if such amounts are insufficient, from the Class [B]
Percentage of the Interest Distribution Amount.
(d) Subject to Section 20.01 respecting the final payment upon
retirement of each Certificate, the Servicer shall on each Distribution Date
instruct the Trustee to distribute to each Certificateholder of record on the
preceding Record Date either by wire transfer in immediately available funds to
the account of such Holder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Servicer appropriate instructions prior to such Distribution Date and such
Holder's Certificates of either Class in the aggregate evidence a denomination
of not less than $1,000,000, or, if not, by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register, the amounts to be distributed to such Certificateholder pursuant to
such Holder's Certificates.
Section 14.07 Reserve Account. (a) On the Closing Date, the
Trustee will deposit, on behalf of the Seller, the Reserve Account Initial
Deposit into the Reserve Account from the net proceeds of the sale of the
Certificates.
(b) If the amount on deposit in the Reserve Account on any
Distribution Date (after giving effect to all deposits thereto or withdrawals
therefrom on such Distribution Date) is greater than the Specified Reserve
Account Balance for such Distribution Date, the Servicer shall instruct the
Trustee to distribute the amount of such excess to the Seller, which
distribution may include Eligible Investment Receivables; provided that no such
excess shall be distributed unless the letter from a firm of independent
certified public accountants required to be delivered under the Agreement in
respect of the Collection Period immediately following the Closing Date has been
delivered to the Trustee.
(c) If the Servicer determines pursuant to Section 14.04 that
it is required to make an Advance on any Distribution Date and does not do so
from its own funds, the Servicer shall instruct the Trustee to withdraw funds
from the Reserve Account and deposit them in the Collection Account to cover any
shortfall. Such payment shall be deemed to have been made by the Servicer
pursuant to Section 14.04 for purposes of making distributions pursuant to the
Agreement, but shall not otherwise satisfy the Servicer's obligation to deliver
the amount of the Advances, and the Servicer shall within two Business Days
replace any funds in the Reserve Account so used.
(d) (i) In the event that the Class [A] Distributable Amount
for a Distribution Date exceeds the sum of the amounts distributed to
Holders of the Class [A] Certificates
-31-
pursuant to Section 14.06(b)(ii) on such Distribution Date, the
Servicer shall instruct the Trustee to withdraw from the Reserve
Account on such Distribution Date an amount equal to such excess, to
the extent of funds available therein, and distribute such amount to
the Holders of the Class [A] Certificates.
(ii) In the event that the Class [A] Principal
Distributable Amount on the Final Scheduled Distribution Date exceeds
the amount distributed to Holders of Class [A] Certificates pursuant to
Section 14.06(b)(ii)(B) on such Distribution Date, the Servicer shall
instruct the Trustee to withdraw from the Reserve Account on such
Distribution Date an amount equal to such excess, to the extent of
funds available therein, and distribute such amount to the Holders of
the Class [A] Certificates.
(e) (i) In the event that the Class [B] Distributable Amount
for a Distribution Date exceeds the sum of the amounts distributed to
Holders of the Class [B] Certificates pursuant to Section 14.06(b)(iii)
on such Distribution Date, the Servicer shall instruct the Trustee to
withdraw from the Reserve Account on such Distribution Date an amount
equal to such excess, to the extent of funds available therein after
giving effect to paragraphs (c) and (d) above, and distribute such
amount to the Holders of the Class [B] Certificates.
(ii) In the event that the Certificateholders'
Principal Distributable Amount on the Final Scheduled Distribution Date
exceeds the amount distributed to Holders of the Class [B] Certificates
pursuant to Section (b)(iii)(B), the Servicer shall instruct the
Trustee to withdraw from the Reserve Account on such Distribution Date
an amount equal to such excess, to the extent of funds available
therein after giving effect to paragraphs (d) and (e)(i) above, and
distribute such amount to the Holders of the Class [B] Certificates.
Following the payment in full of the Certificate Balance and of all
other amounts owing or to be distributed under the Agreement to
Certificateholders and the termination of the Trust, any amount
remaining on deposit in the Reserve Account shall be distributed to the
Seller and any Eligible Investment Receivables in the Reserve Account
shall be transferred to the Seller.
Section 14.08 Pre-Funding Account. (a) On the Closing Date,
the Trustee will deposit the amount, if any, specified in the Agreement in the
Pre-Funding Account on behalf of the Seller from the net proceeds of the sale of
the Certificates. On each Subsequent Transfer Date, the Servicer shall instruct
the Trustee to withdraw from the Pre-Funding Account an amount equal to (i) the
Principal Balance of the Subsequent Receivables transferred to the Trust on such
Subsequent Transfer Date less the Reserve Account Initial Deposit for such
Subsequent Transfer Date, and to distribute such amount to or upon the order of
the Seller upon satisfaction of the conditions set forth in the Agreement with
respect to such transfer, and (ii) the Reserve Account Initial Deposit for such
Subsequent Transfer Date and, on behalf of the Seller, to deposit such amount in
the Reserve Account. If Subsequent Receivables are transferred to the Trust on
the Closing Date, the Closing Date shall also be a Subsequent Transfer Date for
the purposes of this Section.
(b) If (x) the Pre-Funded Amount has not been reduced to zero
on the Distribution Date on which the Funding Period ends (or, if the Funding
Period does not end on a
-32-
Distribution Date, on the first Distribution Date following the end of the
Funding Period) or (y) the Pre-Funded Amount has been reduced to $[__________]
or less on any Determination Date, in either case after giving effect to any
reductions in the Pre-Funded Amount on such Distribution Date or Determination
Date pursuant to paragraph (a) above, the Servicer shall instruct the Trustee to
withdraw from the Pre-Funding Account, in the case of (x), on such Distribution
Date or, in the case of (y), on the Distribution Date immediately succeeding
such Determination Date, (i) if the Pre-Funded Amount is equal to or less than
$[__________], the Pre-Funded Amount and deposit such amount in the Distribution
Account for payment as principal of the Class [A]-1 Certificates up to the Class
[A] Certificate Balance and then for payment of principal of the Class [A]-2
Certificates, and (ii) if the Pre-Funded Amount is greater than $[__________],
amounts equal to the Pre-Funded Percentage for each Class of Certificates of the
Pre-Funded Amount and deposit such amounts in the Distribution Account. In
addition, if the Pre-Funded Amount is greater than $[__________], the Seller
will deposit into the Distribution Account an amount equal to the sum of the
Class [A] Prepayment Premium and the Class [B] Prepayment Premium.
Section 14.09 Statements to Certificateholders. On each
Distribution Date, the Servicer shall provide to the Trustee for the Trustee to
forward to each Certificateholder of record as of the most recent Record Date, a
statement substantially in the form of Exhibit D setting forth at least the
following information as to each Class of Certificates to the extent applicable:
(i) the amount of such distribution allocable to
principal allocable to each class of Certificates;
(ii) the amount of such distribution allocable to interest
allocable to each class of Certificates;
(iii) for the final Distribution Date with respect to the
Funding Period, the amount of any remaining
Pre-Funded Amount that has not been used to fund the
purchase of Subsequent Receivables;
(iv) the Pool Balance as of the close of business on the
last day of the related Collection Period, after
giving effect to payments allocated to principal
reported under (i) above;
(v) the Class [A] Certificate Balance and the Class [B]
Certificate Balance as of the close of business on
the last day of the related Collection Period, after
giving effect to payments allocated to principal
reported under (i) above;
(vi) the amount of the Servicing Fee paid to the Servicer
with respect to the related Collection Period;
(vii) the amount of the Class [A] Principal Carryover
Shortfall and Class [A] Interest Carryover Shortfall
and Class [B] Principal Carryover Shortfall and Class
[B] Interest Carryover Shortfall, as applicable, if
any, on such Distribution Date and the change in the
Class [A] Principal Carryover
-33-
Shortfall and Class [A] Interest Carryover Shortfall
and Class [B] Principal Carryover Shortfall and Class
[B] Interest Carryover Shortfall, as applicable, from
the preceding Distribution Date;
(viii) the amount of Realized Losses, if any, with respect
to the related Collection Period;
(ix) the amount otherwise distributable to the Class [B]
Certificateholders that is distributed to Class [A]
Certificateholders on such Distribution Date;
(x) the balance of the Reserve Account on such
Distribution Date, after giving effect to deposits
and withdrawals made on such Distribution Date;
(xi) for Distribution Dates during the Funding Period, the
remaining Pre-Funded Amount.
Each amount set forth pursuant to subclauses (i), (ii), (vi)
or (vii) above shall be expressed as a dollar amount per $1,000 of original
principal balance of a Class [A] or Class [B] Certificate, as applicable.
Section 14.10 Accounting and Tax Returns. The Trustee shall
(a) maintain (or cause to be maintained) the books of the Trust on a calendar
year basis and the accrual method of accounting and (b) deliver to each Holder
of a Certificate, as may be required by the Code and applicable Treasury
Regulations, such information as may be required (including Schedule K-1) to
enable each Holder to prepare its federal and state income tax returns.
Section 14.11 Net Deposits. As an administrative convenience,
unless the Servicer is required to remit collections daily, the Servicer will be
permitted to make the deposit of collections on the Receivables, aggregate
Advances and Purchase Amounts for or with respect to each Collection Period net
of distributions to be made to the Servicer with respect to such Collection
Period. The Servicer, however, will account to the Trustee and to the
Certificateholders as if all deposits, distributions and transfers were made
individually.
Section 14.12 Transfer of the Class [B] Certificates. In the
event any Holder of a Class [B] Certificate shall wish to transfer such
Certificate, the Seller shall provide to such Holder and any prospective
transferee designated by such Holder information regarding the Class [B]
Certificates and the Receivables and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4)
for transfer of any such Class [B] Certificate without registration thereof
under the Securities Act of 1933, as amended, pursuant to the exemption from
registration provided by Rule 144A.]
ARTICLE XV
The Certificates
Section 15.01 The Certificates. Unless otherwise specified in
the Agreement, the Certificates shall be issued in fully registered form in
minimum denominations of $1,000.
-34-
The Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Trustee. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefit of the Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of authentication and delivery of such
Certificates.
A transferee of a Certificate shall become a Certificateholder
and shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a Certificate
duly registered in such transferee's name pursuant to Section 15.03.
Section 15.02 Authentication of Certificates. The Trustee
shall cause the Certificates to be executed on behalf of the Trust,
authenticated and delivered to or upon the written order of the Seller, signed
by its chairman of the board, its president, any vice president, secretary, or
assistant treasurer, without further corporate action by the Seller, in
authorized denominations, pursuant to the Agreement. No Certificate shall
entitle its Holder to any benefit under the Agreement or shall be valid for any
purpose unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A or Exhibit B to
the Agreement, as appropriate, executed by the Trustee by manual signature. Such
authentication shall constitute conclusive evidence that such Certificate shall
have been duly authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication.
Section 15.03 Registration of Transfer and Exchange of
Certificates. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 15.08, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Unless otherwise specified in the
Agreement, the Trustee shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office, the Trustee shall execute, authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates in authorized denominations of a like aggregate amount dated
the date of authentication by the Trustee. At the option of a Holder,
Certificates may be exchanged for other Certificates of authorized denominations
of a like aggregate amount upon surrender at the Corporate Trust Office of the
Certificates to be exchanged.
Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Trustee and the Certificate Registrar duly executed by
the Holder or such Holder's attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer and exchange shall be
cancelled and subsequently disposed of by the Trustee.
-35-
No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
[Section 15.04 Limitations on Transfer of the Class [B]
Certificates. (a) Unless otherwise set forth in the Agreement, the Class [B]
Certificates shall not have been and will not be registered under the Securities
Act and will not be listed on any exchange. No transfer of a Class [B]
Certificate shall be made unless such transfer is made pursuant to an effective
registration statement under the Securities Act and any applicable state
securities laws or is exempt from the registration requirements under said Act
and such state securities laws. In the event that a transfer is to be made in
reliance upon an exemption from the Securities Act and state securities laws, in
order to assure compliance with the Securities Act and such laws, the Holder
desiring to effect such transfer and such Holder's prospective transferee shall
each certify to the Trustee in writing the facts surrounding the transfer in
substantially the forms set forth in Exhibit F (the "Transferor Certificate")
and either Exhibit G (the "Investment Letter") or Exhibit H (the "Rule 144A
Letter"). Except in the case of a transfer as to which the proposed transferee
has provided a Rule 144A Letter, there shall also be delivered to the Trustee an
opinion of counsel that such transfer may be made pursuant to an exemption from
the Securities Act and state securities laws, which opinion of counsel shall not
be an expense of the Trust or Trustee; provided that such opinion of counsel in
respect of the applicable state securities laws may be a memorandum of law
rather than an opinion if such counsel is not licensed in the applicable
jurisdiction. The Seller shall provide to any Holder of a Class [B] Certificate
and any prospective transferee designated by any such Holder, information
regarding the Class [B] Certificates and the Receivables and such other
information as shall be necessary to satisfy the condition to eligibility set
forth in Rule 144A(d)(4) for transfer of any such Class [B] Certificates without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. Each Holder of a Class [B] Certificate desiring
to effect such a transfer shall, and does hereby agree to, indemnify the Trust,
the Trustee and the Seller against any liability that may result if the transfer
is not so exempt or is not made in accordance with federal and state securities
laws.
(b) No transfer of a Class [B] Certificate shall be made
unless the Trustee shall have received a representation from the transferee of
such Class [B] Certificate, acceptable to and in form and substance satisfactory
to the Trustee, to the effect that such transferee is not an employee benefit
plan, trust or account (each a "Benefit Plan") subject to the fiduciary
responsibility provisions of ERISA or Section 4975 of the Code or a Person
acting on behalf of any such Benefit Plan or using assets of a Benefit Plan to
acquire Class [B] Certificates. For purposes of the preceding sentence, such
representation shall be deemed to have been made to the Trustee by the
transferee's (including an initial acquiror's) acceptance of a Class [B]
Certificate. Notwithstanding anything else to the contrary herein, any proposed
transfer of a Class [B] Certificate to or on behalf of a Benefit Plan subject to
ERISA or to the Code without the delivery to the Trustee of an opinion of
counsel satisfactory to the Trustee as described above shall be void and of no
effect. The Trustee shall be under no liability to any Person for any
registration of transfer of any Class [B] Certificate that is in fact not
permitted by this Section 15.04 or for making any payments due on such Class [B]
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of the
-36-
Agreement so long as the transfer was registered by the Trustee in accordance
with the foregoing requirements. The Trustee shall be entitled, but not
obligated, to recover from any Holder of any Class [B] Certificate that was in
fact a Benefit Plan subject to Section 406 of ERISA or to Section 4975 of the
Code or a Person acting on behalf of any such Benefit Plan at the time it became
a Holder or subsequently became such a Benefit Plan or Person acting on behalf
of such a Benefit Plan, all payments made on such Class [B] Certificate at and
after either such time. Any such payments so recovered by the Trustee shall be
paid and delivered by the Trustee to the last preceding Holder of such
Certificate that is not, and was not at the time it held such Certificate, such
a Benefit Plan or Person acting on behalf of a Benefit Plan.
(c) The Trustee shall cause each Class [B] Certificate to
contain a legend stating that transfer of the Class [B] Certificates is subject
to certain restrictions and referring prospective purchasers of the Class [B]
Certificates to this Section 15.04 with respect to such restrictions.
(d) Unless otherwise set forth in the Agreement, no transfer
of a Class [B] Certificate or any interest therein shall be made unless prior to
such transfer the Holder of such Class [B] Certificate delivers to the Seller
and the Trustee either a ruling of the Internal Revenue Service or an Opinion of
Counsel, to the effect that the proposed transfer will not result in the
arrangement contemplated by the Agreement being treated as an association
taxable as a corporation under either the Code or [the tax laws of the State of
New York].]
Section 15.05 Mutilated, Destroyed, Lost, or Stolen
Certificates. If (a) any mutilated Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Certificate and (b)
there shall be delivered to the Certificate Registrar and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Certificate has been acquired by a bona
fide purchaser, the Trustee on behalf of the Trust shall execute, and the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and denomination. In connection with the issuance of any new Certificate
under this Section, the Trustee and the Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of ownership in
the Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 15.06 Persons Deemed Owners. Prior to due presentation
of a Certificate for registration of transfer, the Trustee or the Certificate
Registrar may treat the Person in whose name any Certificate shall be registered
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 14.06 and for all other purposes whatsoever, and neither the
Trustee nor the Certificate Registrar shall be bound by any notice to the
contrary.
Section 15.07 Access to List of Certificateholders' Names and
Addresses. The Trustee shall furnish or cause to be furnished to the Servicer,
within 15 days after receipt by the Trustee of a request therefor from the
Servicer in writing, a list, in such form as the Servicer may
-37-
reasonably require, of the names and addresses of the Certificateholders as of
the most recent Record Date. If three or more Certificateholders, or one or more
Holders of [Class [A]] Certificates evidencing not less than 25% of the
Certificate Balance apply in writing to the Trustee, and such application states
that the applicants desire to communicate with other Certificateholders with
respect to their rights under the Agreement or under the Certificates and such
application shall be accompanied by a copy of the communication that such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt for such application, afford such applicants access
during normal business hours to the current list of Certificateholders. Each
Holder, by receiving and holding a Certificate, shall be deemed to have agreed
to hold neither the Servicer nor the Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
Section 15.08 Maintenance of Office or Agency. The Trustee
shall maintain in the Borough of Manhattan, The City of New York, an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustee in respect of the Certificates and the Agreement may be served. The
Trustee initially designates the Corporate Trust Office as specified in the
Agreement as its office for such purposes. The Trustee shall give prompt written
notice to the Servicer and to Certificateholders of any change in the location
of the Certificate Register or any such office or agency.
Section 15.09 Book-Entry Certificates. The Class [A]
Certificates and, if so specified in the Agreement, the Class [B] Certificates
may be issued in the form of one or more typewritten Certificates representing
Book-Entry Certificates, to be delivered by, or on behalf of, the Seller to the
initial Clearing Agency, which, unless otherwise specified in the Agreement,
shall be The Depository Trust Company. In such case, the Certificates delivered
to the Depository Trust Company shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Certificate Owner will receive a definitive certificate representing such
Certificate Owner's interest in the Certificates, except as provided in Section
15.11. Unless and until definitive, fully registered Certificates (the
"Definitive Certificates") have been issued to such Certificate Owners pursuant
to Section 15.11:
(i) the provisions of this Section shall be in full force
and effect;
(ii) the Seller, the Servicer, the Certificate Registrar
and the Trustee may deal with the Clearing Agency for
all purposes (including the making of distributions
on such Certificates) as the sole Holder of such
Certificates and shall have no obligation to the
related Certificate Owners;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Agreement,
the provisions of this Section shall control;
(iv) the rights of such Certificate Owners shall be
exercised only through the Clearing Agency and shall
be limited to those established by law and agreements
between such Certificate Owners and the Clearing
Agency and/or the Clearing Agency Participants.
Pursuant to the Depository Agreement, unless and
until Definitive Certificates are issued pursuant to
-38-
Section 15.11, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency
Participants and receive and transmit distributions
of principal and interest on such Certificates to
such Clearing Agency Participants; and
(v) whenever the Agreement requires or permits actions to
be taken based upon instructions or directions of
Holders of Certificates evidencing a specified
percentage of the Certificate Balance, the Clearing
Agency shall be deemed to represent such percentage
only to the extent that it has received instructions
to such effect from Certificate Owners and/or
Clearing Agency Participants owning or representing,
respectively, such required percentage of the
beneficial interest in such Certificates and has
delivered such instructions to the Trustee.
Section 15.10 Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 15.11, the Trustee and the Servicer shall give all such
notices and communications specified herein to be given to Certificate Owners to
the Clearing Agency.
Section 15.11 Definitive Certificates. If (i) the Servicer advises the
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities under the Depository Agreement and the
Trustee or the Seller is unable to locate a qualified successor, (ii) the Seller
at its option advises the Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after the occurrence of
an Event of Default, Certificate Owners representing beneficial interests
aggregating not less than a majority of the aggregate outstanding principal
amount of the Book-Entry Certificates advise the Trustee and the Clearing Agency
in writing that the continuation of a book-entry system through the Clearing
Agency is no longer in the best interests of the Certificate Owners, then the
Clearing Agency shall notify all Certificate Owners and the Trustee of the
occurrence of such event and of the availability of Definitive Certificates to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
typewritten Certificates representing the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions, the Trustee shall
execute and authenticate the Definitive Certificates in accordance with the
instructions of the Clearing Agency. None of the Seller, the Certificate
Registrar or the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates, the Trustee
shall recognize the Holders of the Definitive Certificates as Certificateholders
hereunder. The Definitive Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Trustee, as evidenced by its execution thereof.
ARTICLE XVI
The Seller
Section 16.01 Representations of Seller. The Seller makes the
following representations on which the Trustee shall be deemed to have relied in
accepting the Receivables
-39-
in trust and executing and authenticating the Certificates. The representations
speak as of the execution and delivery of the Agreement and as of the Closing
Date, in the case of Initial Receivables, if any, and as of the applicable
Subsequent Transfer Date, in the case of Subsequent Receivables, if any, and
shall survive the sale of the Receivables to the Trustee.
(i) Organization and Good Standing. The Seller is duly
organized and validly existing as a limited liability company in good standing
under the laws of the State of Florida, with power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted, and had at all relevant times, and
has, the power, authority and legal right to acquire and own the Standard
Receivables.
(ii) Due Qualification. The Seller is duly qualified to do
business as a foreign limited liability company in good standing, and has
obtained all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall require such
qualifications.
(iii) Power and Authority. The Seller has the power and
authority to execute and deliver the Agreement and to carry out its terms; the
Seller has full power and authority to sell and assign the property to be sold
and assigned to and deposited with the Trustee as part of the Trust, and the
Seller shall have duly authorized such sale and assignment to the Trustee by all
necessary action; and the execution, delivery and performance of the Agreement
and of each Subsequent Transfer Assignment or Eligible Investment Transfer
Assignment, as applicable, shall have been duly authorized by the Seller by all
necessary action.
(iv) Binding Obligation. The Agreement, each Subsequent
Transfer Assignment and Eligible Investment Transfer Assignment, when executed
and delivered by the Seller, shall constitute a legal, valid and binding
obligation of the Seller enforceable in accordance with its terms.
(v) No Violation. The consummation of the transactions
contemplated by the Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
articles of organization or operating agreement of the Seller, or any indenture,
agreement or other instrument to which the Seller is a party or by which it is
bound; or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Agreement); or violate any law or, to the
best of the Seller's knowledge, any order, rule or regulation applicable to the
Seller of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the Seller
or its properties.
(vi) No Proceedings. To the Seller's best knowledge, there are
no proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Seller or its properties: (i) asserting the
invalidity of the Agreement or the Certificates; (ii) seeking to prevent the
issuance of the Certificates or the consummation of any of the transactions
contemplated by the Agreement; (iii) seeking any determination or ruling that
might materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, the
-40-
Agreement or the Certificates, or (iv) that might adversely affect the federal
income tax attributes of the Certificates.
Section 16.02 Existence. During the term of the Agreement, the
Seller will keep in full force and effect its existence, rights and franchises
as a limited liability company under the laws of the jurisdiction of its
organization and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Agreement and each other
instrument or agreement necessary or appropriate to the proper administration of
the Agreement and the transactions contemplated hereby.
Section 16.03 Liabilities of Seller; Indemnities. The Seller
shall be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Seller under the Agreement.
(i) The Seller shall indemnify, defend and hold harmless the
Trustee and the Trust from and against any taxes that may at any time be
asserted against the Trustee or the Trust with respect to the transactions
contemplated in the Agreement, including any sales, gross receipts, general
corporation, tangible personal property, privilege, or license taxes (but, in
the case of the Trust, not including any taxes asserted with respect to, and as
the date of, the sale of the Receivables to the Trust or the issuance and
original sale of the Certificates, or asserted with respect to ownership of the
Receivables or Eligible Investment Receivables, or federal or other income taxes
arising out of the distributions on the Certificates) and costs and expenses in
defending against the same.
(ii) The Seller shall indemnify, defend and hold harmless the
Trustee and the Certificateholders from and against any loss, liability or
expense incurred by reason of (a) the Seller's willful misfeasance, bad faith or
negligence in the performance of its duties under the Agreement, or by reason of
reckless disregard of its obligations and duties under the Agreement, and (b)
the Seller's or Trust's violation of federal or state securities laws in
connection with the offering and sale of the Certificates.
(iii) The Seller shall indemnify, defend and hold harmless the
Trustee and its officers, directors, employees and agents from and against all
costs, expenses, losses, claims, damages and liabilities arising out of or
incurred in connection with the acceptance or performance of the trusts and
duties herein and in the Agreement contained, except to the extent that such
cost, expense, loss, claim, damage or liabilities shall be due to the willful
misfeasance, bad faith or negligence (except for errors in judgment) of the
Trustee.
Indemnification under this Section 16.03 shall survive the
resignation or removal of the Trustee and the termination of the Agreement and
shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Seller shall have made any indemnity payments to the Trustee
pursuant to this Section and the Trustee thereafter shall collect any of such
amounts from others, the Trustee shall promptly repay such amounts to the
Seller, without interest.
-41-
Section 16.04 Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Any Person (a) into which the Seller may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Seller shall be a party or (c) which may succeed to the properties and assets of
the Seller substantially as a whole, which Person in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the Seller
under the Agreement, shall be the successor to the Seller hereunder without the
execution or filing of any document or any further act by any of the parties to
the Agreement; provided, however, that (i) immediately after giving effect to
such transaction, no representation or warranty made pursuant to Section 12.01
shall have been breached and no Event of Default, and no event which, after
notice or lapse of time, or both, would become an Event of Default shall have
happened and be continuing, (ii) the Seller shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply with
this Section and that all conditions precedent, if any, provided for in the
Agreement relating to such transaction have been complied with, (iii) the Rating
Agency Requirement shall have been satisfied with respect to such transaction
and (iv) the Seller shall have delivered to the Trustee an Opinion of Counsel
stating that, in the opinion of such Counsel, either (A) all financing
statements and continuation statements and amendments thereto have been executed
and filed that are necessary fully to preserve and protect the interest of the
Trustee in the Receivables and reciting the details of such filings or (B) no
such action shall be necessary to preserve and protect such interest.
Notwithstanding anything herein to the contrary, the execution of the foregoing
agreement of assumption and compliance with clauses (i), (ii), (iii) and (iv)
above shall be conditions to the consummation of the transactions referred to in
clauses (a), (b) or (c) above.
Section 16.05 Limitation on Liability of Seller and Others.
The Seller and any director, officer, employee or agent of the Seller may rely
in good faith on the advice of counsel or on any document of any kind, prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Seller shall not be under any obligation to appear in,
prosecute or defend any legal action that shall not be incidental to its
obligations under the Agreement and that in its opinion may involve it in any
expense or liability.
Section 16.06 Seller May Own Certificates. The Seller and any
Affiliate thereof may in its individual or any other capacity become the owner
or pledgee of Certificates with the same rights as it would have if it were not
the Seller or an Affiliate thereof, except as otherwise provided herein.
ARTICLE XVII
The Servicer
Section 17.01 Representations of Servicer. The Servicer makes
the following representations on which the Trustee shall be deemed to have
relied in accepting the Receivables in trust and executing and authenticating
the Certificates. The representations speak as of the execution and delivery of
the Agreement and as of the Closing Date, in the case of the Initial
Receivables, if any, and as of the applicable Subsequent Transfer Date, in the
case of the Subsequent Receivables or Eligible Investment Receivables, if any,
and shall survive the sale of the Receivables to the Trustee.
-42-
(a) Organization and Good Standing. The Servicer is duly
organized and validly existing as a limited liability company in good standing
under the laws of the state of its organization, with power and authority to own
its properties and to conduct its business as such properties are currently
owned and such business is presently conducted, and had at all relevant times,
and has, the power, authority and legal right to acquire, own, sell and service
the Standard Receivables and to hold the Receivable Files as custodian.
(b) Due Qualification. The Servicer is duly qualified to do
business as a foreign limited liability company in good standing, and has
obtained all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business (including the
servicing of the Standard Receivables as required by the Agreement) shall
require such qualifications.
(c) Power and Authority. The Servicer has the power and
authority to execute and deliver the Agreement and to carry out its terms; and
the execution, delivery and performance of the Agreement have been duly
authorized by the Servicer by all necessary action.
(d) Binding Obligation. The Agreement constitutes a legal,
valid and binding obligation of the Servicer enforceable in accordance with its
terms.
(e) No Violation. The consummation of the transactions
contemplated by the Agreement and the fulfillment of the terms hereof shall not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
articles of organization or operating agreement of the Servicer, or any
indenture, agreement or other instrument to which the Servicer is a party or by
which it is bound; or result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than the Agreement); or violate any law or, to the best
of the Servicer's knowledge, any order, rule or regulation applicable to the
Servicer of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the
Servicer or its properties.
(f) No Proceedings. To the Servicer's best knowledge, there
are no proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Servicer or its properties: (i) asserting the
invalidity of the Agreement or the Certificates, (ii) seeking to prevent the
issuance of the Certificates or the consummation of any of the transactions
contemplated by the Agreement, (iii) seeking any determination or ruling that
might materially and adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of, the Agreement or the
Certificates, or (iv) relating to the Servicer and which might adversely affect
the federal income tax attributes of the Certificates.
(g) No Insolvent Obligors. As of the related Cutoff Date, no
Obligor on a Standard Receivable shall be shown on the Receivable Files as the
subject of a bankruptcy proceeding.
-43-
Section 17.02 Indemnities of Servicer. The Servicer shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under the Agreement.
(a) The Servicer shall defend, indemnify and hold harmless the
Trustee, the Trust, the Certificateholders and the Seller from and against any
and all costs, expenses, losses, damages, claims, and liabilities, arising out
of or resulting from the use, ownership or operation by the Servicer or any
Affiliate thereof of a Financed Vehicle.
(b) The Servicer shall indemnify, defend and hold harmless the
Trustee, the Seller, the Trust and the Certificateholders from and against any
and all costs, expenses, losses, claims, damages, and liabilities to the extent
that such cost, expense, loss, claim, damage, or liability arose out of, or was
imposed upon any such Person through, the negligence, willful misfeasance or bad
faith of the Servicer in the performance of its duties under the Agreement or by
reason of reckless disregard of its obligations and duties under the Agreement.
For purposes of this Section, in the event of the termination
of the rights and obligations of World Omni (or any successor thereto pursuant
to Section 17.03) as Servicer pursuant to Section 18.01, or a resignation by
such Servicer pursuant to the Agreement, such Servicer shall be deemed to be the
Servicer pending appointment of a successor Servicer (other than the Trustee)
pursuant to Section 18.02.
Indemnification under this Section shall survive the
resignation or removal of the Trustee or the termination of the Agreement and
shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer shall have made any indemnity payments pursuant to
this Section and the recipient thereafter collects any of such amounts from
others, such Person shall promptly repay such amounts to the Servicer, without
interest.
Section 17.03 Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Any Person (a) into which the Servicer may be merged
or consolidated, (b) which may result from any merger or consolidation to which
the Servicer shall be a party, (c) which may succeed to the properties and
assets of the Servicer substantially as a whole or (d) with respect to the
Servicer's obligations hereunder, which is a corporation 50% or more of the
voting stock of which is owned, directly or indirectly, by World Omni Financial
Corp., which Person executed an agreement of assumption to perform every
obligation of the Servicer hereunder shall be the successor to the Servicer
under the Agreement without further act on the part of any of the parties to the
Agreement; provided, however, that (i) immediately after giving effect to such
transaction, no Event of Default and no event which, after notice or lapse of
time, or both, would become an Event of Default shall have happened and be
continuing, (ii) the Servicer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
and that all conditions precedent provided for in the Agreement relating to such
transaction have been complied with, (iii) the Rating Agency Condition shall
have been satisfied with respect to such transaction and (iv) the Servicer shall
have delivered to the Trustee an Opinion of Counsel stating that, in the opinion
of such counsel, either (A) all financing statements and continuation statements
and amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Trustee in the Receivables and reciting
the details of such
-44-
filings or (B) no such action shall be necessary to preserve and protect such
interest. Notwithstanding anything herein to the contrary, the execution of the
foregoing agreement of assumption and compliance with clauses (i), (ii), (iii)
and (iv) above shall be conditions to the consummation of the transactions
referred to in clauses (a), (b) or (c) above.
Section 17.04 Limitation on Liability of Servicer and Others.
Neither the Servicer nor any of the directors, officers, employees or agents of
the Servicer shall be under any liability to the Trust or the
Certificateholders, except as provided under the Agreement, for any action taken
or for refraining from the taking of any action pursuant to the Agreement or for
errors in judgment; provided, however, that this provision shall not protect the
Servicer or any such Person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties under the Agreement. The Servicer and any director, officer, employee or
agent of the Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising under the Agreement.
Except as provided in the Agreement, the Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action that
shall not be incidental to its duties to service the Receivables in accordance
with the Agreement and that in its opinion may involve it in any expense or
liability; provided, however, that the Servicer may undertake any reasonable
action that it may deem necessary or desirable in respect of the Agreement and
the rights and duties of the parties to the Agreement and the interests of the
Certificateholders under the Agreement.
ARTICLE XVIII
Default
Section 18.01 Events of Default. If any one of the following
events ("Events of Default") shall occur and be continuing:
(a) Any failure by the Servicer to deliver to the Trustee for
deposit to any Trust Account any proceeds or payment required to be so delivered
under the terms of the Certificates and the Agreement that shall continue
unremedied for a period of three Business Days after written notice of such
failure is received by the Servicer from the Trustee or after discovery of such
failure by an officer of the Servicer; or
(b) Failure by the Servicer or the Seller, as the case may be,
duly to observe or to perform in any material respect any other covenants or
agreements of the Servicer or the Seller (as the case may be) set forth in the
Certificates or in the Agreement, which failure shall (a) materially and
adversely affect the rights of Certificateholders and (b) continue unremedied
for a period of 60 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given (1) to the Servicer or
the Seller (as the case may be) by the Trustee or (2) to the Servicer or the
Seller (as the case may be) and to the Trustee by the Holders of [Class [A]]
Certificates evidencing not less than 25% of the [Class [A]] Certificate
Balance; or
-45-
(c) The occurrence of an Insolvency Event with respect to the
Servicer or the Seller; then, and in each and every case, so long as the Event
of Default shall not have been remedied, either the Trustee or the Holders of
[Class [A]] Certificates evidencing not less than 25% of the [Class [A]]
Certificate Balance, by notice then given in writing to the Servicer (and to the
Trustee if given by Certificateholders) may terminate all of the rights and
obligations (other than the obligations set forth in Section 17.02) of the
Servicer under the Agreement. On or after the receipt by the Servicer of such
written notice, all authority and power of the Servicer under the Agreement,
whether with respect to the Certificates or the Receivables or otherwise, shall,
without further action, pass to and be vested in the Trustee or such successor
Servicer as may be appointed under Section 18.02; and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the predecessor Servicer, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Receivables
and related documents, or otherwise. The predecessor Servicer shall cooperate
with the successor Servicer and the Trustee in effecting the termination of the
responsibilities and rights of the predecessor Servicer under the Agreement,
including the transfer to the successor Servicer for administration by it of all
cash amounts that shall at the time be held by the predecessor Servicer for
deposit, or shall thereafter be received with respect to any Receivable. All
reasonable costs and expenses (including attorneys' fees) incurred in connection
with transferring the Receivable Files to the successor Servicer and amending
the Agreement to reflect such succession as Servicer pursuant to this Section
shall be paid by the predecessor Servicer upon presentation of reasonable
documentation of such costs and expenses. Upon receipt of notice of the
occurrence of an Event of Default, the Trustee shall give notice thereof to the
Rating Agencies.
Section 18.02 Appointment of Successor. (a) Upon the
Servicer's receipt of notice of termination pursuant to Section 18.01 or the
Servicer's resignation in accordance with the terms of the Agreement, the
predecessor Servicer shall continue to perform its functions as Servicer under
the Agreement, in the case of termination, only until the date specified in such
termination notice or, if no such date is specified in a notice of termination,
until receipt of such notice and, in the case of resignation, until the later of
(x) the date 45 days from the delivery to the Trustee of written notice of such
resignation (or written confirmation of such notice) in accordance with the
terms of the Agreement and (y) the date upon which the predecessor Servicer
shall become unable to act as Servicer, as specified in the notice of
resignation and accompanying Opinion of Counsel. In the event of the Servicer's
termination hereunder, the Trustee shall appoint a successor Servicer, and the
successor Servicer shall accept its appointment by a written assumption in form
acceptable to the Trustee. In the event that a successor Servicer has not been
appointed at the time when the predecessor Servicer has ceased to act as
Servicer in accordance with this Section, the Trustee without further action
shall automatically be appointed the successor Servicer and shall be entitled to
the Servicing Fee. Notwithstanding the above, the Trustee shall, if it shall be
legally unable so to act, appoint, or petition a court of competent jurisdiction
to appoint, any established institution having a net worth of not less than
$100,000,000 and whose regular business shall include the servicing of
automotive receivables as the successor to the Servicer under the Agreement.
(b) Upon appointment, the successor Servicer (including the
Trustee acting as successor Servicer) shall be the successor in all respects to
the predecessor Servicer and shall be
-46-
subject to all the responsibilities, duties and liabilities arising thereafter
relating thereto placed on the predecessor Servicer and shall be entitled to the
Servicing Fee and all of the rights granted to the predecessor Servicer by the
terms and provisions of the Agreement.
(c) The Servicer may not resign unless it is prohibited from
serving as such by law.
Section 18.03 Repayment of Advances. If the Servicer shall
change, the predecessor Servicer shall be entitled to receive reimbursement for
Outstanding Advances pursuant to Sections 14.03 and 14.04 with respect to all
Advances made by the predecessor Servicer.
Section 18.04 Notification to Certificateholders. Upon any
termination of, or appointment of a successor to, the Servicer pursuant to this
Article XVIII, the Trustee shall give prompt written notice thereof to
Certificateholders and to the Rating Agencies.
Section 18.05 Waiver of Past Defaults. The Holders of [Class
[A]] Certificates evidencing not less than a majority of the [Class [A]]
Certificate Balance may, on behalf of all Holders of Certificates, waive any
default by the Servicer in the performance of its obligations hereunder and its
consequences, except a default in making any required deposits to or payments
from the Trust Accounts in accordance with the Agreement. Upon any such waiver
of a past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of the
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
ARTICLE XIX
The Trustee
Section 19.01 Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by the Agreement and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs; provided, however, that if the Trustee
shall assume the duties of the Servicer pursuant to Section 18.02, the Trustee
in performing such duties shall use the degree of skill and attention
customarily exercised by a servicer with respect to automobile receivables that
it services for itself or others.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in the
Agreement and no implied covenants or obligations
shall be read into the Agreement against the Trustee;
and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of the Agreement; provided, however,
-47-
that the Trustee shall examine the certificates and
opinions to determine whether or not they conform to
the [__________].
(c) The Trustee shall take and maintain custody of the
Schedule of Receivables included as an exhibit to the Agreement and shall retain
all Servicer's Certificates identifying Receivables that become Purchased
Receivables and Liquidated Receivables.
(d) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken in good faith in accordance with the
Agreement or at the direction of the Holders of [Class [A]] Certificates
evidencing not less than 25% of the [Class [A]] Certificate Balance relating to
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee
under the Agreement;
(e) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of clause
(d) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Trustee Officer
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in
accordance with a direction received by it pursuant
to the Agreement.
(f) No provision of the Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
Section 19.02 Certain Matters Affecting Trustee. Except as
otherwise provided in Section 19.01:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in any such document.
(b) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters or relating to the Agreement or
the Certificates shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it under the
Agreement in good faith and in accordance with such advice or opinion of such
counsel.
(c) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by the Agreement, or to institute, conduct
or defend any litigation under the
-48-
Agreement at the request, order or direction of any of the Certificateholders
pursuant to the provisions of the Agreement, unless such Certificateholders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or thereby.
(d) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith which it believes to be authorized or
within its rights or powers conferred upon it by the Agreement; provided that
such conduct does not constitute willful misconduct, bad faith or negligence on
the part of the Trustee.
(e) The Trustee may execute any of the trusts or powers or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian, and the Trustee shall not be responsible for any
misconduct or negligence of any such agent, attorney or custodian appointed with
due care by it hereunder.
Section 19.03 Trustee Not Liable for Certificates or
Receivables. The recitals contained herein and in the Certificates (other than
the certificate of authentication on the Certificates) shall be taken as the
statements of the Seller or the Servicer, as the case may be, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee shall make no
representations as to the validity or sufficiency of the Agreement or of the
Certificates (other than the certificate of authentication on the Certificates),
or of any Receivable or Eligible Investment Receivable or related document. The
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Receivable or
Eligible Investment Receivable, or the perfection and priority of any security
interest created by any Receivable or Eligible Investment Receivable in any
Financed Vehicle or the maintenance of any such perfection and priority, or for
or with respect to the efficacy of the Trust or its ability to generate the
payments to be distributed to Certificateholders under the Agreement, including,
without limitation: the existence, condition and ownership of any Financed
Vehicle; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable or Eligible Investment Receivable or
any computer or other record thereof; the validity of the assignment of any
Receivable or Eligible Investment Receivable to the Trust or of any intervening
assignment; the completeness of any Receivable or Eligible Investment
Receivable; the performance or enforcement of any Receivable or Eligible
Investment Receivable; the compliance by the Seller or the Servicer with any
warranty or representation made under the Agreement or in any related document
and the accuracy of any such warranty or representation or any action of the
Servicer taken in the name of the Trustee.
Section 19.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
and may deal with the Seller and the Servicer in banking transactions with the
same rights as it would have if it were not Trustee.
Section 19.05 Trustee's Fees and Expenses. The Servicer shall
pay to the Trustee, and the Trustee shall be entitled to receive, reasonable
compensation as shall have been separately agreed upon before the date of the
Agreement between the Seller and the Trustee (which shall not be limited by any
provision of law regarding the compensation of a trustee of an express trust)
for all services rendered by it in the execution of the trusts created by the
-49-
Agreement and in the exercise and performance of any of the Trustee's powers and
duties under the Agreement. The Trustee shall be entitled to be reimbursed by
the Seller for its reasonable expenses under the Agreement, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Trustee may employ in connection
with the exercise and performance of its rights and duties under the Agreement.
Section 19.06 Eligibility Requirements for Trustee. The
Trustee shall at all times be a corporation having an office in the same state
as the location of the Corporate Trust Office; organized and doing business
under the laws of such state or the United States of America; authorized under
such laws to exercise corporate trust powers; having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authorities; and having (or having a parent that has) a rating
of at least Baa3 by ▇▇▇▇▇'▇. If such corporation shall publish reports of
condition at least annually pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 19.07.
Section 19.07 Resignation or Removal of Trustee. The Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Servicer. Upon receiving such notice of
resignation, the Servicer shall promptly appoint a successor Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor Trustee. If no successor Trustee
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 19.06 and shall fail to resign after
written request therefor by the Servicer, or if at any time the Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Servicer
may remove the Trustee. If the Servicer shall remove the Trustee under the
authority of the immediately preceding sentence, the Servicer shall promptly
appoint a successor Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the outgoing Trustee so removed and one
copy to the successor Trustee, and shall pay all fees owed to the outgoing
Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor Trustee
pursuant to Section 19.08 and payment of all fees and expenses owed to the
outgoing Trustee. The Servicer shall provide notice of such resignation or
removal of the Trustee to each of the Rating Agencies.
Section 19.08 Successor Trustee. Any successor Trustee
appointed pursuant to Section 19.07 shall execute, acknowledge and deliver to
the Servicer and to its predecessor
-50-
Trustee an instrument accepting such appointment under the Agreement, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under the Agreement, with like effect as if
originally named as Trustee. The predecessor Trustee shall upon payment of its
fees and expenses deliver to the successor Trustee all documents and statements
and monies held by it under the Agreement; and the Servicer and the predecessor
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Trustee all such rights, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Trustee shall
be eligible pursuant to Section 19.06.
Upon acceptance of appointment by a successor Trustee pursuant
to this Section, the Servicer shall mail notice thereof to all
Certificateholders and to the Rating Agencies. If the Servicer shall fail to
mail such notice within 10 days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be mailed at the
expense of the Servicer.
Section 19.09 Merger or Consolidation of Trustee. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be eligible pursuant to Section 19.06, without the execution
or filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. The Trustee shall mail
notice of any such merger or consolidation to the Rating Agencies.
Section 19.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of the Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or any Financed Vehicle may at the time be located, the Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
to act as co-trustee, jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in such Person, in such
capacity and for the benefit of the Certificateholder, such title to the Trust
or any part thereof and, subject to the other provisions of this Section, such
powers, duties, obligations, rights, and trusts as the Servicer and the Trustee
may consider necessary or desirable. If the Servicer shall not have joined in
such appointment within 15 days after the receipt by it of a request so to do,
the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee under the Agreement shall be required to meet the terms of
eligibility as a successor Trustee pursuant to Section 19.06 and no notice of
the appointment of any co-trustee or separate
-51-
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) All rights, powers, duties and obligations conferred
or imposed upon any such separate trustee or
co-trustee shall be conferred upon and exercised or
performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such
act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are
to be performed, the Trustee shall be incompetent or
unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations
(including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of
the Trustee;
(ii) No trustee under the Agreement shall be personally
liable by reason of any act or omission of any other
trustee under the Agreement; and
(iii) The Servicer and the Trustee acting jointly may at
any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to the Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of the
Agreement, specifically including every provision of the Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Each such instrument shall be filed with the Trustee and a copy thereof
given to the Servicer.
Any separate trustee or co-trustee may at any time appoint the
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of the
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor co-trustee or separate trustee.
Section 19.11 Representations and Warranties of Trustee. The
Trustee shall make the following representations and warranties on which the
Seller and Certificateholders shall be deemed to rely:
(i) The Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws
of its place of incorporation.
-52-
(ii) The Trustee has full corporate power, authority and
legal right to execute and deliver, and to perform
its obligations under, the Agreement, and shall have
taken all necessary action to authorize the execution
and delivery of, and the performance of its
obligations under, the Agreement.
(iii) The Agreement shall have been duly executed and
delivered by the Trustee.
Section 19.12 No Bankruptcy Petition. The Trustee, by entering
into the Agreement, and each Certificateholder, by accepting a Certificate,
hereby covenant and agree that they will not at any time institute against, or
join any other Person in instituting against, the Seller or the Trust any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other similar proceedings under any federal or state bankruptcy or similar
law in connection with the Certificates or the Agreement.
ARTICLE XX
Termination
Section 20.01 Termination of the Trust. (a) The respective
obligations and responsibilities of the Seller, the Servicer and the Trustee
created hereby and the Trust created by the Agreement shall terminate (i) upon
the payment to Certificateholders of all amounts required to be paid to them
pursuant to the Agreement and the disposition of all property held as part of
the Trust and (ii) at the time provided in Section 20.02; provided, however,
that in no event shall the trust created by the Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United States to the Court of St.
▇▇▇▇▇, living on the date of the Agreement. The Servicer shall promptly notify
the Trustee of any prospective termination pursuant to this Section.
(b) Except as provided in Section 20.01(a), neither the Seller
nor any Owner shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the
Distribution Date upon which Certificateholders shall surrender their
Certificates to the Trustee for payment of the final distribution and
cancellation of the Certificates, shall be given by the Trustee by letter to
Certificateholders mailed not earlier than the 15th day and not later than the
25th day of the month next preceding the specified Distribution Date stating (A)
the Distribution Date upon which final payment of the Certificates shall be made
upon presentation and surrender of the Certificates at the office of the Trustee
therein designated, (B) the amount of such final payment and (C) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office of the Trustee therein specified. The Trustee shall give such notice to
the Certificate Registrar (if other than the Trustee) at the time such notice is
given to Certificateholders. Upon presentation and surrender of the
Certificates, the Trustee shall cause to be distributed to Certificateholders
amounts distributable on such Distribution Date pursuant to Section 14.06.
-53-
In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after such second notice all of the Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to the Agreement. Any funds remaining in the Trust after
exhaustion of such remedies shall be distributed by the Trustee to the Seller.
Section 20.02 Optional Purchase of All Receivables. On the
last day of any Collection Period as of which the Pool Balance shall be less
than or equal to 10% of the Original Pool Balance, the Servicer shall have the
option to purchase the corpus of the Trust; provided, however, that the Servicer
may not effect any such purchase if at such time the rating of World Omni's
long-term debt obligations is less than Baa3 by Moody's, unless the Trustee
shall have received an Opinion of Counsel to the effect that such purchase would
not constitute a fraudulent conveyance. To exercise such option, the Servicer
shall deposit an amount into the Collection Account pursuant to Section 14.05
equal to the aggregate Purchase Amount for the Receivables (including defaulted
Receivables), plus the appraised value of any other property held by the Trust,
such value to be determined by an appraiser mutually agreed upon by the Servicer
and the Trustee. The Servicer thereafter shall succeed to all interests in and
to the Trust.
ARTICLE XXI
Miscellaneous Provisions
Section 21.01 Amendment. The Agreement may be amended by the
Seller, the Servicer and the Trustee, without the consent of the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in the Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any provision in the Agreement or of
modifying in any manner the rights of the Certificateholders; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel delivered to
the Trustee, adversely affect in any material respect the interests of any
Certificateholder.
The Agreement may also be amended from time to time by the
Seller, the Servicer and the Trustee with the consent of the Holders of Class
[A] Certificates and Class [B] Certificates (which consent shall be conclusive
and binding on such Holders and on all future Holders of such Certificates and
of any Certificates issued upon the transfer therefor or in exchange thereof or
in lieu thereof, whether or not notation of such consent is made upon the
Certificates), each voting as a class, evidencing not less than a majority of
the Class [A] Certificate Balance and Class [B] Certificate Balance,
respectively, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Agreement, or of modifying in
any manner the rights of the Certificateholders; provided, however, that no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made on any Certificate or (b) reduce
the aforesaid percentage of the Class [A] Certificate
-54-
Balance and Class [B] Certificate Balance required to consent to any such
amendment without the consent of the Holders of all Certificates then
outstanding.
Promptly after the execution of any such amendment or consent,
the Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder and the Rating Agencies.
It shall not be necessary for the consent of
Certificateholders pursuant to this Section to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents (and
any other consents of Certificateholders provided for in this Agreement) and of
evidencing the authorization of any action by Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
Prior to the execution of any amendment to the Agreement, the
Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by the Agreement
and the Opinion of Counsel referred to in Section 21.02(i)(1). The Trustee may,
but shall not be obligated to, enter into any such amendment that affects the
Trustee's own rights, duties or immunities under the Agreement or otherwise.
Section 21.02 Protection of Title to Trust. (a) The Seller
shall execute and file such financing statements and cause to be executed and
filed such continuation statements, all in such manner and in such places as may
be required by law fully to preserve, maintain and protect the interest of the
Certificateholders and the Trustee in the Receivables and in the proceeds
thereof. The Seller shall deliver (or cause to be delivered) to the Trustee
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of ss. 9-402(7) of
the UCC, unless it shall have given the Trustee at least five days' prior
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) Each of the Seller and the Servicer shall have an
obligation to give the Trustee at least 60 days' prior written notice of any
relocation of its principal executive office if, as a result of such relocation,
the applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement, and shall promptly file any such amendment or new financing
statement. The Servicer shall at all times maintain its principal executive
office and each office from which it shall service Receivables within the United
States of America.
(d) The Servicer shall maintain accounts and records as to
each Standard Receivable accurately and in sufficient detail to permit (i) the
reader thereof to know at any time the status of such Receivable, including
payments and recoveries made and payments owing (and
-55-
the nature of each) and (ii) reconciliation between payments or recoveries on
(or with respect to) each Receivable and the amounts from time to time deposited
in the Distribution Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that,
from and after the time of sale under the Agreement of the Standard Receivables,
the Servicer's master computer records (including any back-up archives) that
refer to a Standard Receivable shall indicate clearly the interest of the Trust
in such Standard Receivable and that such Standard Receivable is owned by the
Trustee. Indication of the Trustee's ownership of a Standard Receivable shall be
deleted from or modified on the Servicer's computer systems when, and only when,
such Receivable shall have been paid in full or repurchased.
(f) If at any time the Seller or the Servicer shall propose to
sell, grant a security interest in, or otherwise transfer any interest in
automotive receivables to, any prospective purchaser, lender or other
transferee, the Servicer shall give to such prospective purchaser, lender or
other transferee computer tapes, records or print-outs (including any restored
from back-up archives) that, if they shall refer in any manner whatsoever to any
Standard Receivable, shall indicate clearly that such Standard Receivable has
been sold and is owned by the Trustee.
(g) The Servicer shall permit the Trustee and its agents at
any time during normal business hours to inspect, audit and make copies of and
abstracts from the Servicer's records regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Trustee,
within five Business Days, a list of all Receivables (by contract number and
name of Obligor) then held as part of the Trust, together with a reconciliation
of such list to the Schedule of Receivables and to each of the Servicer's
Certificates furnished before such request indicating removal of Receivables
from the Trust.
(i) The Servicer shall deliver to the Trustee:
(A) promptly after the execution and delivery of the
Agreement and, if required pursuant to Section 21.01,
of each amendment hereto and on certain Distribution
Dates as required by Sections 3.02(b)(2)(iii)(B) and
12.03(b)(x)(B) of the Agreement, an Opinion of
Counsel stating that, in the opinion of such Counsel,
either (1) all financing statements and continuation
statements have been executed and filed that are
necessary fully to preserve and protect the interest
of the Trustee in the Receivables, and reciting the
details of such filings or referring to prior
Opinions of Counsel in which such details are given,
or (2) no such action shall be necessary to preserve
and protect such interest; and
(B) within 90 days after the beginning of each calendar
year beginning with the first calendar year beginning
more than three months after the initial Cutoff Date,
an Opinion of Counsel, dated as of a date during such
90-day period, stating that, in the opinion of such
counsel, either (1) all financing
-56-
statements and continuation statements have been
executed and filed that are necessary fully to
preserve and protect the interest of the Trustee in
the Receivables, and reciting the details of such
filings or referring to prior Opinions of Counsel in
which such details are given, or (2) no such action
shall be necessary to preserve and protect such
interest.
Each Opinion of Counsel referred to in clause (l) or (2) above shall specify any
action necessary (as of the date of such opinion) to be taken in the following
year to preserve and protect such interest.
(j) The Seller shall, to the extent required by applicable
law, cause the Certificates to be registered with the Securities and Exchange
Commission pursuant to Section 12(b) or Section 12(g) of the Securities Exchange
Act of 1934 within the time periods specified in such sections.
Section 21.03 Separate Counterparts. The Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 21.04 Limitation on Rights of Certificateholders. (a)
The death or incapacity of any Certificateholder shall not operate to terminate
the Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties to
the Agreement or any of them.
(b) No Certificateholder shall have any right to vote (except
as provided in Section 21.01 or 18.05) or in any manner otherwise control the
operation and management of the Trust or the obligations of the parties to the
Agreement; nor shall any provision in the Agreement or contained in the
Certificates be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken pursuant to any provision of the Agreement.
(c) No Certificateholder shall have any right to institute any
suit, action or proceeding in equity or at law upon or under or with respect to
the Agreement, unless: (i) such Holder previously shall have given to the
Trustee written notice of a continuing Event of Default; (ii) the Holders of
Certificates evidencing not less than 25% of the Certificate Balance shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee under the Agreement and shall have offered
to the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby; (iii) the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity
shall have neglected or refused to institute any such action, suit or
proceeding; and (iv) during such 60-day period no request or waiver inconsistent
with such written request shall have been given to the Trustee by Holders
representing a majority of the Certificate Balance. It is understood and
intended that no one or more Holders of Certificates shall have any right in any
manner whatever by virtue of, or by availing of, any provisions of the Agreement
to affect,
-57-
disturb or prejudice the rights of any other Holders of Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under the Agreement, except in the manner provided in
the Agreement.
Section 21.05 Governing Law. THE AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES UNDER THE AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 21.06 Notices. All demands, notices and communications
upon or to the Seller, the Servicer, the Trustee or the Rating Agencies under
the Agreement shall be in writing, personally delivered or mailed by certified
mail, return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Seller, to World Omni Financial Corp., ▇▇▇ ▇.▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: A. ▇▇▇▇▇▇ ▇▇▇▇▇ ((954)
429-2200); (b) in the case of the Servicer, to World Omni Financial Corp., ▇▇▇
▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: A. ▇▇▇▇▇▇ ▇▇▇▇▇
((▇▇▇) ▇▇▇-▇▇▇▇); (c) in the case of the Trustee, at the Corporate Trust Office;
(d) in the case of Moody's, to ▇▇▇▇▇'▇ Investors Service, Inc., ABS Monitoring
Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; (e) in the case of
Standard & Poor's, to Standard & Poor's Ratings Group, ▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Surveillance Department; (f)
in the case of Duff and ▇▇▇▇▇▇, to ▇▇▇▇ & ▇▇▇▇▇▇ Credit Rating Company, ▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured
Finance; and (g) in the case of Fitch, to Fitch Investors Service, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Structured Surveillance
Department. Any notice required or permitted to be mailed to a Certificateholder
shall be given by first class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in the Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder shall receive such notice.
Section 21.07 Severability of Provisions. Any provision of the
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of the Agreement,
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 21.08 Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Sections 16.04 and 17.03 and as
provided in the provisions of the Agreement concerning the resignation of the
Servicer, the Agreement may not be assigned by the Seller or the Servicer
without the prior written consent of the Trustee and the Holders of Certificates
evidencing not less than 66% of the Certificate Balance.
Section 21.09 Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Trust.
The interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever.
-58-
Section 21.10 Limitations on Rights of Others. The provisions
of this Agreement are solely for the benefit of the Seller, the Servicer, the
Trustee and the Certificateholders, and nothing in this Agreement, whether
express or implied, shall be construed to give any other Person any legal or
equitable right, remedy or claim in respect of the Trust or under or in respect
of the Agreement or any covenants, conditions or provisions contained herein.
Section 21.11 Headings. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
Section 21.12 Nonpetition Covenants. (a) Notwithstanding any
prior termination of this Agreement, the Servicer and the Seller shall not,
prior to the date that is one year and one day after the termination of the
Agreement with respect to the Trust, acquiesce to, petition or otherwise invoke
or cause the Trust to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Trust under any
federal or state bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator, or other
similar official of the Trust or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Trust.
(b) Notwithstanding any prior termination of the Agreement,
the Servicer shall not, prior to the date that is one year and one day after the
termination of the Agreement with respect to the Seller, acquiesce to, petition
or otherwise invoke or cause the Seller to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller under any federal or state bankruptcy, insolvency or similar law,
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator,
or other similar official of the Seller or any substantial part of its property,
or ordering the winding up or liquidation of the affairs of the Seller.
-59-
EXHIBIT A
FORM OF CLASS [A] CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CLASS [A]
CERTIFICATE WILL BE MADE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS [B] CERTIFICATE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
NUMBER $ R-
CUSIP NO.
WORLD OMNI AUTO RECEIVABLES TRUST [_______]-[_________]
[_____]% ASSET BACKED CERTIFICATE, CLASS [A]
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of retail installment sale contracts (as
defined herein) secured by new and used automobiles and light duty trucks.
(This Class [A] Certificate does not represent an interest in or obligation of
World Omni Financial Corp. or any of its affiliates, except to the extent
described below.)
THIS CERTIFIES THAT [____________________] is the registered owner of
[____________________] DOLLARS nonassessable, fully-paid, fractional undivided
interest in World Omni Auto Receivables Trust [_______]-[_________] (the
"Trust") formed pursuant to the Pooling and Servicing Agreement (the
"Agreement") dated as of [__________], among World Omni Financial Corp., a
Florida corporation, as seller (the "Seller"), World Omni Financial Corp., a
Florida corporation, as servicer (the "Servicer") and
[______________________________], a banking association, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in the Agreement.
A-1
This Certificate is one of a duly authorized series of
Certificates, designated as the [_____]% Asset Backed Certificates, Class [A]
(herein called the "Class [A] Certificates"), all issued under the Agreement, to
which Agreement reference is hereby made for a statement of the respective
rights and obligations thereunder of the Seller, the Servicer, the Trustee and
Holders of the Certificates. The Class [A] Certificates are subject to all terms
of the Agreement.
The property of the Trust includes a pool of retail
installment sale contracts for new and used automobiles and light duty trucks
(the "Receivables"), all monies received on or after the related Cutoff Date,
security interests in the vehicles financed thereby, certain bank accounts and
the proceeds thereof, proceeds from claims on certain insurance policies and all
proceeds of the foregoing. Under the Agreement, there will be distributed on the
[_____] day of each month or, if such day is not a Business Day, the next
Business Day (each, a "Distribution Date"), commencing on [__________], to the
Person in whose name this Class [A] Certificate is registered at the close of
business on the first day of the month in which such Distribution Date occurs
(the "Record Date"), such Certificateholder's fractional undivided interest in
the amount to be distributed to Class [A] Certificateholders on such
Distribution Date.
It is the intent of the Seller, the Trustee and the
Certificateholders that, for purposes of federal income, state and local income
and single business tax and any other income taxes, the Trust will be treated as
a grantor trust and the Certificates will be treated as interests in a grantor
trust. The Seller, the Servicer, the Trustee and the Certificateholders, by
acceptance of a Certificate, agree to treat, and to take no action inconsistent
with the treatment of, the Certificates for such tax purposes as interests in a
grantor trust.
Distributions on this Class [A] Certificate will be made as
provided in the Agreement by the Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Class [A] Certificate or the making of any notation hereon,
except that with respect to Class [A] Certificates registered on the Record Date
in the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Except as otherwise provided in
the Agreement and notwithstanding the above, the final distribution on this
Class [A] Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Class [A] Certificate at the office or agency maintained for that purpose by the
Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this
Class [A] Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Trustee, by manual signature, this
Class [A] Certificate shall not entitle the Holder hereof to any benefit under
the Agreement or be valid for any purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
A-2
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and
not in its individual capacity, has caused this Class [A] Certificate to be duly
executed.
Date: [__________]
WORLD OMNI AUTO RECEIVABLES TRUST
[----------]-[----------]
By: [____________________], not in its
individual capacity but solely as Trustee
By: _____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A] Certificates referred to in the within-mentioned
Agreement.
Date:
[------------------------------]
as Trustee
By: __________________________________________
Authorized Signatory
[REVERSE OF CLASS [A] CERTIFICATE]
The Class [A] Certificates do not represent an obligation of,
or an interest in, the Seller, the Servicer, the Trustee or any affiliates of
any of them, and no recourse may be had against such parties or their assets
except as expressly set forth or contemplated herein or in the Agreement. In
addition, this Class [A] Certificate is not guaranteed by any governmental
agency or instrumentality and is limited in right of payment to certain
collections and recoveries with respect to the Receivables (and certain other
amounts), all as more specifically set forth herein and in the Agreement. A copy
of the Agreement may be examined by any Certificateholder upon written request
during normal business hours at the principal office of the Seller and at such
other places, if any, designated by the Seller.
A-3
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Seller, the Servicer and the Trustee and the rights of the
Certificateholders at any time by the Seller, the Servicer and the Trustee with
the consent of the Holders of Certificates evidencing not less than a majority
of the Certificate Balance. Any such consent by the Holder of this Class [A]
Certificate shall be conclusive and binding on such Holder and on all future
Holders of this Certificate and of any Class [A] Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent is made upon this Class [A] Certificate. The Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Class [A] Certificate is
registerable in the Certificate Register upon surrender of this Class [A]
Certificate for registration of transfer at the offices or agencies of the
Certificate Registrar maintained by the Trustee in the Borough of Manhattan, The
City of New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Class [A] Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Agreement is [____________________].
Except as provided in the Agreement, the Class [A]
Certificates are issuable only as registered certificates without coupons in a
minimum denomination of $[__________]. As provided in the Agreement and subject
to certain limitations therein set forth, Class [A] Certificates are
exchangeable for new Class [A] Certificates of authorized denominations
evidencing the same aggregate denomination, as requested by the Holder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith.
The Trustee, the Certificate Registrar and any agent of the
Trustee or the Certificate Registrar may treat the Person in whose name this
Class [A] Certificate is registered as the owner hereof for all purposes, and
none of the Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Agreement and the disposition of all property held by the Trust. The Servicer of
the Receivables may at its option purchase the Trust property at a price
specified in the Agreement, and such purchase of the Receivables and other
property of the Trust will effect early retirement of the Certificates; however,
such right of purchase is exercisable only as of the last day of any Collection
Period as of which the Pool Balance is less than or equal to 10% of the Original
Pool Balance.
A-4
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
------------------------------------------------------- (Please print or type
name and address, including postal zip code, of assignee)
------------------------------------------------------- the within Class [A]
Certificate, and all rights thereunder, hereby irrevocably constituting and
appointing to
------------------------------ transfer said Class [A] Certificate on the books
of the Certificate Registrar, with full power of substitution in the premises.
Dated:
*/
--------------------------------------
Signature Guaranteed:
*/
--------------------------------------
------------------
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Class [A] Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-5
EXHIBIT B
FORM OF CLASS [B] CERTIFICATE
THIS CLASS [B] CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS, AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM. THE TRANSFER OF THIS CLASS [B]
CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN THE
AGREEMENT UNDER WHICH THIS CLASS [B] CERTIFICATE IS ISSUED (A COPY OF WHICH IS
AVAILABLE FROM THE TRUSTEE UPON REQUEST), INCLUDING RECEIPT BY THE TRUSTEE OF AN
INVESTMENT LETTER IN WHICH THE TRANSFEREE SHALL MAKE CERTAIN REPRESENTATIONS.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON THAT IS AN
EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
ANY GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A "PLAN") OR ANY PERSON
INVESTING THE ASSETS OF A PLAN EXCEPT AS PROVIDED IN THE AGREEMENT REFERRED TO
HEREIN.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CLASS [B]
CERTIFICATE WILL BE MADE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS [B] CERTIFICATE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
NUMBER $ R-
CUSIP NO.
WORLD OMNI AUTO RECEIVABLES TRUST [_________]-[________]
[_____]% ASSET BACKED CERTIFICATE, CLASS [B]
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of retail installment sale contracts (as
defined herein) secured by new and used automobiles and light duty trucks.
(This Class [B] Certificate does not represent an interest in or obligation of
World Omni Financial Corp. or any of its affiliates, except to the extent
described below.)
B-1
THIS CERTIFIES THAT [______________________________] is the
registered owner of [______________________________] DOLLARS nonassessable,
fully-paid, fractional undivided interest in World Omni Auto Receivables Trust
[______]-[______] (the "Trust") formed pursuant to a Pooling and Servicing
Agreement (the "Agreement") dated as of [__________], among World Omni Financial
Corp., a Florida corporation, as seller (the "Seller"), World Omni Financial
Corp., a Florida corporation, as servicer (the "Servicer") and
[___________________], a banking association, as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Agreement.
This Certificate is one of a duly authorized series of
Certificates, designated as the [_____]% Asset Backed Certificates, Class [B]
(herein called the "Class [B] Certificates") all, issued under the Agreement, to
which Agreement reference is hereby made for a statement of the respective
rights and obligations thereunder of the Seller, the Servicer, the Trustee and
Holders of the Certificates. The Class [B] Certificates are subject to all terms
of the Agreement.
The property of the Trust includes a pool of retail
installment sale contracts for new and used automobiles and light duty trucks
(the "Receivables"), all monies or received on or after the related Cutoff Date
security interests in the vehicles financed thereby, certain bank accounts and
the proceeds thereof, proceeds from claims on certain insurance policies and all
proceeds of the foregoing. Under the Agreement, there will be distributed on the
[_____] day of each month or, if such day is not a Business Day, the next
Business Day (each, a "Distribution Date"), commencing on [__________], to the
Person in whose name this Class [B] Certificate is registered at the close of
business on the first day of the month in which such Distribution Date occurs
(the "Record Date"), such Certificateholder's fractional undivided interest in
the amount to be distributed to Class [B] Certificateholders on such
Distribution Date.
It is the intent of the Seller, the Servicer, the Trustee and
the Certificateholders that, for purposes of federal income, state and local
income and single business tax and any other income taxes, the Trust will be
treated as a grantor trust and the Certificates will be treated as interests in
a grantor trust. The Seller, the Servicer, the Trustee and the
Certificateholders, by acceptance of a Certificate, agree to treat, and to take
no action inconsistent with the treatment of, the Certificates for such tax
purposes as interests in a grantor trust.
Distributions on this Class [B] Certificate will be made as
provided in the Agreement by the Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Class [B] Certificate or the making of any notation hereon,
except that with respect to Class [B] Certificates registered on the Record Date
in the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Except as otherwise provided in
the Agreement and notwithstanding the above, the final distribution on this
Class [B] Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Class [B] Certificate at the office or agency maintained for that purpose by the
Trustee in the Borough of Manhattan, The City of New York.
B-2
Reference is hereby made to the further provisions of this
Class [B] Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Trustee, by manual signature, this
Class [B] Certificate shall not entitle the Holder hereof to any benefit under
the Agreement or be valid for any purpose.
THIS CLASS [B] CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and
not in its individual capacity, has caused this Class [B] Certificate to be duly
executed.
Date: [__________]
WORLD OMNI AUTO RECEIVABLES TRUST [_________]-[_____]
By: [____________________], not in its individual
capacity but solely as Trustee
By: __________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B] Certificates referred to in the within-mentioned
Agreement.
Date:
[------------------------------]
as Trustee
By: _______________________________________
Authorized Signatory
B-3
[REVERSE OF CLASS [B] CERTIFICATE]
The Class [B] Certificates do not represent an obligation of,
or an interest in, the Seller, the Servicer, the Trustee or any affiliates of
any of them, and no recourse may be had against such parties or their assets
except as expressly set forth or contemplated herein or in the Agreement. In
addition, this Class [B] Certificate is not guaranteed by any governmental
agency or instrumentality and is limited in right of payment to certain
collections and recoveries with respect to the Receivables (and certain other
amounts), all as more specifically set forth herein and in the Agreement. A copy
of the Agreement may be examined by any Certificateholder upon written request
during normal business hours at the principal office of the Seller and at such
other places, if any, designated by the Seller.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Seller, the Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Seller, the Servicer
and the Trustee with the consent of the Holders of Certificates evidencing not
less than a majority of the Certificate Balance. Any such consent by the Holder
of this Class [B] Certificate shall be conclusive and binding on such Holder and
on all future Holders of this Class [B] Certificate and of any Class [B]
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent is made upon this Class [B]
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
No transfer of this Class [B] Certificate will be made unless
such transfer is exempt from the registration requirements of the Securities Act
and any applicable state securities laws or is made in accordance with said Act
and laws. In the event that the Holder hereof desires to make such a transfer,
the Holder and such Holder's transferee will be required to comply with certain
procedures set forth in the Agreement, including the delivery of certain
certificates and investment letters. The Holder hereof, by acceptance of this
Certificate, does hereby agree to indemnify the Trustee, the Seller, the
Servicer and the Certificate Registrar against any liability that may result if
any such transfer is not so exempt or is not made in accordance with federal and
state laws. In connection with any such transfer, the Trustee will also require
(i) a representation letter, in the form described in the Agreement, stating
that the transferee is not a Plan and is not acting on behalf of a Plan or using
the assets of a Plan to effect such purchase or (ii) if such transferee is a
Plan, an opinion of counsel acceptable to and in form and substance satisfactory
to the Trustee and the Depository with respect to certain matters described in
the Agreement.
Except as provided in the Agreement, the Class [B]
Certificates are issuable only as registered certificates without coupons in a
minimum denominations of $[__________]. As provided in the Agreement and subject
to certain limitations therein set forth, Class [B] Certificates are
exchangeable for new Class [B] Certificates of authorized denominations
evidencing the same aggregate denomination, as requested by the Holder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith.
B-4
The Trustee, the Certificate Registrar and any agent of the
Trustee or the Certificate Registrar may treat the Person in whose name this
Class [B] Certificate is registered as the owner hereof for all purposes, and
none of the Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Agreement and the disposition of all property by the Trust. The Servicer of the
Receivables may at its option purchase the Trust property at a price specified
in the Agreement, and such purchase of the Receivables and other property of the
Trust will effect early retirement of the Class [B] Certificates; however, such
right of purchase is exercisable only as of the last day of any Collection
Period as of which the Pool Balance is less than or equal to 10% of the Original
Pool Balance.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
------------------------------------------------------------ (Please print or
type name and address, including postal zip code, of assignee)
------------------------------------------------------------ the within Class
[B] Certificate, and all rights thereunder, hereby irrevocably constituting and
appointing
------------------------------------- to transfer said Class [B] Certificate on
the books of the Certificate Registrar, with full power of substitution in the
premises.
Dated:
*/
------------------------------------------
Signature Guaranteed:
*/
------------------------------------------
------------------
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Class [B] Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
B-5
EXHIBIT C
[FORM OF DEPOSITORY AGREEMENT]
C-1
EXHIBIT D
FORM OF SERVICER'S CERTIFICATE
WORLD OMNI AUTO RECEIVABLES TRUST [________]-[____________]
% Asset Backed Certificates, Class [A]
% Asset Backed Certificates, Class [B]
Distribution Date:
Collection Period:
Under the Pooling and Servicing Agreement dated as
[__________] of by and among World Omni Financial Corp., a Florida corporation,
as Seller, World Omni Financial Corp., a Florida corporation, as Servicer, and
[______________________________], as Trustee, the Servicer is required to
prepare certain information each month regarding current distributions to
Certificateholders and the performance of the Trust during the previous month.
The information that is required to be prepared with respect to the Distribution
Date and Collection Period listed above is set forth below. Certain of the
information is presented on the basis of an original principal amount of $1,000
per Class [A] Certificate or Class [B] Certificate, as appropriate, and certain
other information is presented based upon the aggregate amounts for the Trust as
a whole.
A. Information Regarding the Current Monthly Distribution.
------------------------------------------------------
1. Class [A] Certificates.
----------------------
(a) The aggregate amount of the distribution
to Class [A] Certificateholders..............................$
(b) The amount of the distribution set forth in
paragraph A.1.(a) above in respect of interest...............$
(c) The amount of the distribution set forth in
paragraph A.1.(a) above in respect of principal..............$
(d) The amount of the distribution set forth in
paragraph A.1.(a) above per $1,000 interest..................$
(e) The amount of the distribution set forth in
paragraph A.1.(b) above per $1,000 interest..................$
(f) The amount of the distribution set forth in
paragraph A.1.(c) above per $1,000 interest..................$
D-1
2. Class [B] Certificates.
----------------------
(a) The aggregate amount of the distribution
to Class [B] Certificateholders..............................$
(b) The amount of the distribution set forth in
paragraph A.2(a) above in respect of interest................$
(c) The amount of the distribution set forth in
paragraph A.2(a) above in respect of principal...............$
(d) The amount of the distribution set forth in
paragraph A.2(a) above per $1,000 interest...................$
(e) The amount of the distribution set forth in
paragraph A.2(b) above per $1,000 interest...................$
(f) The amount of the distribution set forth in
paragraph A.2(c) above per $1,000 interest...................$
B. Information Regarding the Performance of the Trust.
--------------------------------------------------
1. Pool Balance and Certificate Balances.
-------------------------------------
(a) The Pool Balance close of business on the last
day of the preceding Collection Period.......................$
(b) The Class [A] Certificate Balance as of the close of
business on the last day of the preceding Collection
Period, after giving effect to payments allocated to
principal set forth in Paragraph A.1(c) above................$
(c) The Class [B] Certificate Balance as of the close of
business of the last day of the preceding Collection
Period, after giving effect to payments allocated to
principal set forth in paragraph A.2(c) above................$
(d) The Pool Factor as of the close of business on
the last day of the preceding Collection Period..............$
2. Servicing Fee and Advances.
--------------------------
(a) The aggregate amount of the Servicing
Fee paid to the Servicer with respect
to the preceding Collection Period...........................$
(b) The amount of such Servicing Fee per
$1,000 interest..............................................$
D-2
(d) The amount of any unpaid Servicing Fee.......................$
(e) The change in the amount of any unpaid Servicing
Fee from the previous Distribution Date......................$
(f) Aggregate Advances on such
Distribution Date............................................$
3. Payment Shortfalls.
------------------
(a) The amount of the Class [A] Interest Carryover Shortfall
after giving effect to the payments
set forth in paragraph A.1(b) above..........................$
(b) The amount of the Class [A] Principal Carryover Shortfall
after giving effect to the payment
set forth in paragraph A.1(c) above..........................$
(c) The amount of the Class [B] Interest Carryover Shortfall
after giving effect to the payments
set forth in paragraph A.2(b) above..........................$
(d) The amount of the Class [B] Principal Carryover Shortfall
after giving effect to the payments
set forth in paragraph A.2(c) above..........................$
(e) The amount otherwise distributable to Class [B]
Certificateholders that is distributed
to Class [A] Certificateholders..............................$
4. Reserve Account.
---------------
(a) The Reserve Account balance after
giving effect to distributions made on
such Distribution Date.......................................$
(b) The change in the Reserve Account
on such Distribution Date....................................$
D-3
EXHIBIT E
[FORM OF ACCOUNTANTS' LETTER]
E-1
EXHIBIT F
FORM OF TRANSFEROR CERTIFICATE
[DATE]
[Seller]
[Seller Address]
[Trustee]
[Trustee Address]
Re: World Omni Auto Receivables Trust [______]-[________]
Asset Backed Certificates, Class [B]
Ladies and Gentlemen:
In connection with our disposition of the above-referenced
[_____]% Asset Certificates, Class [B] (the "Certificates") we certify that (a)
we understand that the Certificates have not been registered under the
Securities Act of 1933, as amended (the "Act"), and are being transferred by us
in a transaction that is exempt from the registration requirements of the Act
and (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act.
Very truly yours,
[NAME OF TRANSFEROR]
By: _______________________________________
Authorized Officer
F-1
EXHIBIT G
FORM OF INVESTMENT LETTER
[DATE]
[Seller]
[Seller Address]
[Trustee]
[Trustee Address]
Re: World Omni Auto Receivables Trust [ ]-[ ]
-- --
Asset Backed Certificates, Class [B]
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced
Asset Backed Certificates, Class [B] (the "Certificates") we certify that (a) we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the "Act"), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we are an "accredited investor,"
as defined in Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investments in the Certificates, (c) we have had the opportunity to
ask questions of and receive answers from the seller concerning the purchase of
the Certificates and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Certificates, (d) we are not an
employee benefit plan or trust account that is subject to the Employee
Retirement Income Security Act of 1974, as amended, or section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such Plan or using the assets of any such Plan to acquire Class [B]
Certificates, (e) we are acquiring the Certificates for investment for our own
account and not with a view to any distribution of such Certificates (but
without prejudice to our right at all times to sell or otherwise dispose of the
Certificates in accordance with clause (g) below), (f) we have not offered or
sold any Certificates to, or solicited offers to buy any Certificates from, any
person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action that would result in a violation of Section 5
of the Act or any state securities laws and (g) we will not sell, transfer or
otherwise dispose of any Certificates unless (1) such sale, transfer or other
disposition is made pursuant to an effective registration statement under the
Act and in compliance with any relevant state securities laws or is exempt from
such registration requirements and, if requested, we will at our expense provide
an opinion of counsel satisfactory to the addressees of this certificate that
such sale, transfer or other disposition may be made pursuant to an exemption
from the Act, (2) the purchaser or transferee of such Note has executed and
delivered to you a certificate to substantially the same effect as this
certificate and (3) the purchaser or transferee has otherwise complied with any
G-1
conditions for transfer set forth in the Pooling and Servicing Agreement dated
as of , among World Omni Financial Corp. and .
Very truly yours,
[NAME OF TRANSFEREE]
By: ___________________________________________
Authorized Officer
G-2
EXHIBIT H
FORM OF RULE 144A LETTER
[DATE]
[Seller]
[Seller Address]
[Trustee]
[Trustee Address]
Re: World Omni Auto Receivables Trust [ ]-[ ]
-- --
Asset Backed Certificates, Class [B]
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced
____ % Asset-Backed Certificates, Class [B] (the "Certificates") we certify that
(a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the seller
concerning the purchase of the Certificates and all matters relating thereto or
any additional information deemed necessary to our decision to purchase the
Certificates, (d) we are not an employee benefit plan, trust or account that is
subject to the Employee Retirement Income Security Act of 1974, as amended, or
section 4975 of the Internal Revenue Code of 1986, as amended, nor are we acting
on behalf of any such Plan or using the assets of any such Plan to acquire Class
[B] Certificates, (e) we have not, nor has anyone acting on our behalf, offered,
transferred, pledged, sold or otherwise disposed of the Certificates, any
interest in the Certificates or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from or otherwise approached or negotiated with respect to the Certificates, any
interest in the Certificates or any other similar security with, any person in
any manner, or made any general solicitation by means of general advertising or
in any other manner, or taken any other action that would constitute a
distribution of the Certificates under the Act or that would render the
disposition of the Certificates a violation of Section 5 of the Act or any state
securities laws or require registration pursuant thereto, and we will not act,
or authorize any person to act, in such manner with respect to the Certificates,
and (f) we are a "qualified institutional buyer" as that term is defined in Rule
144A under the Act. We are aware that the sale to us is being made in reliance
on Rule 144A. We are acquiring the Certificates for our own account or for
resale pursuant to Rule 144A and understand that such Certificates may be
resold, pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to
H-1
whom notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A or (ii) pursuant to another exemption from registration
under the Act.
Very truly yours,
[NAME OF TRANSFEREE]
By: ______________________________________
Authorized Officer
H-2
EXHIBIT J
SUBSEQUENT TRANSFER ASSIGNMENT NO.__
For value received, in accordance with and subject to the
Pooling and Servicing Agreement dated as of , [_______] (the "Agreement"), among
World Omni Financial Corp., a Florida corporation (the "Seller"), World Omni
Financial Corp., a Florida corporation (the "Servicer"), and __________________,
a ________________ (the "Trustee"), the Seller does hereby sell, assign,
transfer and otherwise convey unto the Trustee, for the benefit of the
Certificateholders, without recourse (except as expressly provided in the
Agreement), all right, title and interest of the Seller in and to (i) the
Subsequent Receivables, having an aggregate Principal Balance equal to $ , set
forth on Schedule A hereto (which shall supplement Schedule A to the Agreement)
and all monies received thereon on and after the Subsequent Cutoff Date; (ii)
the security interests in the Financed Vehicles granted by the Obligors pursuant
to such Subsequent Receivable and any other interest of the Seller in such
Financed Vehicles; (iii) any proceeds with respect to such Subsequent
Receivables from claims on any physical damage, credit life or disability
insurance policies covering Financed Vehicles or Obligors; (iv) any proceeds
with respect to such Subsequent Receivables from recourse to Dealers thereon
with respect to which the Servicer has determined in accordance with its
customary servicing procedures that eventual payment in full is unlikely; (v)
any Financed Vehicle that shall have secured any such Subsequent Receivable and
that shall have been acquired by or on behalf of the Seller, the Servicer or the
Trust; and (vi) the proceeds of any and all of the foregoing. The foregoing sale
does not constitute and is not intended to result in any assumption by the Trust
of any obligation of the Seller to the Obligors, insurers or any other person in
connection with the Standard Receivables, Receivable Files, any insurance
policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the Seller contained
in the Agreement (including the Officers' Certificate of the Seller accompanying
this Assignment, in the form of Annex A hereto) and is to be governed in all
respects by the Agreement.
Capitalized terms used and not otherwise defined herein shall
have the meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of --------------, [---------].
World Omni Financial Corp.
By: __________________________________
Name:
J-1
SCHEDULE A TO
Subsequent Transfer Assignment
Schedule of Subsequent Receivables
ANNEX A TO
Subsequent Transfer Assignment
World Omni Financial Corp.
OFFICERS' CERTIFICATE
The undersigned, _______________ and ________________, the
duly qualified and elected __________________ and ____________________ of World
Omni Financial Corp. (the "Seller"), in connection with the conveyance of
Subsequent Receivables to World Omni Auto Receivables Trust
[_________]-[_________] (the "Trust") pursuant to Section 3.02(b) of the Pooling
and Servicing Agreement dated as of , ________________, (the "Agreement"), among
the Seller, _________________, as trustee, and World Omni Financial Corp., a
Florida corporation, as servicer, and Subsequent Transfer Assignment No. dated
as of the date hereof from the Seller, hereby certify that:
(a)_________% of the Principal Balances of the Receivables in
the Trust on the date hereof (including the Subsequent Receivables conveyed to
the Trust on the date hereof) represent vehicles financed at World Omni's used
vehicle rate.
(b)______The weighted average APR of the Receivables in the
Trust on the date hereof (including the Subsequent Receivables conveyed to the
Trust on the date hereof) is ____%.
(c)______The weighted average remaining term of the Subsequent
Receivables in the Trust on the date hereof (including the Subsequent
Receivables conveyed to the Trust on the date hereof) is _____ months.
(d)______All other conditions precedent set forth in Section
3.02(b)(1) of the Agreement relating to the conveyance of Subsequent Receivables
to the Trust have been satisfied.
All capitalized terms used but not otherwise defined herein
shall have the meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand as of this
____ day of ________, _____.
By: _______________________________________
Name:
Title:
EXHIBIT K
ELIGIBLE INVESTMENT TRANSFER ASSIGNMENT NO.__
For value received, in accordance with and subject to the
Pooling and Servicing Agreement dated as of , __________, ______ (the
"Agreement"), among World Omni Financial Corp., a Florida corporation (the
"Seller"), World Omni Financial Corp., a Florida corporation (the "Servicer"),
and ____________________, as trustee, the Seller does hereby sell, assign,
transfer and otherwise convey unto the Issuer, without recourse (except as
expressly provided in the Agreement), all right, title and interest of the
Seller in and to (i) the Eligible Investment Receivables, having an aggregate
Principal Balance equal to $________, set forth on Schedule A hereto (which
shall supplement Schedule C to the Agreement) and all monies received thereon on
and after the Subsequent Cutoff Date, in the case of Simple Interest
Receivables; (ii) the security interests in the Financed Vehicles granted by the
Obligors pursuant to such Eligible Investment Receivables and any other interest
of the Seller in such Financed Vehicles, (iii) any proceeds with respect to such
Eligible Investment Receivables from claims on any physical damage, credit life
or disability insurance policies covering Financed Vehicles or Obligors; (iv)
any proceeds with respect to such Eligible Investment Receivables from recourse
to Dealers thereon with respect to which the Servicer has determined in
accordance with its customary servicing procedures that eventual payment in full
is unlikely, (v) any Financed Vehicle that shall have secured any such Eligible
Investment Receivable and that shall have been acquired by or on behalf of the
Seller, the Servicer or the Trust, and (vi) the proceeds of any and all of the
foregoing. The foregoing sale does not constitute and is not intended to result
in any assumption by the Trust of any obligation of the Seller to the Obligors,
insurers or any other person in connection with the Eligible Investment Standard
Receivables, Receivable File, any insurance policies or any agreement or
instrument relating to any of them.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the Seller contained
in the Agreement (including the Officers' Certificate of the Seller accompanying
this Assignment, in the form of Annex A hereto) and is to be governed in all
respects by the Agreement.
Capitalized terms used and not otherwise defined herein shall
have the meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of ----------, -------.
World Omni Financial Corp.
By: ________________________________________
K-1
SCHEDULE A TO
Eligible Investment Transfer Assignment
Schedule of Eligible Investment Receivables
ANNEX A TO
Eligible Investment Transfer Assignment
World Omni Financial Corp.
OFFICER'S CERTIFICATE
The undersigned _____________________ and
_____________________, the duly qualified and elected and _____________________
and ____________________ of World Omni Financial Corp. (the "Seller"), in
connection with the conveyance of Eligible Investment Receivables to World Omni
Auto Receivables Trust [_______]-[________] (the "Trust") pursuant to Section
12.03 of the Pooling and Servicing Agreement dated as of _____________,
_________ (the "Agreement"), among the Seller, as trustee, and World Omni
Financial Corp., as servicer, and Eligible Investment Transfer Assignment No.
__, dated as of the date hereof from the Seller, hereby certify that:
(a)___________ % of the Principal Balances of the Eligible
Investment Receivables in the Reserve Account on the date hereof (including the
Eligible Investment Receivables conveyed to the Reserve Account on the date
hereof) represent vehicles financed at World Omni's used vehicle rate.
(b)______All other conditions precedent set forth in Section
12.03 of the Agreement relating to the conveyance of Eligible Investment
Receivables to the Reserve Account have been satisfied.
All capitalized terms used but not otherwise defined herein
shall have the meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand as of this ___
day of __________, _________.
By: ______________________________________________
Name:
Title: