EXHIBIT 3.9
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WORLD OMNI LEASE SECURITIZATION L.P.,
CHASE MANHATTAN BANK DELAWARE, AS OWNER TRUSTEE
AND
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, AS INDENTURE TRUSTEE
WORLD OMNI 1999-A AUTOMOBILE LEASE SECURITIZATION TRUST
SECURITIZATION TRUST AGREEMENT
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DATED AS OF AUGUST 1, 1999
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TABLE OF CONTENTS
Page
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RECITALS .............................................................................................1
ARTICLE ONE. DEFINITIONS..................................................................................2
Section 1.01. Definitions..................................................................................2
Section 1.02. Article and Section References..............................................................25
ARTICLE TWO. CREATION OF TRUST...........................................................................25
Section 2.01. Creation of Trust...........................................................................25
Section 2.02. Conveyance of the 1999-A SUBI Interest......................................................25
Section 2.03. Acceptance by Owner Trustee.................................................................25
ARTICLE THREE. DISTRIBUTIONS; RESERVE FUND; STATEMENTS TO SECURITYHOLDERS..................................26
Section 3.01. Distribution Account........................................................................26
Section 3.02. Collections.................................................................................26
Section 3.03. Distributions...............................................................................27
Section 3.04. Reserve Fund................................................................................31
Section 3.05. Net Deposits................................................................................33
Section 3.06. Statements to Noteholders...................................................................33
ARTICLE FOUR. THE TRANSFEROR CERTIFICATE..................................................................35
Section 4.01. The Transferor Certificate..................................................................35
Section 4.02. Authentication and Delivery of Transferor Certificate.......................................35
Section 4.03. No Transfer of Transferor Certificate.......................................................36
Section 4.04. Mutilated, Destroyed, Lost or Stolen Certificates...........................................36
Section 4.05. Persons Deemed Owners.......................................................................36
ARTICLE FIVE. THE TRANSFEROR..............................................................................36
Section 5.01. Representations of Transferor...............................................................36
Section 5.02. Liability of Transferor; Indemnities........................................................38
Section 5.03. Merger or Consolidation of, or Assumption of the Obligations of, Transferor; Certain
Limitations.................................................................................38
Section 5.04. Limitation on Liability of Transferor and Others............................................39
Section 5.05. Transferor May Own Notes....................................................................39
Section 5.06. No Transfer.................................................................................40
Section 5.07. Tax Matters Partner.........................................................................40
ARTICLE SIX. THE OWNER TRUSTEE...........................................................................40
Section 6.01. Duties of Owner Trustee.....................................................................40
Section 6.02. Certain Matters Affecting the Owner Trustee.................................................41
Section 6.03. Owner Trustee Not Liable for Notes, Transferor Certificate or Leases........................42
Section 6.04. Owner Trustee May Own Notes.................................................................43
Section 6.05. Owner Trustee's Fees and Expenses...........................................................43
Section 6.06. Eligibility Requirements for Owner Trustee..................................................43
Section 6.07. Resignation or Removal of Owner Trustee.....................................................43
Section 6.08. Successor Owner Trustee.....................................................................44
Section 6.09. Merger or Consolidation of Owner Trustee....................................................44
Section 6.10. Appointment of Co-Trustee or Separate Owner Trustee.........................................44
Section 6.11. Representations and Warranties of Owner Trustee.............................................45
Section 6.12. Tax Returns.................................................................................46
Section 6.13. Owner Trustee May Enforce Claims Without Possession of Transferor Certificate...............46
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Section 6.14. Suit for Enforcement........................................................................46
Section 6.15. Rights of Indenture Trustee to Direct Owner Trustee.........................................47
Section 6.16. No Petition.................................................................................47
Section 6.17. Authority to Execute........................................................................47
Section 6.18. Management of the Trust.....................................................................47
ARTICLE SEVEN. TERMINATION.................................................................................47
Section 7.01. Termination of the Trust....................................................................47
Section 7.02. Optional Purchase of the 1999-A SUBI Interest...............................................48
ARTICLE EIGHt. EARLY AMORTIZATION EVENTS...................................................................48
Section 8.01. Early Amortization Events...................................................................48
ARTICLE NINE. MISCELLANEOUS PROVISIONS....................................................................50
Section 9.01. Amendment...................................................................................50
Section 9.02. Protection of Title to Trust................................................................51
Section 9.03. Limitation on Rights of Transferor..........................................................52
Section 9.04. Governing Law...............................................................................52
Section 9.05. Notices.....................................................................................53
Section 9.06. Severability of Provisions..................................................................53
Section 9.07. Assignment..................................................................................53
Section 9.08. Transferor Certificate Nonassessable and Fully Paid.........................................53
Section 9.09. Successors and Assigns......................................................................53
ARTICLE TEN. AGENT FOR SERVICE...........................................................................53
Section 10.01. Agent for Service of Transferor.............................................................53
Section 10.02. Agent of Owner Trustee......................................................................54
EXHIBITS:
Exhibit A - Form of Transferor Certificate.....................................................A-1
Exhibit B - Form of Certificate of Trust.......................................................B-1
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SECURITIZATION TRUST AGREEMENT
THIS SECURITIZATION TRUST AGREEMENT, dated as of August 1, 1999, is
made with respect to the formation of the WORLD OMNI 1999-A AUTOMOBILE LEASE
SECURITIZATION TRUST (the "Trust"), among WORLD OMNI LEASE SECURITIZATION L.P.,
a Delaware limited partnership ("▇▇▇▇ ▇▇" or, in its capacity as transferor
hereunder, the "Transferor"), CHASE MANHATTAN BANK DELAWARE, a Delaware banking
corporation, as owner trustee (not in its individual capacity, but solely as
owner trustee hereunder, the "Owner Trustee"), and ▇▇▇▇▇▇ TRUST AND SAVINGS
BANK, an Illinois banking corporation, as indenture trustee (the "Indenture
Trustee").
RECITALS
A. Auto Lease Finance L.P., a Delaware limited partnership ("ALF LP"),
VT Inc., an Alabama corporation (the "Origination Trustee"), and, for certain
limited purposes set forth therein, U.S. Bank National Association, a national
banking association (formerly known as First Bank National Association and
successor trustee to Bank of America Illinois, an Illinois banking corporation)
(together with its successors, "U.S. Bank"), have entered into that certain
Second Amended and Restated Trust Agreement dated as of July 1, 1994, as amended
by that certain Amendment No. 1 to Second Amended and Restated Trust Agreement
dated as of November 1, 1994 and that certain Amendment No. 2 to Second Amended
and Restated Trust Agreement dated as of September 23, 1998 (as the same may be
further amended, supplemented or modified, the "Origination Trust Agreement"),
amending and restating that certain original Trust Agreement dated as of
November 1, 1993 among Auto Lease Finance, Inc. ("ALFI"), the Origination
Trustee and U.S. Bank, and that certain Amended and Restated Trust Agreement
dated as of June 1, 1994 among ALFI, ALF LP, the Origination Trustee and U.S.
Bank, pursuant to which ALF LP and the Origination Trustee formed World Omni LT,
an Alabama trust (the "Origination Trust"), for the purpose of taking
assignments and conveyances of, holding in trust and dealing in various Trust
Assets (as defined in the Origination Trust Agreement) in accordance with the
Origination Trust Agreement. ALFI and World Omni Financial Corp., a Florida
corporation ("WOFCO"), ALFI's parent, have entered into that certain Limited
Partnership Agreement dated as of June 1, 1994, as amended and restated pursuant
to that certain Amended and Restated Limited Partnership Agreement dated as of
July 1, 1994, pursuant to which ALF LP was formed and ALFI contributed to ALF LP
all of its right, title and interest in and to the Origination Trust.
B. On September 23, 1998, ALFI was merged with and into Auto Lease
Finance LLC ("ALF LLC"), a Delaware single member limited liability company the
sole member of which is WOFCO, pursuant to that certain Assignment of General
Partnership Interest and Amendment to Amended and Restated Limited Partnership
Agreement of Auto Lease Finance L.P. dated as of September 23, 1998 among WOFCO,
ALFI and ALF LLC and that certain Certificate of Merger dated September 23, 1998
filed by WOFCO with the Secretary of State for the State of Delaware whereby ALF
LLC succeeded to all of the rights and obligations of ALFI, including but not
limited to those as general partner of ALF LP, as reflected in the Amended and
Restated Certificate of Limited Partnership of ALF LP filed with the Delaware
Secretary of State as of September 23, 1998.
C. The Origination Trustee, on behalf of the Origination Trust, and
WOFCO (in its capacity as servicer, the "Servicer") also have entered into that
certain Second Amended and Restated Servicing Agreement dated as of July 1,
1994, as amended by that certain Amendment No. 1 to Second Amended and Restated
Servicing Agreement dated as of September 23, 1998 (as the same may be further
amended, supplemented or modified, the "Servicing Agreement"), amending and
restating that certain original Servicing Agreement dated as of November 1,
1993, and that certain Amended and Restated Servicing Agreement dated as of June
1, 1994, which provides for, among other things, the servicing of the Trust
Assets by the Servicer.
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D. Concurrently herewith, and as contemplated by the terms of the
Origination Trust Agreement, ALF LP, the Origination Trustee, U.S. Bank and ▇▇▇▇
▇▇ have entered into a Supplement 1999-A to Trust Agreement dated as of August
1, 1999 (the "1999-A SUBI Supplement") pursuant to which the Origination
Trustee, on behalf of the Origination Trust and at the direction of ALF LP, will
create and issue to ALF LP a special unit of beneficial interest in the
Origination Trust, or "SUBI" (as defined in the Origination Trust Agreement)
(such SUBI, the "1999-A SUBI"), whose beneficiaries generally will be entitled
to the net cash flow arising from, but only from, the related SUBI Portfolio (as
defined in the Origination Trust Agreement) (such SUBI Portfolio, the "1999-A
SUBI Portfolio"), which 1999-A SUBI will be evidenced by a SUBI Certificate (as
defined in the Origination Trust Agreement) representing a 100% beneficial
interest in the 1999-A SUBI (the "1999-A SUBI Certificate"), all as set forth in
the Origination Trust Agreement and the 1999-A SUBI Supplement.
E. Also concurrently herewith, and as contemplated by the terms of the
Servicing Agreement, the Origination Trustee, on behalf of the Origination
Trust, and the Servicer also have entered into a Supplement 1999-A to Servicing
Agreement dated as of August 1, 1999 (the "1999-A Servicing Supplement"),
pursuant to which the terms of the Servicing Agreement will be supplemented
insofar as they apply to the 1999-A SUBI Portfolio, providing for further
specific servicing obligations that will benefit the holder of the 1999-A SUBI
Certificate and the parties to the Securitized Financing (as defined in the
Origination Trust Agreement) contemplated by this Agreement.
F. Also concurrently herewith, ALF LP and the Transferor have entered
into that certain SUBI Certificate Purchase and Sale Agreement dated as of
August 1, 1999 (the "SUBI Certificate Agreement"), pursuant to which ALF LP sold
to the Transferor, without recourse, all of ALF LP's right, title and interest
in and to the 1999-A SUBI and the 1999-A SUBI Certificate, all monies due
thereon and paid thereon in respect thereof and the right to realize on any
property that may be deemed to secure the 1999-A SUBI, and all proceeds thereof,
all in consideration of the cash payment to ALF LP of an amount equal to the
Aggregate Net Investment Value (as defined below) of the 1999-A SUBI Portfolio
as of the Initial Cutoff Date (as defined in the 1999-A SUBI Supplement).
G. The Transferor and the Owner Trustee desire to enter into this
Agreement to create the Trust.
H. Also concurrently herewith, the Indenture Trustee and the Owner
Trustee are entering into that certain Indenture dated as of August 1, 1999 (the
"Indenture") pursuant to which, among other things, the Trust will issue the
Notes (as defined in the Indenture) and the Trust will grant a security interest
to the Indenture Trustee with respect to all of the Trust Estate (as defined
herein); and the Indenture Trustee is entering into this Agreement to
acknowledge the terms and conditions relative to the Notes.
I. The parties hereto desire, pursuant to this Agreement, to provide
for the issuance by the Trust of the Transferor Certificate (as defined herein)
and to provide for the exchange of the Transferor Certificate and the Notes for
the 1999-A SUBI Certificate in connection with a Securitized Financing (as
defined in the Origination Trust Agreement) by the Transferor.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE ONE. DEFINITIONS
Section 1.01. Definitions.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, (a) unless otherwise defined
herein, all capitalized terms used herein shall have the meanings attributed to
them by Section 0.01 of the Origination Trust Agreement, by Section 10.01 of the
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1999-A SUBI Supplement or Section 6.01 of the 1999-A Servicing Supplement, as
applicable, (b) the capitalized terms defined in this Agreement have the
meanings assigned to them in this Agreement and include (i) all genders and (ii)
the plural as well as the singular, (c) all references to words such as
"herein", "hereof" and the like shall refer to this Agreement as a whole and not
to any particular article or section within this Agreement, (d) the term
"include" and all variations thereon shall mean "include without limitation" and
(e) the term "or" shall include "and/or".
"Accelerated Principal Distribution Amount" has the meaning set forth
in Section 3.03(c)(ii).
"Additional Loss Lease" means a 1999-A Lease that has been sold or
otherwise disposed of to pay an Additional Loss Amount.
"Administrative Expense" means any reasonable administrative cost or
expense associated with the Indenture, the Notes, the Trust or the Origination
Trust, including reasonable fees and expenses of attorneys and accountants.
"Advance" means those advances required or permitted to be made by the
Servicer pursuant to Section 9.04 of the 1999-A Servicing Supplement.
"Aggregate Net Investment Value" means, as of any day, the sum of (i)
the aggregate of the Discounted Principal Balances of all 1999-A Leases at such
date, each such Discounted Principal Balance being derived from the Schedule of
Leases and Leased Vehicles as in effect on such date; provided that as of the
last day of any Collection Period, there shall be eliminated from the Schedule
of Leases and Leased Vehicles for the purpose of this definition (including,
without limitation, the determination at any subsequent time of the Aggregate
Net Investment Value as of the last day of any Collection Period) each 1999-A
Lease that became a Charged-off, Liquidated, Matured or Additional Loss Lease
before the end of such Collection Period, (ii) the aggregate of the Booked
Residual Values of those Leased Vehicles that have been added to Matured Leased
Vehicle Inventory within the three immediately preceding Collection Periods but
have not been sold or otherwise disposed of as of the last day of the most
recent Collection Period for no more than two full Collection Periods, each such
Booked Residual Value being derived from the Schedule of Leases and Leased
Vehicles as in effect on such date, and (iii) prior to the last Transfer Date,
the aggregate amount of Principal Collections (and amounts treated as Principal
Collections pursuant to the last sentence of Section 3.03(b)) that have not been
reinvested in additional 1999-A Leases and 1999-A Leased Vehicles pursuant to
Section 11.02 of the 1999-A SUBI Supplement.
"Aggregate Net Losses" means, with respect to a Collection Period, an
amount equal to the aggregate Discounted Principal Balances of all 1999-A Leases
that became Charged-off Leases during such Collection Period minus all Net
Repossessed Vehicle Proceeds and other Net Liquidation Proceeds collected during
such Collection Period with respect to Charged-off Leases.
"Agreement" means this Securitization Trust Agreement and all
amendments hereof and supplements hereto.
"ALFI" means Auto Lease Finance, Inc. and its successors.
"ALF LLC" means Auto Lease Finance LLC, a Delaware single member
limited liability company, the general partner of ALF LP.
"ALF LP" has the meaning set forth in Recital A.
"Alternate Reserve Fund Formula" means that formula pursuant to which
the Reserve Fund Cash Requirement is to be calculated if any Reserve Fund Test
is not satisfied as of any Distribution Date. Pursuant to the Alternate Reserve
Fund Formula, the Reserve Fund Cash Requirement shall equal two times the Base
Reserve Fund Formula, but which amount shall in no event be greater than
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the Note Balance on such Distribution Date (after giving effect to reductions in
the Note Balance on such Distribution Date).
"Amortization Date" means September 1, 2000.
"Amortization Period" means the period beginning with the day
immediately succeeding the last day of the Revolving Period and ending on the
day the Notes have been paid in full and all unpaid Class A-1 Uncovered Loss
Amounts, Class A-2 Uncovered Loss Amounts, Class A-3 Uncovered Loss Amounts,
Class A-4 Uncovered Loss Amounts, Class B Uncovered Loss Amounts and unpaid
Class B Note Principal Carryover Shortfalls have been paid in full, in each case
with accrued interest thereon, or the Trust otherwise terminates.
"Authorized Newspaper" means a newspaper of general circulation in the
Borough of Manhattan, The City of New York, printed in the English language and
customarily published on each Business Day, whether or not published on
Saturdays, Sundays and holidays.
"Base Reserve Fund Formula" means that formula pursuant to which the
Reserve Fund Cash Requirement is to be calculated if all Reserve Fund Tests are
satisfied as of any Distribution Date. Pursuant to the Base Reserve Fund Formula
the Reserve Fund Cash Requirement with respect to any Distribution Date will
equal the lesser of (i) the amount of the Reserve Fund Initial Deposit and (ii)
the Note Balance as of the related Distribution Date (after giving effect to
reductions in the Note Balance on such Distribution Date).
"Book-Entry Notes" means a beneficial interest in the Class A Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.10 of the Indenture.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in New York, New York, Palisades Park, New Jersey,
Chicago, Illinois, Wilmington, Delaware, Deerfield Beach, Florida, or Mobile,
Alabama are authorized or obligated by law, executive order or governmental
decree to be closed.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss. 3801 et seq.
"Capped Indenture Trustee Administrative Expenses" means, with respect
to any Distribution Date, the compensation of the Indenture Trustee pursuant to
Section 6.07 of the Indenture and those other Administrative Expenses with
respect to the Indenture and the Notes, including those due under Section 6.07
of the Indenture that, together with all such Administrative Expenses paid since
the beginning of the calendar year in which such Distribution Date occurs, do
not exceed $[__________] (or $[__________] in any year in which an Indenture
Event of Default occurs).
"Capped Owner Trustee Administrative Expenses" means, with respect to
any Distribution Date, the compensation of the Owner Trustee pursuant to Section
6.05 and those other Administrative Expenses with respect to the Trust,
including those due under Section 6.05, as are due on such Distribution Date
that, together with all such Administrative Expenses paid since the beginning of
the calendar year in which such Distribution Date occurs, do not exceed
$[__________].
"Certificate" means the Transferor Certificate.
"Certificateholder" means the Transferor.
"Certificate of Trust" means the Certificate of Trust in the form of
Exhibit B filed for the Trust pursuant to the Business Trust Statute.
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"Charged-off Amount" means, as of any Distribution Date, an amount
equal to the sum of the Discounted Principal Balances, as of the end of the
related Collection Period, of any Charged-off Leases that became Charged-off
Leases during that related Collection Period.
"Charge-off Rate" means, with respect to any Collection Period, a
percentage equivalent to a fraction, the numerator of which is the product of
(a) 12 and (b) the Aggregate Net Losses with respect to such Collection Period,
and the denominator of which is the quotient of (a) the Aggregate Net Investment
Value as of the last day of such Collection Period plus the Aggregate Net
Investment Value as of the last day of the immediately preceding Collection
Period, divided by (b) 2.
"Charge-off Rate Test" means that determination, made on each
Determination Date, of the average of the Charge-off Rates for the immediately
preceding three Collection Periods (or during the months of June, July and
August in respect of the September 1999 Determination Date, the months of July
and August 1999 and the September 1999 Collection Period in respect of the
October 1999 Determination Date, and the month of August 1999 and the September
and October 1999 Collection Periods in respect of the November 1999
Determination Date). The Charge-off Rate Test will be satisfied if such average
is [____]% or less.
"Class" means all Securities whose form is identical except for
variation in denomination, principal amount or owner.
"Class A Cap Rate" means [____]%.
"Class A Cap Receipt" shall mean, to the extent the following is a
positive number, an amount equal to the product of (i) One-Month LIBOR with
respect to the related Distribution Date minus the Class A Cap Rate, (ii) the
Class A Notional Amount and (iii) a fraction, the numerator of which is the
actual number of days from and including the prior Distribution Date (or, with
respect to the first Distribution Date, the actual number of days from the date
of issuance of the Class A Notes) to but excluding the related Distribution
Date, and the denominator of which is 360.
"Class A Cap Provider" means Credit Lyonnais New York Branch, a New
York licensed branch of Credit Lyonnais, S.A., a banking corporation organized
and existing under the laws of the Republic of France.
"Class A Interest Rate Cap Agreement" means that certain interest rate
cap agreement dated as of August [___], 1999 [and effective as of [_______]
[____]. 1999] by and between the Trust and the Class A Cap Provider.
"Class A Notes" means the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes.
"Class A Note Balance" means the sum of the Class A-1 Note Balance, the
Class A-2 Note Balance, Class A-3 Note Balance and the Class A-4 Note Balance.
"Class A Noteholder" means any Holder of a Class A-1 Note, Class A-2
Note, Class A-3 Note or Class A-4 Note.
"Class A Notional Amount" means the sum of the Class A-1 Notional
Amount, the Class A-2 Notional Amount, the Class A-3 Notional Amount and the
Class A-4 Notional Amount.
"Class A Percentage" means the Class A Note Balance immediately after
the Class A-3 Notes have been paid in full as a percentage of the Note Balance
at such time.
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"Class A-1 Allocation Percentage" means, as of any Distribution Date,
the Class A-1 Note Balance as of the last day of the related Collection Period
as a percentage of the Note Balance as of such last day.
"Class A-1 Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-1 Principal Distributable Amount and
the Class A-1 Interest Distributable Amount.
"Class A-1 Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class A-1 Interest
Distributable Amount for such Distribution Date plus any outstanding Class A-1
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class A-1 Interest Carryover Shortfall, to the
extent permitted by law, at the Class A-1 Note Rate from such immediately
preceding Distribution Date to but not including the current Distribution Date,
over (ii) the amount of interest distributed to Class A-1 Noteholders on such
current Distribution Date.
"Class A-1 Interest Distributable Amount" means, with respect to any
Distribution Date, the product of (i) the Class A-1 Note Rate (ii) the Class A-1
Note Balance as of the immediately preceding Distribution Date (after giving
effect to changes in the Class A-1 Note Balance made on such immediately
preceding Distribution Date) and (iii) a fraction, the numerator of which is the
actual number of days from and including the prior Distribution Date (or, in the
case of the first Distribution Date, the Closing Date) to but excluding the
related Distribution Date, and the denominator of which is 360.
"Class A-1 Note" means one of the Notes executed by the Owner Trustee
on behalf of the Trust and authenticated by the Indenture Trustee in
substantially the form set forth in Exhibit A to the Indenture.
"Class A-1 Note Balance" shall initially equal the Initial Class A-1
Note Balance and, on any date, shall equal the Initial Class A-1 Note Balance,
reduced by the sum of (i) all amounts distributed to Class A-1 Noteholders and
allocable to principal on or prior to such date, and (ii) the aggregate amount
of any Class A-1 Uncovered Loss Amounts.
"Class A-1 Note Factor" means, with respect to any Distribution Date, a
seven-digit decimal figure equal to the Class A-1 Note Balance as of the close
of business on such Distribution Date (after giving effect to all changes in the
Class A-1 Note Balance made on that date) divided by the Initial Class A-1 Note
Balance.
"Class A-1 Noteholder" means any Holder of a Class A-1 Note.
"Class A-1 Note Rate" means One Month LIBOR plus [_____]%.
"Class A-1 Notional Amount" shall mean, as determined on each Deposit
Date, the Class A-1 Note Balance as of close of business on the preceding
Distribution Date, provided, however, with respect to the first Deposit Date,
the Class A-1 Notional Amount will be equal to the Initial Class A-1 Note
Balance.
"Class A-1 Principal Distributable Amount" means, with respect to any
Distribution Date related to a Collection Period in the Amortization Period, the
amount (if any) that is distributable to the Class A-1 Noteholders pursuant to
Section 3.03(d).
"Class A-1 Uncovered Loss Amounts" for any Distribution Date will be
(i) until the Class B Note Balance has been reduced to zero, zero; (ii) after
the Class B Note Balance has been reduced to zero and until the Class A-1 Note
Balance has been reduced to zero, the Class A-1 Allocation Percentage of any
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Uncovered Loss Amounts for that Distribution Date; and (iii) after the Class A-1
Note Balance has been reduced to zero, zero.
"Class A-1 Uncovered Loss Interest Amount" means, with respect to any
Distribution Date, the aggregate amount of accrued and unpaid interest (at the
Class A-1 Note Rate) on the aggregate amount of unreimbursed Class A-1 Uncovered
Loss Amounts from previous Distribution Dates.
"Class A-2 Allocation Percentage" means, as of any Distribution Date,
the Class A-2 Note Balance as of the last day of the related Collection Period
as a percentage of the then Note Balance as of such last day.
"Class A-2 Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-2 Principal Distributable Amount and
the Class A-2 Interest Distributable Amount.
"Class A-2 Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class A-2 Interest
Distributable Amount for such Distribution Date plus any outstanding Class A-2
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class A-2 Interest Carryover Shortfall, to the
extent permitted by law, at the Class A-2 Note Rate from such immediately
preceding Distribution Date to but not including the current Distribution Date,
over (ii) the amount of interest distributed to Class A-2 Noteholders on such
current Distribution Date.
"Class A-2 Interest Distributable Amount" means, with respect to any
Distribution Date, the product of (i) the Class A-2 Note Rate (ii) the Class A-2
Note Balance as of the immediately preceding Distribution Date (after giving
effect to changes in the Class A-2 Note Balance made on such immediately
preceding Distribution Date) and (iii) a fraction, the numerator of which is the
actual number of days from and including the prior Distribution Date (or, in the
case of the first Distribution Date, the Closing Date) to but excluding the
related Distribution Date, and the denominator of which is 360.
"Class A-2 Note" means one of the Notes executed by the Owner Trustee
on behalf of the Trust and authenticated by the Indenture Trustee in
substantially the form set forth in Exhibit B to the Indenture.
"Class A-2 Note Balance" shall initially equal the Initial Class A-2
Note Balance and, on any date, shall equal the Initial Class A-2 Note Balance,
reduced by the sum of (i) all amounts distributed to Class A-2 Noteholders and
allocable to principal on or prior to such date, and (ii) the aggregate amount
of any Class A-2 Uncovered Loss Amounts.
"Class A-2 Note Factor" means, with respect to any Distribution Date, a
seven-digit decimal figure equal to the Class A-2 Note Balance as of the close
of business on such Distribution Date (after giving effect to all changes in the
Class A-2 Note Balance made on that date) divided by the Initial Class A-2 Note
Balance.
"Class A-2 Noteholder" means any Holder of a Class A-2 Note.
"Class A-2 Note Rate" means One Month LIBOR plus [_____]%.
"Class A-2 Notional Amount" shall mean, as determined on each Deposit
Date, the Class A-2 Note Balance as of close of business on the preceding
Distribution Date, provided, however, with respect to the first Deposit Date,
the Class A-2 Notional Amount will be equal to the Initial Class A-2 Note
Balance.
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"Class A-2 Principal Distributable Amount" means, with respect to any
Distribution Date related to a Collection Period in the Amortization Period, the
amount (if any) that is distributable to the Class A-2 Noteholders pursuant to
Section 3.03(d).
"Class A-2 Uncovered Loss Amounts" for any Distribution Date will be
(i) until the Class B Note Balance has been reduced to zero, zero; (ii) after
the Class B Note Balance has been reduced to zero and until the Class A-2 Note
Balance has been reduced to zero, the Class A-2 Allocation Percentage of any
Uncovered Loss Amounts for that Distribution Date; and (iii) after the Class A-2
Note Balance has been reduced to zero, zero.
"Class A-2 Uncovered Loss Interest Amount" means, with respect to any
Distribution Date, the aggregate amount of accrued and unpaid interest (at the
Class A-2 Note Rate) on the aggregate amount of unreimbursed Class A-2 Uncovered
Loss Amounts from previous Distribution Dates.
"Class A-3 Allocation Percentage" means, as of any Distribution Date,
the Class A-3 Note Balance as of the last day of the related Collection Period
as a percentage of the then Note Balance as of such last day.
"Class A-3 Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-3 Principal Distributable Amount and
the Class A-3 Interest Distributable Amount.
"Class A-3 Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class A-3 Interest
Distributable Amount for such Distribution Date plus any outstanding Class A-3
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class A-3 Interest Carryover Shortfall, to the
extent permitted by law, at the Class A-3 Note Rate from such immediately
preceding Distribution Date to but not including the current Distribution Date,
over (ii) the amount of interest distributed to Class A-3 Noteholders on such
current Distribution Date.
"Class A-3 Interest Distributable Amount" means, with respect to any
Distribution Date, the product of (i) the Class A-3 Note Rate (ii) the Class A-3
Note Balance as of the immediately preceding Distribution Date (after giving
effect to changes in the Class A-3 Note Balance made on such immediately
preceding Distribution Date) and (iii) a fraction, the numerator of which is the
actual number of days from and including the prior Distribution Date (or, in the
case of the first Distribution Date, the Closing Date) to but excluding the
related Distribution Date, and the denominator of which is 360.
"Class A-3 Note" means one of the Notes executed by the Owner Trustee
on behalf of the Trust and authenticated by the Indenture Trustee in
substantially the form set forth in Exhibit C to the Indenture.
"Class A-3 Note Balance" shall initially equal the Initial Class A-3
Note Balance and, on any date, shall equal the Initial Class A-3 Note Balance,
reduced by the sum of (i) all amounts distributed to Class A-3 Noteholders and
allocable to principal on or prior to such date, and (ii) the aggregate amount
of any Class A-3 Uncovered Loss Amounts.
"Class A-3 Note Factor" means, with respect to any Distribution Date, a
seven-digit decimal figure equal to the Class A-3 Note Balance as of the close
of business on such Distribution Date (after giving effect to all changes in the
Class A-3 Note Balance made on that date) divided by the Initial Class A-3 Note
Balance.
"Class A-3 Noteholder" means any Holder of a Class A-3 Note.
"Class A-3 Note Rate" means One Month LIBOR plus [_____]%.
8
"Class A-3 Notional Amount" shall mean, as determined on each Deposit
Date, the Class A-3 Note Balance as of close of business on the preceding
Distribution Date, provided, however, with respect to the first Deposit Date,
the Class A-3 Notional Amount will be equal to the Initial Class A-3 Note
Balance.
"Class A-3 Principal Distributable Amount" means, with respect to any
Distribution Date related to a Collection Period in the Amortization Period, the
amount (if any) that is distributable to the Class A-3 Noteholders pursuant to
Section 3.03(d).
"Class A-3 Uncovered Loss Amounts" for any Distribution Date will be
(i) until the Class B Note Balance has been reduced to zero, zero; (ii) after
the Class B Note Balance has been reduced to zero and until the Class A-3 Note
Balance has been reduced to zero, the Class A-3 Allocation Percentage of any
Uncovered Loss Amounts for that Distribution Date; and (iii) after the Class A-3
Note Balance has been reduced to zero, zero.
"Class A-3 Uncovered Loss Interest Amount" means, with respect to any
Distribution Date, the aggregate amount of accrued and unpaid interest (at the
Class A-3 Note Rate) on the aggregate amount of unreimbursed Class A-3 Uncovered
Loss Amounts from previous Distribution Dates.
"Class A-4 Allocation Percentage" means, as of any Distribution Date,
the Class A-4 Note Balance as of the last day of the related Collection Period
as a percentage of the then Note Balance as of such last day.
"Class A-4 Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-4 Principal Distributable Amount and
the Class A-4 Interest Distributable Amount.
"Class A-4 Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class A-4 Interest
Distributable Amount for such Distribution Date plus any outstanding Class A-4
Interest Carryover Shortfall from the immediately preceding Distribution Date
plus interest on such outstanding Class A-4 Interest Carryover Shortfall, to the
extent permitted by law, at the Class A-4 Note Rate from such immediately
preceding Distribution Date to but not including the current Distribution Date,
over (ii) the amount of interest distributed to Class A-4 Noteholders on such
current Distribution Date.
"Class A-4 Interest Distributable Amount" means, with respect to any
Distribution Date, the product of (i) the Class A-4 Note Rate (ii) the Class A-4
Note Balance as of the immediately preceding Distribution Date (after giving
effect to changes in the Class A-4 Note Balance made on such immediately
preceding Distribution Date) and (iii) a fraction, the numerator of which is the
actual number of days from and including the prior Distribution Date (or, in the
case of the first Distribution Date, the Closing Date) to but excluding the
related Distribution Date, and the denominator of which is 360.
"Class A-4 Note" means one of the Notes executed by the Owner Trustee
on behalf of the Trust and authenticated by the Indenture Trustee in
substantially the form set forth in Exhibit D to the Indenture.
"Class A-4 Note Balance" shall initially equal the Initial Class A-4
Note Balance and, on any date, shall equal the Initial Class A-4 Note Balance,
reduced by the sum of (i) all amounts distributed to Class A-4 Noteholders and
allocable to principal on or prior to such date, and (ii) the aggregate amount
of any Class A-4 Uncovered Loss Amounts.
"Class A-4 Note Factor" means, with respect to any Distribution Date, a
seven-digit decimal figure equal to the Class A-4 Note Balance as of the close
of business on such Distribution Date (after
9
giving effect to all changes in the Class A-4 Note Balance made on that date)
divided by the Initial Class A-4 Note Balance.
"Class A-4 Noteholder" means any Holder of a Class A-4 Note.
"Class A-4 Note Rate" means One Month LIBOR plus [_____]%.
"Class A-4 Notional Amount" shall mean, as determined on each Deposit
Date, the Class A-4 Note Balance as of close of business on the preceding
Distribution Date, provided, however, with respect to the first Deposit Date,
the Class A-4 Notional Amount will be equal to the Initial Class A-4 Note
Balance.
"Class A-4 Principal Distributable Amount" means, with respect to any
Distribution Date related to a Collection Period in the Amortization Period, the
amount (if any) that is distributable to the Class A-4 Noteholders pursuant to
Section 3.03(d).
"Class A-4 Uncovered Loss Amounts" for any Distribution Date will be
(i) until the Class B Note Balance has been reduced to zero, zero; (ii) after
the Class B Note Balance has been reduced to zero and until the Class A-4 Note
Balance has been reduced to zero, the Class A- Allocation Percentage of any
Uncovered Loss Amounts for that Distribution Date; and (iii) after the Class A-4
Note Balance has been reduced to zero, zero.
"Class A-4 Uncovered Loss Interest Amount" means, with respect to any
Distribution Date, the aggregate amount of accrued and unpaid interest (at the
Class A-4 Note Rate) on the aggregate amount of unreimbursed Class A-4 Uncovered
Loss Amounts from previous Distribution Dates.
"Class B Allocation Percentage" means, as of any Distribution Date, the
Class B Note Balance as of the last day of the related Collection Period as a
percentage of the then Note Balance as of such last day.
"Class B Cap Provider" means Credit Lyonnais New York Branch, a New
York licensed branch of Credit Lyonnais, S.A., a banking corporation organized
and existing under the laws of the Republic of France.
"Class B Cap Rate" means [____]%.
"Class B Cap Receipt" shall mean, to the extent the following is a
positive number, an amount equal to the product of (i) One-Month LIBOR with
respect to the related Distribution Date minus the Class B Cap Rate, (ii) the
Class B Notional Amount and (iii) a fraction, the numerator of which is the
actual number of days from and including the prior Distribution Date (or, with
respect to the first Distribution Date, the actual number of days from the date
of issuance of the Class B Notes) to but excluding the related Distribution
Date, and the denominator of which is 360.
"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 Fixed Interest Carryover Shortfall" means, for any
Distribution Date, an amount, if positive, equal to (1) the sum of (A) the
excess, if any of (i) an amount equal to the amount described in subclause (2)
of the definition of Class B Note Rate Cap for the previous Distribution Date
over (ii) the interest paid to the Class B Noteholders on such previous
Distribution Date and (B) the Class B Fixed Interest Carryover Shortfall
immediately following the second preceding Distribution Date less (2)
reimbursement of Class B Interest Carryover Shortfalls on the previous
Distribution Date.
10
"Class B Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of (i) the Class B Interest Distributable
Amount for such Distribution Date plus any outstanding Class B Interest
Carryover Shortfall from the immediately preceding Distribution Date plus
interest on such outstanding Class B Interest Carryover Shortfall, to the extent
permitted by law, at the Class B Note Rate from such immediately preceding
Distribution Date to but not including the current Distribution Date over (ii)
the amount of interest distributed to Class B Noteholders on such current
Distribution Date.
"Class B Interest Distributable Amount" means, with respect to any
Distribution Date, the product of (i) the Class B Note Rate (ii) the Class B
Note Balance as of the immediately preceding Distribution Date (after giving
effect to changes in the Class B Note Balance made on such immediately preceding
Distribution Date) and (iii) a fraction, the numerator of which is the actual
number of days from and including the prior Distribution Date (or, in the case
of the first Distribution Date, the Closing Date) to but excluding the related
Distribution Date, and the denominator of which is 360.
"Class B Interest Rate Cap Agreement" means that certain interest rate
cap agreement dated as of August [___], 1999 [and effective as of [_______]
[____]. 1999] by and between the Trust and the Class B Cap Provider.
"Class B Note" means any one of the Notes executed by the Owner Trustee
on behalf of the Trust and authenticated by the Indenture Trustee in
substantially the form set forth in Exhibit E to the Indenture.
"Class B Note Balance" shall initially equal the Initial Class B Note
Balance and, on any date, shall equal the Initial Class B Note Balance, reduced
by the sum of (i) all amounts distributed to Class B Noteholders and allocable
to principal on or prior to such date, (ii) the aggregate amount of any Class B
Uncovered Loss Amounts, and (iii) the aggregate amount of any Class B Note
Principal Carryover Shortfalls.
"Class B Note Rate Cap" means, the sum of (1) the Class B Fixed
Interest Carryover Shortfall and (2) either (x) if a Class B Cap Receipt was
received in full on the Deposit Date preceding the related Distribution Date,
the Class B Interest Distributable Amount, or (y) if a Class B Cap Receipt was
due but not paid in full on the Deposit Date prior to the related Distribution
Date, the sum of (i) the product of (A) one-twelfth (or, in the case of the
first Distribution Date, [__]/360) of [_____]% and (B) the Class B Note Balance
as of the immediately preceding Distribution Date (after giving effect to
changes in the Class B Note Balance made on such immediately preceding
Distribution Date) and (ii) any amounts received in partial payment of the Class
B Cap Receipt for the related Distribution Date.
"Class B Note Factor" means, with respect to any Distribution Date, a
seven-digit decimal figure equal to the Class B Note Balance as of the close of
business on such Distribution Date (after giving effect to all changes in the
Class B Note Balance made on that date) divided by the Initial Class B Note
Balance.
"Class B Note Principal Carryover Shortfall" means, with respect to any
Distribution Date, the amount that otherwise would have been made available for
reinvestment in additional 1999-A SUBI Assets pursuant to Section 11.02 of the
1999-A SUBI Supplement (if on a Distribution Date related to a Collection Period
in the Revolving Period) or distributed to the Class B Noteholders (if on a
Distribution Date related to a Collection Period in the Amortization Period), in
each case in respect of Principal Collections pursuant to Section 3.03(d), but
instead is applied as set forth in clauses (iii), (vii) and (viii) of Section
3.03(b) pursuant to Section 3.03(e).
"Class B Note Principal Carryover Shortfall Interest Amount" means,
with respect to any Distribution Date, the aggregate amount of accrued and
compounded interest (at the Class B Note Rate)
11
on the aggregate amount of unreimbursed Class B Note Principal Carryover
Shortfall as of the immediately preceding Distribution Date.
"Class B Note Rate" means One Month LIBOR plus [_____]%.
"Class B Noteholder" means any Holder of a Class B Note.
"Class B Notional Amount" shall mean, as determined on each Deposit
Date, the Class B Note Balance as of close of business on the preceding
Distribution Date, provided, however, with respect to the first Deposit Date,
the Class B Notional Amount will be equal to the Initial Class B Note Balance.
"Class B Percentage" means the Class B Note Balance immediately after
the Class A-3 Notes have been paid in full as a percentage of the Note Balance
at such time.
"Class B Principal Distributable Amount" means, with respect to any
Distribution Date related to a Collection Period in the Amortization Period, the
amount (if any) that is distributable to the Class B Noteholders pursuant to
Section 3.03(d).
"Class B Uncovered Loss Amounts" for any Distribution Date will be (i)
until the Class B Note Balance has been reduced to zero, any Uncovered Loss
Amounts for that Distribution Date; and (ii) after the Class B Note Balance has
been reduced to zero, zero.
"Class B Uncovered Loss Interest Amount" means, with respect to any
Distribution Date, the aggregate amount of accrued and unpaid interest (at the
Class B Note Rate) on the aggregate amount of unreimbursed Class B Uncovered
Loss Amounts from previous Distribution Dates.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"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" means September [__], 1999.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Period" shall have the meaning set forth in the 1999-A SUBI
Supplement.
"Commission" means the Securities and Exchange Commission, and any
successor thereto.
"Corporate Trust Office" means, (a) with respect to the Indenture
Trustee, as set forth in the Indenture, and (b) with respect to the Owner
Trustee, the Corporate Trust Department of the Owner Trustee located at ▇▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address
as the Owner Trustee may designate from time to time by notice to the Indenture
Trustee, the Transferor, the Servicer and the Trust, or the principal corporate
trust office of any successor Owner Trustee.
"Covered Loss Amount" means (A) for any Distribution Date on or prior
to the Distribution Date on which the Class A Note Balance is reduced to zero,
the lesser of (i) the Investor Percentage of Loss Amounts for such Distribution
Date and (ii) the amounts actually available for distribution under clause (vii)
of Section 3.03(b) and (B) for any Distribution Date after the Distribution Date
on which the Class A Note Balance is reduced to zero, zero.
12
"Current Lease" means each 1999-A Lease that is not a Charged-off
Lease, a Matured Lease, a Liquidated Lease or an Additional Loss Lease.
"Definitive Notes" shall have the meaning specified in Section 2.10 of
the Indenture.
"Delinquency Rate" means, with respect to any Collection Period, the
percentage equivalent to a fraction, the numerator of which is the number of
outstanding 1999-A Leases as to which, as of the last day of such Collection
Period, all or any part of a Monthly Lease Payment in excess of $40 is unpaid
(including without limitation because of a check being returned for insufficient
funds) 61 days or more after its Due Date (other than a 1999-A Lease as to which
an extension has been granted with respect to such Due Date by the Servicer
pursuant to clause (ii) of Section 2.02(b) of the Servicing Agreement and
Section 9.02(a) of the 1999-A Servicing Supplement), whether or not (a) the
related 1999-A Leased Vehicle has been repossessed (or the process of
repossession has been commenced) but has not yet been sold or otherwise disposed
of during such Collection Period, or (b) the related Obligor is the subject of
bankruptcy or similar proceedings, and the denominator of which is the aggregate
number of Current Leases on the last day of such Collection Period.
"Delinquency Rate Test" means that determination, made on each
Determination Date, of the average of the Delinquency Rates for the three
immediately preceding Collection Periods (or during the months of June, July and
August 1999 in respect of the September 1999 Determination Date, during the
months of July and August 1999 and the September 1999 Collection Period in
respect of the October 1999 Determination Date and the month of August 1999 and
the September and October 1999 Collection Periods in respect of the November
1999 Determination Date). The Delinquency Rate Test will be satisfied if such
average is [____]% or less.
"Deposit Date" shall have the meaning set forth in the 1999-A SUBI
Supplement.
"Designated Maturity" shall mean, for any LIBOR Determination Date, one
month.
"Determination Date" means, with respect to any Distribution Date, the
second Business Day prior to such Distribution Date.
"Distribution Account" means the account or accounts designated as such
and established and maintained pursuant to Section 3.01.
"Distribution Date" means, with respect to a Collection Period, the
fifteenth day of the following month, or if that day is not a Business Day, the
next Business Day, beginning with September 15, 1999.
"Downgrade Reserve Fund Formula" means the greatest amount that any
Rating Agency shall require for calculation of the Reserve Fund Cash Requirement
in order to maintain its then-current rating on any Class of Notes.
"Downgrade Reserve Fund Supplemental Requirement" means the greatest
amount that any Rating Agency shall require to be deposited into the Reserve
Fund in order to maintain its then-current ratings on any Class of Notes.
"Downgrade Trigger Event" means that the RV Insurer's claims paying
ability is downgraded to "Aa3" or lower by ▇▇▇▇▇'▇, below "AAA" by Standard &
Poors or (if the RV Insurer's claims paying ability is rated by Fitch) below
"AAA" by Fitch.
"Early Amortization Event" has the meaning set forth in Section 8.01.
"Early Termination Amount" means, as of any Distribution Date, an
amount equal to (i) the sum of the Discounted Principal Balances, as of the end
of the related Collection Period, of any Early Termination Leases that became
13
Early Termination Leases during that related Collection Period, such Discounted
Principal Balances reflecting all payments of (or in lieu of) Monthly Lease
Payments other than non-cash items, less (ii) the Net Liquidation Proceeds
arising from payments made in connection with the realization of the Booked
Residual Values (and the retention by Lessees or Lessors) of the related 1999-A
Leased Vehicles, including any charges for excess mileage and excess wear and
use, but excluding payments in the form of non-cash items.
"Entitlement Holder" has the meaning set forth in Section 8-102(a)(7)
of the UCC.
"Entitlement Orders" has the meaning set forth in Section 8-102(a)(8)
of the UCC.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Compliance Test" means the timely, true and accurate
certification, on or before each Determination Date, by the Servicer to the
Indenture Trustee and each Rating Agency to the effect set forth in Section
10.03(c) of the 1999-A Servicing Supplement.
"Excess Collections" means, with respect to any Distribution Date, the
remaining amount on deposit in the Distribution Account in respect of such
Distribution Date after all distributions pursuant to Section 3.03(b) have been
made, net of any amount required to maintain the Distribution Account in good
standing.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Final Scheduled Maturity Date" means, with respect to the Class A
Notes, the [__________] [200_] Distribution Date and, with respect to the Class
B Notes, the [__________] [200_] Distribution Date.
"Financial Intermediary" means a financial intermediary, as such term
is defined in Section 8-313(4) of the UCC.
"Fitch" means Fitch IBCA, Inc., and its successors.
"Flow-Through Entity" has the meaning set forth in Section 2.04 of the
Indenture.
"Holder" of a Note or "Noteholder" means the Person in whose name such
Note is registered in the Note Register, except that, solely for the purposes of
giving any consent, waiver, request or demand pursuant to this Agreement, the
interest evidenced by any Note registered in the name of the Transferor, ALF LP
or WOFCO, or any Person controlling, controlled by or under common control with
the Transferor, ALF LP or WOFCO, shall not be taken into account in determining
whether the requisite percentage necessary to effect any such consent, waiver,
request or demand shall have been obtained. "Holder" of the Transferor
Certificate means the Transferor.
"Indenture" has the meaning set forth in Recital H.
"Indenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Indenture Trustee" means the Person acting as the Indenture Trustee
under the Indenture, its successor in interest, and any successor trustee
appointed pursuant to the Indenture.
"Independent Director" means a director of the general partner of the
Transferor who shall at no time be (i) a director, officer, employee or former
employee of any Affiliate of the Transferor, (ii) a natural person related to
any director, officer, employee or former employee of any Affiliate, (iii) a
holder (directly or indirectly) of any voting securities of any Affiliate, or
(iv) a natural person related to a holder (directly or indirectly) of any voting
14
securities of any Affiliate. For these purposes, "Affiliate" shall mean any
entity other than the Transferor or any similarly organized special purpose
finance subsidiary of an Affiliate (i) which owns beneficially, directly or
indirectly, more than 10% of the outstanding shares of the common stock or
partnership interests of the Transferor, (ii) which is in control of the
Transferor, as currently defined under ss. 230.405 of the Rules and Regulations
of the Commission, 17 C.F.R. ss. 230.405, (iii) of which 10% or more of the
outstanding shares of its common stock or partnership interests are owned
beneficially, directly or indirectly, by any entity described in clause (i) or
(ii) above, or (iv) which is controlled by an entity described in clause (i) or
(ii) above, as currently defined under ss. 230.405 of the Rules and Regulations
of the Commission, 17 C.F.R. ss. 230.405.
"Indorsement" has the meaning set forth in Section 8-304 of the UCC.
"Initial Class A Note Balance" means the sum of the Initial Class A-1
Note Balance, the Initial Class A-2 Note Balance, the Initial Class A-3 Note
Balance and the Initial Class A-4 Note Balance.
"Initial Class A-1 Note Balance" means $[__________].
"Initial Class A-2 Note Balance" means $[__________].
"Initial Class A-3 Note Balance" means $[__________].
"Initial Class A-4 Note Balance" means $[__________].
"Initial Class B Note Balance" means $[__________].
"Initial Note Balance" means the sum of the Initial Class A Note
Balance and the Initial Class B Note Balance.
"Insurance Policy" means, with respect to a 1999-A Lease, 1999-A Leased
Vehicle or Obligor under a 1999-A Lease, any policy of comprehensive, collision,
public liability, physical damage, personal liability, credit health or
accident, credit life or employment insurance, or any other form of insurance.
"Insured Residual Value Loss Amount" means, as of any Distribution
Date, the lesser of: (i) the product of (A) the Investor Percentage with respect
to Loss Amounts for the related Collection Period, and (B) the Residual Value
Loss Amount incurred during such Collection Period; and (ii) the shortfall if
any, described in clause (ii) of Section 3.03(e).
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Investor Percentage" means, with respect to any Collection Period,
(a) as used with respect to Interest Collections, Covered Loss
Amounts, Uncovered Loss Amounts, Loss Amounts, Capped Indenture Trustee
Administrative Expenses and Capped Owner Trustee Administrative Expenses, the
percentage equivalent of a fraction (not to exceed 100%), the numerator of which
is the Note Balance as of the last day of the immediately preceding Collection
Period (or, in the case of the first Collection Period, the Initial Note
Balance), and the denominator of which is the Aggregate Net Investment Value as
of the last day of the immediately preceding Collection Period (or, in the case
of the first Collection Period, the Initial Cutoff Date); and
(b) as used with respect to Principal Collections allocable to
the 1999-A SUBI Interest, the percentage equivalent of a fraction (not to exceed
100%), the numerator of which is the Note Balance and the denominator of which
is the Aggregate Net Investment Value, each as of the last day of the last full
Collection Period preceding the first to occur of the Amortization Date or any
Early Amortization Event.
15
"LIBOR Determination Date" means the second business day prior to the
preceding Distribution Date (or, in the case of the first Distribution Date, the
second business day prior to the Closing Date). For purposes of this definition,
"business day" shall mean any day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency deposits)
in London, England.
"Liquidated Lease" means a 1999-A Lease that (a) has been the subject
of a Prepayment in full, or (b) has been paid in full, regardless of whether all
or any part of such payment has been made by the Obligor under the related
1999-A Lease, the Servicer pursuant to the Servicing Agreement or 1999-A
Servicing Supplement, an insurer pursuant to an Insurance Policy or the Residual
Value Insurance Policy or otherwise.
"Liquidation Expenses" means reasonable out-of-pocket expenses incurred
by the Servicer in connection with the realization of the full amounts due or to
become due under any 1999-A Lease, including expenses incurred in connection
with the repossession of any 1999-A Leased Vehicle, the sale or other
disposition of a 1999-A Leased Vehicle, whether upon repossession or upon return
of a 1999-A Leased Vehicle related to a Matured Lease, any collection effort
(whether or not resulting in a lawsuit against the Obligor under such 1999-A
Lease) or any application for Insurance Proceeds.
"Loss Amount" means, with respect to any Distribution Date, an amount
equal to the sum of the Charged-off Amount, the Residual Value Loss Amount and
the Additional Loss Amount, in each case for the related Collection Period.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and its successors.
"1999-A Servicing Supplement" has the meaning set forth in Recital E.
"1999-A SUBI" has the meaning set forth in Recital D.
"1999-A SUBI Certificate" has the meaning set forth in Recital D.
"1999-A SUBI Interest" has the meaning set forth in Section 2.02.
"1999-A SUBI Portfolio" has the meaning set forth in Recital D.
"1999-A SUBI Supplement" has the meaning set forth in Recital D.
"Note Balance" initially means the Initial Note Balance and, as of any
date, means the sum of the Class A Note Balance and the Class B Note Balance as
of the close of business on such date, after giving effect to any changes
therein on such date.
"Noteholder" means the Holder of a Note.
"Note Owner" means, with respect to a Book-Entry Note, the Person who
is the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with such Clearing
Agency (directly or as an indirect participant in accordance with the rules of
such Clearing Agency) and shall mean, with respect to a Definitive Note, the
related Noteholder.
"Note Rate" means the Class A-1 Note Rate, the Class A-2 Note Rate, the
Class A-3 Note Rate, the Class A-4 Note Rate or the Class B Note Rate, as the
case may be.
"Note Register" means the register maintained pursuant to the
Indenture.
"Notice of Adverse Claim" has the meaning set forth in Section
8-102(a)(1) and 8-105 of the UCC.
16
"Officer's Certificate" means a certificate signed by the President,
any Vice President, the Treasurer or any Assistant Treasurer, the Secretary or
any Assistant Secretary of the general partner of the Transferor or the
Servicer, as the case may be, and delivered to the Indenture Trustee or the
Owner Trustee, as applicable.
"One Month LIBOR" means, as of any LIBOR Determination Date, the rate
for deposits in U.S. Dollars for a period of the Designated Maturity (commencing
on the previous Distribution Date) which appears on the Telerate page 3750 as of
11:00 a.m., London time, on such date. If such rate does not appear on Telerate
page 3750, the rate for that day will be determined on the basis of the rates at
which deposits in U.S. Dollars are offered by the Reference Banks at
approximately 11:00 a.m., London time, on that day to prime banks in the London
interbank market for a period of the Designated Maturity (commencing on the
previous Distribution Date). The Servicer will request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that day will be the
arithmetic mean of the quotations. If fewer than two quotations are provided as
requested, the rate for that day will be the arithmetic mean of the rates quoted
by major banks in New York City, selected by the Servicer, at approximately
11:00 a.m., New York time, on that day for loans in U.S. Dollars to leading
European banks for a period of the Designated Maturity (commencing on the
previous Distribution Date).
"Opinion of Counsel" means a written opinion of counsel (who, in the
case of counsel to the Transferor or the Servicer, may be an employee of or
outside counsel to the Transferor or the Servicer), which counsel, in the case
of an opinion delivered to the Indenture Trustee or the Owner Trustee,
respectively, shall be reasonably acceptable to such Trustee.
"Origination Trust" has the meaning set forth in Recital A.
"Origination Trust Agreement" has the meaning set forth in Recital A.
"Origination Trustee" has the meaning set forth in Recital A.
"Outstanding Advances" means, with respect to a Distribution Date, the
sum of all Advances made as of or prior to such date minus all payments or
collections as of or prior to such date that are specified in Section 9.02(g) of
the 1999-A Servicing Supplement as applied to reimburse such Advance as are
unreimbursed or are Nonrecoverable Advances.
"Owner Trustee" means the Person acting not in its individual capacity
but solely as Owner Trustee on behalf of the Trust under this Agreement, its
successor in interest, and any successor trustee appointed pursuant to Section
6.08.
"Percentage Interest" means, as to any Note, the percentage obtained by
dividing the outstanding principal balance of such Note by the Note Balance or
by the Class A Note Balance, the Class A-1 Note Balance, the Class A-2 Note
Balance, the Class A-3 Note Balance, the Class A-4 Note Balance or the Class B
Note Balance, as the context may require; provided, however, that where the
Percentage Interest is relevant in determining whether the vote of the requisite
percentage of Noteholders necessary to effect any consent, waiver, request or
demand shall have been obtained, the aggregate Percentage Interest shall be
deemed to be reduced by the amount equal to the Percentage Interest (without
giving effect to this provision) represented by the interests evidenced by any
such Note that is registered in the name of the Transferor, WOFCO or any Person
controlling, controlled by or under common control with the Transferor or WOFCO.
"Permitted Investments" means any one or more of the following
instruments, obligations or securities, in each case with a remaining term to
maturity of no more than one year:
17
(a)(i) direct obligations of, and obligations guaranteed as to
full and timely payment of principal and interest by, the United States or any
agency or instrumentality of the United States the obligations of which are
backed by the full faith and credit of the United States (other than the
Government National Mortgage Association), and (ii) direct obligations of, or
obligations fully guaranteed by, the Federal National Mortgage Association or
any State then rated with the highest available credit rating of Moody's,
Standard & Poor's and (if rated by Fitch) Fitch, for such obligations, which
obligations are, at the time of investment, otherwise acceptable to each Rating
Agency for securities having a rating at least equivalent to the rating of the
Class A Notes at the Closing Date;
(b) certificates of deposit, demand or time deposits of,
bankers' acceptances issued by, or federal funds sold by any depository
institution or trust company (including the Indenture Trustee or Chase Manhattan
Bank Delaware or its successors as Owner Trustee) incorporated under the laws of
the United States or any State and subject to supervision and examination by
federal and/or State banking authorities and the deposits of which are fully
insured by the Federal Deposit Insurance Corporation, so long as at the time of
such investment or contractual commitment providing for such investment either
such depository institution or trust company has the Required Rating or the
Indenture Trustee shall have received a letter from each Rating Agency to the
effect that such investment would not result in the qualification, downgrading
or withdrawal of the ratings then assigned to any Rated Securities;
(c) repurchase obligations held by the Indenture Trustee that
are acceptable to the Indenture Trustee with respect to (i) any security
described in clause (a) above or (e) below, or (ii) any other security issued or
guaranteed by any agency or instrumentality of the United States, in either case
entered into with a federal agency or depository institution or trust company
(including the Indenture Trustee) acting as principal, whose obligations having
the same maturity as that of the repurchase agreement would be Permitted
Investments under clause (b) above; provided, however, that repurchase
obligations entered into with any particular depository institution or trust
company (including the Indenture Trustee or Owner Trustee) will not be Permitted
Investments to the extent that the aggregate principal amount of such repurchase
obligations with such depository institution or trust company held by the
Indenture Trustee on behalf of the Trust shall exceed 10% of either the
Aggregate Net Investment Value or the aggregate unpaid principal balance or face
amount, as the case may be, of all Permitted Investments held by the Indenture
Trustee on behalf of the Trust;
(d) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States or any State
so long as at the time of such investment or contractual commitment providing
for such investment either the long-term, unsecured debt of such corporation has
the highest available rating from Moody's, Standard & Poor's and (if rated by
Fitch) Fitch, or the Indenture Trustee shall have received a letter from each
Rating Agency to the effect that such investment would not result in the
qualification, downgrading or withdrawal of the ratings then assigned to any
Rated Securities, or commercial paper or other short-term debt having the
Required Rating; provided, however, that any such commercial paper or other
short-term debt may have a remaining term to maturity of no longer than 30 days
after the date of such investment or contractual commitment providing for such
investment, and that securities issued by any particular corporation will not be
Permitted Investments to the extent that investment therein will cause the then
outstanding principal amount or face amount, as the case may be, of securities
issued by such corporation and held by the Indenture Trustee on behalf of the
Trust to exceed 10% of either the Aggregate Net Investment Value or the
aggregate unpaid principal balance or face amount, as the case may be, of all
Permitted Investments held by the Indenture Trustee on behalf of the Trust;
(e) interests in any open-end or closed-end management type
investment company or investment trust (i) registered under the Investment
Company Act, the portfolio of which is limited to the obligations of, or
guaranteed by, the United States and to agreements to repurchase such
obligations, which agreements, with respect to principal and interest, are at
least 100% collateralized by such obligations marked to market on a daily basis
and the investment company or investment trust shall take delivery of such
18
obligations either directly or through an independent custodian designated in
accordance with the Investment Company Act and (ii) acceptable to each Rating
Agency (as approved in writing by each Rating Agency) as collateral for
securities having ratings equivalent to the ratings of the Rated Securities on
the Closing Date;
(f) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation (as approved in writing by each Rating
Agency) as will not result in the qualification, downgrading or withdrawal of
the ratings then assigned to any Rated Securities by each Rating Agency;
(g) investments in Permitted Investments maintained in "sweep
accounts," short-term asset management accounts and the like utilized for the
investment, on an overnight basis, of residual balances in investment accounts
maintained at the Indenture Trustee or any other depository institution or trust
company organized under the laws of the United States or any state that is a
member of the Federal Deposit Insurance Corporation, the short-term debt of
which has the highest available credit rating of Moody's, Standard & Poor's and
(if rated by Fitch) Fitch; provided, however, that any such account must be
maintained with an institution meeting the requirements of Section 3.01
applicable to the Distribution Account;
(h) guaranteed investment contracts entered into with any
financial institution having a final maturity of not more than one month from
the date of acquisition, the short-term debt securities of which institution
have the Required Rating;
(i) funds classified as money market funds or invested in
money market instruments consisting of: U.S. Treasury bills, other obligations
issued or guaranteed by the U.S. government, its agencies or instrumentalities;
certificates of deposit; banker's acceptances; and commercial paper (including
variable master demand notes); provided, however, that the fund or the
investment in the fund shall be rated with the highest available credit rating
of Moody's, Standard & Poor's and (if rated by Fitch) Fitch, and redemptions
shall be permitted on a daily or next business day basis; and
(j) such other investments acceptable to each Rating Agency
(as approved in writing by each Rating Agency) as will not result in the
qualification, downgrading or withdrawal of the ratings then assigned to any
Rated Securities by such Rating Agency.
Notwithstanding anything to the contrary contained in the foregoing
definition:
(a) no Permitted Investment may be purchased at a premium;
(b) any of the foregoing which constitutes a certificated security
shall not be considered a Permitted Investment unless
(i) in the case of a certificated security that is in
bearer form, (A) the Indenture Trustee acquires physical possession of
such certificated security, or (B) a person, other than a Securities
Intermediary, acquires possession of such certificated security on
behalf of the Indenture Trustee; and
(ii) in the case of a certificated security that is
in registered form, (A)(1) the Indenture Trustee acquires physical
possession of such certificated security, (2) a person, other than a
Securities Intermediary, acquires possession of such certificated
security on behalf of the Indenture Trustee, or (3) a Securities
Intermediary acting on behalf of the Indenture Trustee acquires
possession of such certificated security and such certificated security
has been specially indorsed to the Indenture Trustee, and (B) (1) such
19
certificated security is indorsed to the Indenture Trustee or in blank
by an effective Indorsement, or (2) such certificated security is
registered in the name of the Indenture Trustee;
(c) any of the foregoing that constitutes an uncertificated
security shall not be considered a Permitted Investment unless (A) the Indenture
Trustee is registered by the issuer as the owner thereof, (B) a person, other
than a Securities Intermediary, becomes the registered owner of such
uncertificated security on behalf of the Indenture Trustee, or (C) the issuer of
such uncertificated security agrees that it will comply with the instructions
originated by the Indenture Trustee without further consent by any registered
owner of such uncertificated security;
(d) any of the foregoing that constitutes a Security
Entitlement shall not be considered a Permitted Investment unless (A) the
Indenture Trustee becomes the Entitlement Holder thereof, or (B) the Securities
Intermediary has agreed to comply with the Entitlement Orders originated by the
Indenture Trustee without further consent by the Entitlement Holder; and
(e) any of the foregoing shall not constitute a Permitted
Investment unless the Indenture Trustee (A) has given value, and (B) does not
have Notice of an Adverse Claim.
For purposes of this definition, any reference to the highest available
credit rating of an obligation shall mean the highest available credit rating
for such obligation (excluding any "+" signs associated with such rating), or
such lower credit rating (as approved in writing by each Rating Agency) as will
not result in the qualification, downgrading or withdrawal of the rating then
assigned to any Rated Securities by such Rating Agency.
"Rated Securities" means each Class of Securities that has been rated
by a Rating Agency at the request of the Transferor.
"Rating Agency" means each of Moody's, Standard & Poor's and Fitch and
any other nationally recognized statistical rating agency, but only if it has
rated any Class of Notes as of the Closing Date at the request of the Transferor
and continues to do so.
"Reallocation Deposit Amount" means any amount required to be deposited
by the Servicer into the 1999-A SUBI Collection Account pursuant to the last
sentence of Section 8.03(a) of the 1999-A Servicing Supplement.
"Record Date" means, with respect to each Distribution Date, (i) in the
case of the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes or the
Class A-4 Notes, the calendar day immediately preceding such Distribution Date
(or, if Definitive Notes have been issued, the last day of the immediately
preceding calendar month) and (ii) in the case of the Class B Notes, the last
day of the calendar month immediately preceding the month in which such
Distribution Date occurs.
"Reference Banks" means four major banks in the London interbank market
selected by the Servicer.
"Required Amount" means, as of any Deposit Date, the lesser of: (a) the
excess of (i) the sum of any anticipated amounts to be payable as set forth in
clauses (i) through (v) and (vii) through (xii) of Section 3.03(b) with respect
to the related Distribution Date (plus those amounts included in clauses (a)
through (c) of the definition of "Interest Collections" in the 1999-A SUBI
Supplement), over (ii) the sum of (A) the product of (x) the Investor Percentage
with respect to Interest Collections and (y) the Interest Collections collected
during or received with respect to the related Collection Period, (plus in the
case of Section 3.03(b)(ii) the Class A Cap Receipt and in the case of Section
3.03(b)(iv) the Class B Cap Receipt) for the related Distribution Date), (B) any
Transferor Amounts for the related Distribution Date applied pursuant to Section
3.03(e)(i), and (C) the proceeds of any claim under the Residual Value Insurance
Policy pursuant to Section 9.10(b) of the 1999-A Servicing Supplement, as
applied pursuant
20
to clause (ii) of Section 3.03(e); and (b) the total amount on deposit in the
Reserve Fund after all deposits thereto pursuant to clause (vi) of Section
3.03(b).
"Required Rating" means a rating on commercial paper or other short
term unsecured debt obligations of Prime-1 by Moody's so long as ▇▇▇▇▇'▇ is a
Rating Agency, A-1 by Standard & Poor's so long as Standard & Poor's is a Rating
Agency, and if such commercial paper or short term unsecured debt obligations
are rated by Fitch, at least F-1 by Fitch so long as Fitch is a Rating Agency;
and any requirement that deposits or debt obligations have the "Required Rating"
shall mean that such deposits or debt obligations have the foregoing required
ratings from Moody's, Standard & Poor's and (if rated by Fitch) Fitch.
"Reserve Fund" means the account designated as such and established and
maintained pursuant to Section 3.04.
"Reserve Fund Cash Requirement" means with respect to any Distribution
Date the maximum sum of money required to be on deposit in the Reserve Fund at
any one time and shall be calculated as follows: (a) if a RV Insurer Trigger
Event or Downgrade Trigger Event shall have occurred and be continuing, (i) if
only one of the RV Insurer Trigger Event or Downgrade Trigger Event shall have
occurred and be continuing (and, with respect to a Downgrade Trigger Event, the
60 day period set forth in the fourth sentence of Section 3.04(b) has elapsed
and the Transferor has elected to comply with the requirements of clause (ii)
thereof rather than clause (i)), then in accordance with the RV Insurer Trigger
Event Reserve Fund Formula or Downgrade Reserve Fund Formula, as applicable, or
(ii) if both the RV Insurer Trigger Event and the Downgrade Trigger Event shall
have occurred and be continuing (and, with respect to a Downgrade Trigger Event,
the 60 day period set forth in the fourth sentence of Section 3.04(b) has
elapsed and the Transferor has elected to comply with the requirements of clause
(ii) thereof rather than clause (i)), then in accordance with the greater of the
RV Insurer Reserve Fund Formula or Downgrade Reserve Fund Formula from time to
time; or (b) if the ERISA Compliance Test is satisfied as of such Distribution
Date and no RV Insurer Trigger Event or Downgrade Trigger Event shall have
occurred and be continuing, (i) if all applicable Reserve Fund Tests are
satisfied as of the related Determination Date, in accordance with the Base
Reserve Fund Formula, or (ii) if any Reserve Fund Test is unsatisfied as of any
Distribution Date, in accordance with the Alternate Reserve Fund Formula.
"Reserve Fund Deficiency" means, as of any Deposit Date, the excess, if
any, of (a) the sum of any Required Amount (considered without regard to clause
(b) of the definition thereof) and any other amounts payable out of the Reserve
Fund pursuant hereto on such Deposit Date or the related Distribution Date, over
(b) the total amount on deposit in the Reserve Fund, prior to any deposit
therein by, or on behalf of, the Transferor pursuant to Section 3.04(b).
"Reserve Fund Initial Deposit" means $[__________].
"Reserve Fund Test" means either of the Charge-off Rate Test or the
Delinquency Rate Test.
"Reserve Fund Supplemental Requirement" means, as of any Deposit Date
on which there is a Reserve Fund Deficiency, the lesser of (a) such Reserve Fund
Deficiency and (b) $[__________] less the aggregate of all amounts previously
deposited by or on behalf of the Transferor into the Reserve Fund to satisfy a
Reserve Fund Deficiency.
"Residual Value Insurance Policy" means that certain Residual Value
Insurance Policy number [__________] effective as of [________], 1999, by the RV
Insurer, in favor of the Indenture Trustee.
"Residual Value Loss Amount" means, as of any Distribution Date, the
sum of the following: (a) the Booked Residual Values of all 1999-A Leased
Vehicles included in Matured Leased Vehicle Inventory as of the last day of the
related Collection Period but which as of such day had remained unsold and not
21
otherwise disposed of by the Servicer for at least two full Collection Periods;
(b) any excess of the sum of the Booked Residual Values of all Matured Vehicles
sold or otherwise disposed of from Matured Leased Vehicle Inventory during the
related Collection Period over Net Matured Leased Vehicle Proceeds; and (c) any
Early Termination Amount for the related Collection Period.
"Responsible Officer" means an officer of the Owner Trustee or
Indenture Trustee, as applicable, assigned to the applicable Corporate Trust
Office, including any Vice President, any trust officer or any other officer
performing functions similar to those performed by the persons who at the time
shall be such officers, and any other officer of the Owner Trustee or Indenture
Trustee, as applicable, to whom a matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"RV Insurer" means American International Specialty Lines Insurance
Company, an Alaska stock insurance company.
"RV Insurer Reserve Fund Supplemental Requirement" means, at any time,
the difference between (i) the greater of (A) the Reserve Fund Initial Deposit
and (B) the amount then on deposit in the Reserve Fund, and (ii) $[__________].
"RV Insurer Trigger Event" means any of the following:
(a) The RV Insurer shall file a petition commencing a
voluntary case under any chapter of the Federal bankruptcy laws; or the RV
Insurer shall file a petition or answer or consent seeking reorganization,
arrangement, adjustment, or composition under any other similar applicable
Federal law, or shall consent to the filing of any such petition, answer, or
consent; or the RV Insurer shall appoint, or consent to the appointment of a
custodian, receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of it or of any substantial part of
its property, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due;
(b) any order for relief against the RV Insurer shall have
been entered by a court having jurisdiction in the premises under any chapter of
the Federal bankruptcy laws; or a decree or order by a court having jurisdiction
in the premises shall have been entered approving as properly filed a petition
seeking reorganization, arrangement, adjustment, or composition of the RV
Insurer under any other similar applicable Federal law; or a decree or order of
a court having jurisdiction in the premises for the appointment of a custodian,
receiver, liquidator, trustee, assignee, sequestrator or other similar official
in bankruptcy, receivership or insolvency of the RV Insurer or of any
substantial part of its property, or for the winding up or liquidation of its
affairs, shall have been entered; or
(c) the Residual Value Insurance Policy shall have been
declared void or unenforceable by a court of competent jurisdiction in a final
judgment as to which the time for noting an appeal has expired and all appeals
have been decided;
in each case without: (i) one or more policies with substantially
similar coverage and provisions to the Residual Value Insurance Policy having
been issued by an insurer acceptable to each Rating Agency (as evidenced by
confirmation (written or oral) from each to the effect that such change would
not result in its then-current rating of any Rated Securities being qualified,
reduced or withdrawn), provided that the Origination Trustee, the Owner Trustee
and the Indenture Trustee shall at all times have the same rights with respect
to any replacement policy as with respect to the original policy; or (ii) an
alternative mechanism to support the Booked Residual Values of the 1999-A Leased
Vehicles having been approved in accordance with the procedures set forth in
Section 9.01 for the amendment hereof.
"RV Insurer Trigger Event Reserve Fund Formula" means $[__________].
22
"Schedule of Leases and Leased Vehicles" means the schedule of 1999-A
Leases and 1999-A Leased Vehicles as such schedule shall be amended and updated
from time to time.
"Securities" means the Notes and the Transferor Certificate.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Intermediary" has the meaning set forth in Section
8-102(a)(14) of the UCC.
"Security Entitlement" has the meaning set forth in Section
8-102(a)(17) of the UCC.
"Servicer" means WOFCO, in its capacity as servicer of the 1999-A
Leases and 1999-A Leased Vehicles, and each successor thereto (in the same
capacity) appointed pursuant to Sections 2.10 of the Servicing Agreement and
9.11 of the 1999-A Servicing Supplement, respectively.
"Servicer's Certificate" means an Officer's Certificate of the Servicer
completed and executed pursuant to Section 10.01 of the 1999-A Servicing
Supplement.
"Servicing Agreement" has the meaning set forth in Recital C.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc., and its successors.
"State" means any state of the United States, the District of Columbia
and the Commonwealth of Puerto Rico.
"SUBI Certificate" has the meaning set forth in Recital D.
"SUBI Certificate Agreement" has the meaning set forth in Recital F.
"Transaction Documents" has the meaning attributed to the term
"Securitization Trust Documents" in the 1999-A SUBI Supplement.
"Transferor" means ▇▇▇▇ ▇▇, in its capacity as transferor of the 1999-A
SUBI Certificate and the 1999-A SUBI Interest under this Agreement, and each
successor thereto (in the same capacity) pursuant to Section 2.02.
"Transferor Amounts" means, with respect to any Distribution Date,
amounts available for distribution to the Transferor in respect of the
Transferor Distributable Amount for such Distribution Date that are instead
distributed pursuant to Section 3.03(e) because of an insufficiency in the
amount of Interest Collections available to make such distributions on such
Distribution Date (as determined pursuant to Section 3.03(e)).
"Transferor Certificate" means the Certificate executed and
authenticated by the Owner Trustee in substantially the form set forth in
Exhibit A to this Agreement.
"Transferor Distributable Amount" means, with respect to any
Distribution Date, the sum of the Transferor Principal Distributable Amount and
the Transferor Interest Distributable Amount.
"Transferor Interest" means, as of any date, an amount equal to (i) the
Aggregate Net Investment Value less (ii) the Note Balance.
"Transferor Interest Distributable Amount" means, with respect to any
Distribution Date, the amount equal to the Transferor Percentage (with respect
to Interest Collections) of all Interest
23
Collections collected during or received in respect of the related Collection
Period, less the Transferor Percentage of Capped Indenture Trustee
Administrative Expenses, Capped Owner Trustee Administrative Expenses and
Uncapped Administrative Expenses.
"Transferor Percentage" means, with respect to Interest Collections and
Principal Collections respectively, received in or with respect to any
Collection Period, 100% minus the Investor Percentage as applied for such
Collection Period with respect to such items, respectively.
"Transferor Principal Distributable Amount" means, with respect to any
Distribution Date related to a Collection Period in the Amortization Period, the
amount equal to the Transferor Percentage (with respect to Principal
Collections) of all Principal Collections collected during or received in
respect of the related Collection Period.
"Trust" means the World Omni 1999-A Automobile Lease Securitization
Trust created by this Agreement, the estate of which consists or will consist of
the Trust Estate.
"Trust Estate" means (i) the property conveyed to the Trust under
Section 2.02; (ii) the Distribution Account, the Reserve Fund and such monies as
are from time to time deposited therein; (iii) the Residual Value Insurance
Policy and (iv) all proceeds of the foregoing.
"UCC" means (a) in the case of Permitted Investments, the Uniform
Commercial Code as in effect in the State of Illinois, and (b) in all other
cases, the Uniform Commercial Code as in effect in the relevant jurisdiction.
"Uncapped Administrative Expenses" means Administrative Expenses that
would be Capped Contingent and Excess Liability Premiums, Capped Origination
Trust Administrative Expenses, Capped Indenture Trustee Administrative Expenses
or Capped Owner Trustee Administrative Expenses, respectively, except that they
exceed $[__________], $[__________], $[__________] (or $[__________] as
applicable) or $[__________] in any calendar year, respectively.
"Uncovered Loss Amounts" means, for any Distribution Date, the excess
of (i) the Investor Percentage of Loss Amounts for such Distribution Date over
(ii) Covered Loss Amounts for such Distribution Date.
"Undistributed Transferor Excess Collections" has the meaning set forth
in Section 3.03(c).
"Uninvested Principal Collections" means, as of the end of the
Revolving Period, any Principal Collections with respect to the Revolving Period
(or amounts treated as Principal Collections pursuant to Section 3.03(b)) then
on deposit in the 1999-A SUBI Collection Account that have not been reinvested
in additional 1999-A Leases and 1999-A Leased Vehicles as contemplated by
Section 8.02 of the 1999-A Servicing Supplement.
"United States" means the United States of America, its territories and
possessions and areas subject to its jurisdiction.
"U.S. Bank" has the meaning set forth in Recital A.
"Vice President" of any Person means any vice president of such Person,
whether or not designated by a number or words before or after the title "Vice
President."
"WOFCO" means World Omni Financial Corp. and its successors.
"▇▇▇▇ LLC" means World Omni Lease Securitization LLC, a single member
Delaware limited liability company, the general partner of ▇▇▇▇ ▇▇.
24
"▇▇▇▇ ▇▇" means World Omni Lease Securitization L.P. and its
successors.
Section 1.02. Article and Section References.
Except as otherwise specified herein, all article and section
references shall be to Articles and Sections in this Agreement.
ARTICLE TWO. CREATION OF TRUST
Section 2.01. Creation of Trust.
Upon the execution of this Agreement by the parties hereto, there is
hereby created the World Omni 1999-A Automobile Lease Securitization Trust. It
is the intention of the parties hereto that the Trust constitute a business
trust under the Business Trust Statute, that the Owner Trustee be the sole
trustee of such business trust, and that this Agreement constitute the governing
instrument of such business trust. The Owner Trustee shall file the Certificate
of Trust with the Secretary of State of the State of Delaware.
Section 2.02. Conveyance of the 1999-A SUBI Interest.
In consideration of the Trust's delivery to, or upon the order of, the
Transferor of executed and authenticated Notes, in authorized denominations, in
an aggregate amount equal to the sum of the Initial Class A Note Balance and the
Initial Class B Note Balance, and of the executed and authenticated Transferor
Certificate, the Transferor does hereby transfer, assign and otherwise convey to
the Trust, in trust for the benefit of the Noteholders and Certificateholder, to
the full extent of the Transferor's interest therein, without recourse (subject
to the Transferor's obligations herein):
(i) all right, title and interest of the Transferor
in and to its interest in the 1999-A SUBI and the 1999-A SUBI Certificate
evidencing that interest in the 1999-A SUBI (such interest, the "1999-A SUBI
Interest") and all monies due thereon and paid thereon or in respect thereof;
(ii) the right to realize upon any property that may
be deemed to secure the 1999-A SUBI Interest;
(iii) all rights accruing to the holder of the 1999-A
SUBI Interest as a third-party beneficiary under the Origination Trust
Agreement, the 1999-A SUBI Supplement, the Servicing Agreement and the 1999-A
Servicing Supplement; and
(iv) all proceeds of the foregoing.
The Transferor also does hereby grant to the Trust a
security interest in all of the foregoing, and the Trust shall have all the
rights, powers and privileges of a secured party under the UCC.
Section 2.03. Acceptance by Owner Trustee.
The Owner Trustee does hereby accept on behalf of the Trust all
consideration conveyed by the Transferor pursuant to Section 2.02 and declares
that the Owner Trustee shall hold such consideration in trust as herein set
forth for the benefit of the Noteholders and the Certificateholder, subject to
the terms and provisions of this Agreement and the Indenture.
25
ARTICLE THREE. DISTRIBUTIONS; RESERVE FUND; STATEMENTS TO SECURITYHOLDERS
Section 3.01. Distribution Account.
(a) Pursuant to Section 9.02(e) of the 1999-A Servicing
Supplement, the Servicer (on behalf of the Owner Trustee) shall establish the
Distribution Account in the name of the Indenture Trustee for the benefit of the
Noteholders and the Certificateholder. The Distribution Account shall be an
account initially established with the Indenture Trustee and maintained with the
Indenture Trustee so long as (i) the commercial paper or other short-term
unsecured debt obligations of the Indenture Trustee have the Required Rating, or
(ii) the Distribution Account is a segregated trust account bearing a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Noteholders and the Certificateholder, which
Distribution Account is located in the Corporate Trust Office of the Indenture
Trustee and, so long as ▇▇▇▇▇'▇ is a Rating Agency, the Indenture Trustee has a
long term deposit rating from Moody's of at least Baa3 (or such lower rating as
Moody's shall approve in writing) and corporate trust powers under applicable
federal and state laws and is organized under the laws of the United States or
any State. In the event that the Indenture Trustee no longer meets either of the
requirements stated above, then the Servicer shall, with the Indenture Trustee's
assistance as necessary, cause the Distribution Account to be moved to a bank or
trust company that satisfies the above-mentioned requirements. The Owner Trustee
hereby grants a security interest in the Distribution Account and all amounts on
deposit therein including all Permitted Investments therein and all proceeds of
the foregoing to the Indenture Trustee for the benefit of the Noteholders.
(b) For so long as the depository institution or trust company
then maintaining the Distribution Account meets the requirements of either
Section 3.01(a)(i) or (ii), all amounts held in the Distribution Account shall,
to the extent permitted by applicable laws, rules and regulations, be invested,
as directed by the Servicer pursuant to Section 9.02(j) of the 1999-A Servicing
Supplement, in Permitted Investments (or, if the Servicer fails to give such
directions, as provided in Section 8.03 of the Indenture); otherwise such
amounts shall be maintained in cash. Earnings on investment of funds in the
Distribution Account shall be retained in the Distribution Account and shall
constitute part of the Trust Estate, and losses shall be charged against the
funds on deposit therein.
Section 3.02. Collections.
(a) Pursuant to Sections 9.02(b) and 9.10(b) of the 1999-A
Servicing Supplement, the Servicer shall deposit all proceeds of claims made
under the Residual Value Insurance Policy for insured Residual Value Loss
Amounts with respect to the Amortization Period into the Distribution Account
within one (1) Business Day after receipt. Pursuant to Section 12.01(c) of the
1999-A SUBI Supplement and Section 9.02(g) of the 1999-A Servicing Supplement,
on each Deposit Date the Servicer shall cause the transfer from the 1999-A SUBI
Collection Account to the Distribution Account of all Interest Collections and,
on each Deposit Date related to the Collection Period in which the Amortization
Date or any Early Amortization Event occurs, and each subsequent Collection
Period, all Principal Collections, in each case for the preceding Collection
Period (including, on the Deposit Date related to the Collection Period in which
an Early Amortization Event occurs, all Principal Collections with respect to
such Collection Period prior to the Early Amortization Event). Pursuant to the
Class A Interest Rate Cap Agreement and the Class B Interest Rate Cap Agreement,
on each Deposit Date the Class A Cap Provider shall deposit into the
Distribution Account the Class A Cap Receipt, and the Class B Cap Provider shall
deposit into the Distribution Account the Class B Cap Receipt, if any. Further,
on the Deposit Date related to the Collection Period in which the Amortization
Date or any Early Amortization Event occurs, the Servicer also shall cause the
transfer from the 1999-A SUBI Collection Account to the Distribution Account all
Reallocation Deposit Amounts and Uninvested Principal Collections on deposit in
the 1999-A SUBI Collection Account at the time the Amortization Period
commences. Such deposit may be made in the form of a single deposit and shall be
made in immediately available funds, no later than 3:00 p.m., New York City
time, on the relevant Deposit Date.
26
(b) The Indenture Trustee shall retain, subject to the
provisions of this Agreement and the other Transaction Documents, all
collections on or in respect of the 1999-A SUBI Interest transferred to the
Indenture Trustee, on behalf of the Noteholders, in accordance with such
provisions, in the Distribution Account or the Reserve Fund, as the case may be.
The Indenture Trustee shall be deemed to have possession of such monies and
collections for purposes of Section 9-305 of the UCC of the jurisdiction in
which such property is located.
Section 3.03. Distributions.
(a) On each Determination Date, pursuant to Section 9.02(f) of
the 1999-A Servicing Supplement, the Servicer shall calculate the amounts to be
distributed to the holder of the 1999-A SUBI Certificate, the Class A-1
Distributable Amount, the Class A-2 Distributable Amount, the Class A-3
Distributable Amount, the Class A-4 Distributable Amount, the Class B
Distributable Amount, the Transferor Distributable Amount, and all other
distributions to be made on the related Distribution Date.
(b) The rights of the Class B Noteholders to receive
distributions of Interest Collections in respect of the Class B Notes shall be
and are subordinated to the rights of the Class A-1 Noteholders, the Class A-2
Noteholders, the Class A-3 Noteholders and the Class A-4 Noteholders to receive
distributions of Interest Collections in respect of the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes to the extent
provided in this Agreement and the Indenture. On each Distribution Date the
Indenture Trustee shall distribute the product of (i) the Investor Percentage
with respect to Interest Collections, multiplied by (ii) the Interest
Collections paid over to the Indenture Trustee from the 1999-A SUBI Collection
Account pursuant to Section 3.02(a), together with any Transferor Amounts, any
amounts deposited by the Transferor into the Distribution Account pursuant to
subsection (e)(ii) below, any proceeds of a claim made under the Residual Value
Insurance Policy pursuant to Section 9.10(b) of the 1999-A Servicing Supplement
and the Required Amount, if any, for such Distribution Date, and any amount of
Principal Collections that otherwise would be distributed to the Class B
Noteholders pursuant to subsection (d) below but is required to be applied to
the payment of clauses (iii), (vii) and (viii) below pursuant to subsection
(e)(v) below, in the following amounts and otherwise in the following order of
priority to the following Persons:
(i) in the event of an Indenture Event of Default, to
the Indenture Trustee, the Investor Percentage of Capped Indenture Trustee
Administrative Expenses and to the Owner Trustee, the Investor Percentage of
Capped Owner Trustee Administrative Expenses;
(ii) first from the Class A Cap Receipt and then from
the amounts remaining after application of
clause (i) above the Class A-1 Interest Distributable Amount for such
Distribution Date together with any unpaid Class A-1 Interest Carryover
Shortfall, the Class A-2 Interest Distributable Amount for such Distribution
Date together with any unpaid Class A-2 Interest Carryover Shortfall, the Class
A-3 Interest Distributable Amount for such Distribution Date together with any
unpaid Class A-3 Interest Carryover Shortfall and the Class A-4 Interest
Distributable Amount for such Distribution Date together with any unpaid Class
A-4 Interest Carryover Shortfall, to the Class A-1, the Class A-2, the Class A-3
and the Class A-4 Noteholders, respectively;
(iii) to the Class A-1, Class A-2, Class A-3 and
Class A-4 Noteholders, respectively, the Class A-1
Uncovered Loss Interest Amount, the Class A-2 Uncovered Loss Interest Amount,
the Class A-3 Uncovered Loss Interest Amount and the Class A-4 Uncovered Loss
Interest Amount, if any, for such Distribution Date; provided, however, if funds
available are not sufficient to the make these distributions, such funds will be
allocated pro rata among the Class A Noteholders based on the Class A-1, Class
A-2, Class A-3 and Class A-4 Allocation Percentages;
27
(iv) first from the Class B Cap Receipt and then from
the amounts remaining after application of clauses (i), (ii) and (iii) above,
the Class B Interest Distributable Amount for such Distribution Date, together
with any unpaid Class B Interest Carryover Shortfall, to the Class B
Noteholders; provided, however, the amount distributable pursuant to this clause
(iv) will be limited to the Class B Note Rate Cap;
(v) in circumstances other than those set forth in
clause (i), the Investor Percentage of Capped Indenture Trustee Administrative
Expenses for the preceding Collection Period to the Indenture Trustee and the
Investor Percentage of Capped Owner Trustee Administrative Expenses for the
preceding Collection Period to the Owner Trustee;
(vi) until the amount on deposit in the Reserve Fund
equals the Reserve Fund Cash Requirement, to
the Reserve Fund;
(vii) to the Class A Noteholders, (A) so long as the
Note Balance of the Class B Notes has not been
reduced to zero, an amount equal to the Covered Loss Amount for the related
Distribution Date, sequentially, commencing with the Class A-1 Noteholders until
the Note Balance on each such Class has been reduced to zero, or (B) if the Note
Balance of the Class B Notes has been reduced to zero, an amount equal to the
Covered Loss Amount for the related Distribution Date, pro rata based on the
Class A-1, Class A-2, Class A-3 and Class A-4 Allocation Percentages;
(viii) to the Class A-1, the Class A-2, the Class A-3
and the Class A-4 Noteholders, respectively,
any unreimbursed Class A-1 Uncovered Loss Amounts, Class A-2 Uncovered Loss
Amounts, Class A-3 Uncovered Loss Amounts and Class A-4 Uncovered Loss Amounts
remaining from previous Distribution Dates; provided, however, if funds
available are not sufficient to the make these distributions, such funds will be
allocated pro rata among the Class A Noteholders based on the Class A-1, Class
A-2, Class A-3 and Class A-4 Allocation Percentages;
(ix) to the Class B Noteholders, any Class B
Uncovered Loss Interest Amount and any Class B Note Principal Carryover
Shortfall Interest Amount for such Distribution Date;
(x) to the Class B Noteholders, any unreimbursed
Class B Uncovered Loss Amounts and any
unreimbursed Class B Note Principal Carryover Shortfall, in each case remaining
from previous Distribution Dates;
(xi) the Investor Percentage of Uncapped
Administrative Expenses, (A) to the Origination Trustee, the Indenture Trustee
or the Owner Trustee, as applicable, and then (B) to the Servicer, reimbursement
of any previous advance of Administrative Expenses that was made by the Servicer
pursuant to Section 9.05(a) of the 1999-A Servicing Supplement and has not yet
been reimbursed; and
(xii) the balance, if any, shall constitute Excess
Collections and shall be applied as set forth in
subsection (c) below.
Notwithstanding the foregoing, on any Distribution
Date related to a Collection Period in the Revolving Period, the amounts set
forth in clauses (vii), (viii) and (x) above shall not be paid to the
Noteholders, but shall be treated as Principal Collections for purposes of
Section 11.02 of the 1999-A SUBI Supplement.
(c) On each Distribution Date, the Indenture Trustee shall
distribute any Excess Collections in the following amounts and in the following
order of priority:
(i) if the Distribution Date relates to a Collection
Period in the Revolving Period, then as follows:
28
(A) if (1) the ERISA Compliance Test is
unsatisfied, or (2) if a Downgrade Trigger Event has Toccurred and is
continuing, the 60 day period set forth in the fourth sentence of
Section 3.04(b) has elapsed, and the Transferor cannot comply with the
requirements of either clause (i) or clause (ii) thereof or has
determined in good faith that such compliance would not be commercially
reasonable, then any remainder to the Reserve Fund; and
(B) if Excess Collections are not required
to be applied as set forth in clause (A) above, then any remainder to
the Transferor;
(ii) if the Distribution Date relates to a Collection
Period in the Amortization Period, then as follows:
(A) any remainder up to but not exceeding
the product of one-twelfth of .25% and the Aggregate Net Investment
Value as of the last day of the related Collection Period (the
"Accelerated Principal Distribution Amount") as an additional principal
distribution to the Noteholders as follows: the Accelerated Principal
Distribution Amount will be distributed first to the Class A-1
Noteholders until the Class A-1 Notes have been paid in full, second,
to the Class A-2 Noteholders until the Class A-2 Notes have been paid
in full, third, to the Class A-3 Noteholders until the Class A-3 Notes
have been paid in full and fourth, the Class A Percentage and the Class
B Percentage of any remaining amount will be distributed to the Class
A-4 Noteholders and the Class B Noteholders, respectively, until such
Notes have been paid in full;
(B) if (1) the ERISA Compliance Test is
unsatisfied, or (2) if a Downgrade Trigger Event has occurred and is
continuing, the 60 day period set forth in the fourth sentence of
Section 3.04(b) has elapsed, and the Transferor cannot comply with the
requirements of either clause (i) or clause (ii) thereof or has
determined in good faith that such compliance would not be commercially
reasonable, then the balance of any remainder to the Reserve Fund; and
(C) if Excess Collections are not required
to be applied as set forth in clauses (A) and (B) above, then the
balance of any remainder to the Transferor.
Notwithstanding the foregoing, (i) to the extent that amounts would
otherwise be paid to the Class B Noteholders in accordance with clause (b)(iv)
above if calculated without regard to the proviso therein, amounts otherwise
payable to the Transferor shall be paid first to the Class B Noteholders in an
amount equal to the difference, if positive, between the amount payable in
clause (b)(iv) above calculated without regard to the proviso therein and the
amount payable in clause (b)(iv) above; and (ii) to the extent that such amounts
are not due to the Class B Noteholders pursuant to clause (i) of this sentence,
the Transferor may instruct the Indenture Trustee and the Servicer to redeposit
into the 1999-A SUBI Collection Account any Excess Collections that otherwise
would be payable to the Transferor pursuant to the foregoing ("Undistributed
Transferor Excess Collections"), for treatment as Collections with respect to
the Collection Period during which such Distribution Date occurs. By so
instructing the Indenture Trustee and the Servicer, the Transferor waives any
right that it may be deemed to have in the related Undistributed Transferor
Excess Collections, except insofar as they become Excess Collections payable to
the Transferor in respect of a subsequent Collection Period.
(d) On each Distribution Date beginning with the Distribution
Date related to the Collection Period in which the Amortization Period commences
and ending on the Distribution Date before the Distribution Date on which the
Class A-3 Notes have been paid in full, the Indenture Trustee shall distribute
an amount equal to the Investor Percentage of all Principal Collections
collected or received in respect of the related Collection Period to (w) the
Class A-1 Noteholders until the Class A-1 Notes have been paid in full, (x) the
Class A-2 Noteholders until the Class A-2 Notes have been paid in full, (y) the
Class A-3 Noteholders until the Class A-3 Notes have been paid in full and (z)
the Class A Percentage and the Class B Percentage thereof to the Class A-4
Noteholders and Class B Noteholders, respectively. On each Distribution Date
29
after the Class A-3 Notes have been paid in full, the Indenture Trustee shall
distribute (i) to the Class A-4 Noteholders, the Class A Percentage of Principal
Collections collected or received in respect of the related Collection Period
and (ii) subject to subsection (e) below, to the Class B Noteholders, the Class
B Percentage of such Principal Collections. Distributions to Noteholders
pursuant to Sections 3.03(b)(vii), (viii) and (x) also shall constitute
distributions of principal. The aggregate amount of principal distributed to any
Class of Noteholders shall not exceed the Initial Note Balance attributable to
that Class of Notes.
(e) If and to the extent that the amount of Interest
Collections (measured for these purposes without regard to any deduction
therefrom provided for in clauses (a) through (c) of the definition of "Interest
Collections" in the 1999-A SUBI Supplement) available to make distributions on a
Distribution Date (plus, in the case of clause (b)(ii) above, the Class A Cap
Receipt and, in the case of clause (b)(iv) above, the Class B Cap Receipt) is
insufficient to make distributions (or, on a Distribution Date related to a
Collection Period in the Revolving Period, applications as if such amounts were
Principal Collections) pursuant to clauses (i) through (xi) of Section 3.03(b)
and clauses (a) through (c) of the definition of the term "Interest Collections"
in the 1999-A SUBI Supplement, then:
(i) amounts otherwise available for distribution to the
Transferor in respect of the Transferor Interest Distributable Amount for such
Distribution Date, and then in respect of the Transferor Principal Distributable
Amount, will be applied towards such insufficiency;
(ii) if after giving effect to clause (i), there is still
a shortfall (other than any shortfall in amounts available to apply as set forth
in clause (vi) of Section 3.03(b)) in amounts available to make all
distributions (or, on a Distribution Date related to a Collection Period in the
Revolving Period, applications as if such amounts were Principal Collections)
pursuant to Section 3.03(b) and clauses (a) through (c) of the definition of the
term "Interest Collections" in the 1999-A SUBI Supplement, then any amounts that
may be deposited by the Transferor, in its sole discretion, into the
Distribution Account as a capital contribution to the Trust and designated for
that purpose will be applied towards such shortfall;
(iii) if after giving effect to clauses (i) and (ii),
there is still a shortfall (other than any shortfall in amounts available to
apply as set forth in clause (vi) of Section 3.03(b)) in amounts available to
make all distributions (or, on a Distribution Date related to a Collection
Period in the Revolving Period, applications as if such amounts were Principal
Collections) pursuant to Section 3.03(b) and clauses (a) through (c) of the
definition of the term "Interest Collections" in the 1999-A SUBI Supplement, the
proceeds of any claim made by the Servicer pursuant to Section 9.10(b) of the
1999-A Servicing Supplement will be applied towards such shortfall;
(iv) if after giving effect to clauses (i), (ii) and
(iii), there is still a shortfall (other than any shortfall in amounts available
to apply as set forth in clause (vi) of Section 3.03(b)) in amounts available to
make all distributions (or, on a Distribution Date related to a Collection
Period in the Revolving Period, applications as if such amounts were Principal
Collections) pursuant to Section 3.03(b) and clauses (a) through (c) of the
definition of the term "Interest Collections" in the 1999-A SUBI Supplement, the
Required Amount will be withdrawn from the Reserve Fund and applied towards such
shortfall; and
(v) if, on a Distribution Date related to a Collection
Period during the Amortization Period, after giving effect to clauses (i), (ii),
(iii) and (iv), there is still a shortfall in amounts required to make the
distributions (or, on a Distribution Date related to a Collection Period in the
Revolving Period, available for reinvestment in additional 1999-A SUBI Assets
pursuant to Section 11.02 of the 1999-A SUBI Supplement) pursuant to clause
(iii), (vii) or (viii) of Section 3.03(b), amounts otherwise available for
distribution to the Class B Noteholders in respect of principal pursuant to
subsection (d) above will be applied toward such insufficiency.
30
In the event that there remain shortfalls in the amounts
required to be distributed pursuant to Section 3.03(b)(ii) to the Class A-1
Noteholders, the Class A-2 Noteholders, the Class A-3 Noteholders and the Class
A-4 Noteholders, and, on and after any Distribution Date on which the Note
Balance of the Class B Notes has been reduced to zero, there remains any
shortfall in amounts required to be distributed to the Class A-1 Noteholders,
the Class A-2 Noteholders, the Class A-3 Noteholders and the Class A-4
Noteholders under Sections 3.03(b)(iii), (vii) or (viii), the amounts available
will be distributed pro rata to Class A-1 Noteholders, Class A-2 Noteholders,
Class A-3 Noteholders and Class A-4 Noteholders based on the Class A-1
Allocation Percentage, the Class A-2 Allocation Percentage, the Class A-3
Allocation Percentage and the Class A-4 Allocation Percentage, respectively.
(f) On each Distribution Date, amounts that otherwise would be
payable to the Transferor in respect of the Transferor Distributable Amount
(other than Transferor Amounts) will be distributed to the Transferor by the
Indenture Trustee as follows: (A) if such Distribution Date relates to a
Collection Period during the Revolving Period, the interest component of such
remaining amounts will be paid in respect of the Transferor Interest
Distributable Amount and (B) if such Distribution Date relates to a Collection
Period during the Amortization Period, (1) the interest component of such
remaining amounts will be paid in respect of the Transferor Interest
Distributable Amount and (2) if and to the extent that the Transferor Interest
will be equal to or greater than zero, after all required distributions have
been made on such Distribution Date, the principal component of such remaining
amounts will be paid in respect of the Transferor Principal Distributable
Amount. Any amounts that would otherwise be payable to the Transferor pursuant
to the foregoing as the Transferor Principal Distributable Amount, but may not
be so paid because the Transferor Interest would be less than or equal to zero,
shall instead be distributed to the Noteholders pursuant to Section 3.03(d).
Upon any distribution of amounts to the Transferor, the Noteholders will have no
further rights, in, or claims to, such amounts. Notwithstanding the foregoing,
the Transferor may instruct the Trustee and the Servicer to redeposit into the
1999-A SUBI Collection Account any Transferor Distributable Amounts that
otherwise would be payable to the Transferor pursuant to the foregoing, for
treatment as Collections with respect to the Collection Period during which that
Distribution Date occurs. By so instructing the Trustee and the Servicer, the
Transferor waives any right that it may be deemed to have in those Transferor
Distributable Amounts, except insofar as they become Excess Collections payable
to the Transferor in respect of a subsequent Collection Period.
(g) On the Final Scheduled Maturity Date with respect to any
Class, an additional payment to the Holders of such Class shall be made as and
to the extent required by Section 3.04(f).
Section 3.04. Reserve Fund.
(a) (i) In order to assure that sufficient amounts to
make required distributions to Noteholders will
be available, pursuant to Section 9.02(e) of the 1999-A Servicing Supplement the
Servicer (on behalf of the Owner Trustee) shall establish and maintain with and
in the name of the Indenture Trustee a separate trust account to be known as the
"Reserve Fund", which will include the money and other property deposited and
held therein pursuant to Section 3.03(c)(i) and this Section. The Reserve Fund
shall be an account initially established with the Indenture Trustee and
maintained with the Indenture Trustee so long as (A) the commercial paper or
other short-term unsecured debt obligations of the Indenture Trustee have the
Required Rating, or (B) the Reserve Fund is a segregated trust account bearing a
designation clearly indicating the funds deposited therein are held in trust for
the benefit of the Noteholders, which Reserve Fund is located in the Corporate
Trust Office of the Indenture Trustee and, so long as ▇▇▇▇▇'▇ is a Rating
Agency, the Indenture Trustee has a long-term deposit rating from Moody's of at
least Baa3 (or such lower rating as Moody's shall approve in writing) and
corporate trust powers under applicable federal and state laws and is organized
under the laws of the United States or any State. In the event that the
Indenture Trustee no longer meets either of the requirements stated above, then
the Servicer shall, with the Indenture Trustee's assistance as necessary, cause
the Reserve Fund to be moved to a bank or trust company that satisfies the
31
above-mentioned requirements. The Owner Trustee hereby grants a security
interest in the Reserve Fund and all amounts on deposit therein including all
Permitted Investments therein and all proceeds of the foregoing to the Indenture
Trustee for the benefit of the Noteholders.
(ii) For so long as the depository institution or
trust company then maintaining the Reserve Fund meets the requirements of either
Section 3.04(a)(i)(A) or (B), all amounts held in the Reserve Fund shall, to the
extent permitted by applicable laws, rules and regulations, be invested, as
directed by the Servicer pursuant to Section 9.02(j) of the 1999-A Servicing
Supplement, in Permitted Investments (or, if the Servicer fails to give such
directions, as provided in Section 8.03 of the Indenture); otherwise such
amounts shall be maintained in cash. Earnings on investment of funds in the
Reserve Fund shall be retained in the Reserve Fund and shall constitute part of
the Trust Estate, and losses shall be charged against the funds on deposit
therein.
(b) On or prior to the Closing Date, the Transferor shall
deposit an amount equal to the Reserve Fund Initial Deposit into the Reserve
Fund. The Transferor also does hereby grant to the Indenture Trustee a security
interest in such initial deposit, and the Indenture Trustee shall have all the
rights, powers and privileges of a secured party under the UCC. Amounts on
deposit in the Reserve Fund shall be supplemented from time to time by the
deposit therein of other funds as and to the extent described elsewhere in this
Agreement. Within 60 days after receipt of notice that an RV Insurer Trigger
Event exists and is continuing, the Transferor shall deposit into the Reserve
Fund an additional cash amount equal to the RV Insurer Reserve Fund Supplemental
Requirement. Within 60 days after the occurrence of a Downgrade Trigger Event,
then either: (i) the Transferor shall (A) cause one or more policies with
substantially similar coverage and provisions to the Residual Value Insurance
Policy to be issued by an insurer acceptable to each Rating Agency (as evidenced
by confirmation (written or oral) from each to the effect that such change would
not result in its then-current rating of any Rated Securities being qualified,
reduced or withdrawn), provided that the Origination Trustee and the Indenture
Trustee shall at all times have the same rights with respect to any replacement
policy as with respect to the original policy, or (B) cause an alternative
mechanism to support the Booked Residual Values of the 1999-A Leased Vehicles to
be implemented and approved in accordance with the procedures set forth in
Section 9.01 for the amendment hereof; or (ii) the Transferor shall deposit into
the Reserve Fund an additional cash amount equal to the Downgrade Reserve Fund
Supplemental Requirement; provided that if the Transferor cannot comply with
either clause (i) or clause (ii) or determines in good faith that such
compliance would be commercially unreasonable, Excess Collections shall be
deposited into the Reserve Fund as provided in Section 3.03(c). In addition, on
each Deposit Date relating to a Distribution Date on which a Reserve Fund
Deficiency will exist, the Transferor shall deposit into the Reserve Fund an
additional cash amount equal to the lesser of (i) such Reserve Fund Deficiency
and (ii) the Reserve Fund Supplemental Requirement. On each Distribution Date
the amounts on deposit in the Reserve Fund shall be available for distribution
as provided in Section 3.03 and, on each Distribution Date, if the amount on
deposit in the Reserve Fund (after giving effect to all deposits thereto or
withdrawals therefrom on such Distribution Date) is greater than the Reserve
Fund Cash Requirement and Excess Collections are not required to be deposited
into the Reserve Fund pursuant to Section 3.03(c), the Indenture Trustee will
distribute any remaining amounts to the Transferor.
(c) In the event there is a Downgrade Trigger Event, the 60
day period set forth in the fifth sentence of Section 3.04(b) has elapsed and
the Transferor has elected to comply with the requirements of clause (ii)
thereof rather than clause (i), or complies with neither of such clauses, the
Rating Agencies may impose additional conditions to the maintenance of their
then-current ratings on any Class of Notes, including conditions that may
require that this Agreement or any other Transaction Document be amended in
accordance with the provisions of Section 9.01(b) hereof or the relevant
provisions thereof.
(d) Upon termination of the Trust pursuant to Section 7.01,
any amounts on deposit in the Reserve Fund shall be available for payment of any
remaining amounts due to the Noteholders, and for payment of any remaining
32
amounts due to the Indenture Trustee and the Owner Trustee, and after payment of
such amounts due, shall be paid to the Transferor.
(e) Amounts properly received by the Transferor pursuant to
this Agreement shall be free of any claim of the Trust, the Indenture Trustee,
the Owner Trustee, the Class A Cap Provider, the Class B Cap Provider or the
Noteholders and shall not be available to the Indenture Trustee, the Owner
Trustee or the Trust for the purpose of making deposits to the Reserve Fund or
making payments to the Class A Cap Provider, the Class B Cap Provider or the
Noteholders, nor shall the Transferor be required to refund any amount properly
received by it.
(f) On the respective Final Scheduled Maturity Date for any
Class, to the extent that the Class A-1 Note Balance, the Class A-2 Note
Balance, the Class A-3 Note Balance, the Class A-4 Note Balance or the Class B
Note Balance has not been reduced to zero the Indenture Trustee shall withdraw
funds from the Reserve Fund, if available, in an amount equal to the lesser of
(A) the Class A-1 Note Balance, the Class A-2 Note Balance, the Class A-3 Note
Balance, the Class A-4 Note Balance or the Class B Note Balance, as applicable,
and (B) the amount in the Reserve Fund, and shall pay such funds to the Holders
of such Class of Notes.
Section 3.05. Net Deposits.
For so long as WOFCO shall be the Servicer, the Servicer and the
Indenture Trustee may make all remittances to the Distribution Account pursuant
to this Article net of amounts to be distributed by the applicable recipient to
such remitting party. The Transferor may make remittances to the Distribution
Account pursuant to this Article net of amounts distributable to the Transferor
on the related Distribution Date, provided that such amounts were to be paid
directly to the Transferor on such Distribution Date rather than deposited into
the Reserve Fund pursuant to Section 3.04. Nonetheless, each such party shall
account for all of the above described remittances and distributions as if the
amounts were deposited and/or transferred separately, and the net remittance may
only be made to the extent that the net result thereof is the same as if the
amounts were deposited and/or transferred separately.
Section 3.06. Statements to Noteholders.
(a) On each Distribution Date, the Indenture Trustee shall
include with each distribution to each Noteholder of record, a statement,
prepared by the Servicer, based on information in the Servicer's Certificate
furnished pursuant to Section 10.01 of the 1999-A Servicing Supplement, setting
forth for the related Collection Period and distribution the following
information as of the related Record Date or Deposit Date or such Distribution
Date, as the case may be:
(i) the Investor Percentage for such Collection
Period, stated separately for Interest Collections and Loss Amounts, and for
Principal Collections;
(ii) the total amount being distributed to
Noteholders in such distribution;
(iii) the total amount being distributed to each
Class of Noteholders in such distribution that is allocable to interest and to
principal on each Class of Notes;
(iv) the amount, if any, of Class A-1 Interest
Carryover Shortfall, Class A-2 Interest Carryover Shortfall, Class A-3 Interest
Carryover Shortfall, Class A-4 Interest Carryover Shortfall and Class B Interest
Carryover Shortfall included in such distribution;
(v) the amount, if any, of the remaining unpaid Class
A-1 Interest Carryover Shortfall, Class A-2 Interest Carryover Shortfall, Class
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A-3 Interest Carryover Shortfall, Class A-4 Interest Carryover Shortfall and
Class B Interest Carryover Shortfall after giving effect to such distribution;
(vi) the Note Balance, the Class A-1 Note Balance,
the Class A-2 Note Balance, the Class A-3 Note Balance, the Class A-4 Note
Balance, the Class B Note Balance, the Class A-1 Note Factor, the Class A-2 Note
Factor, the Class A-3 Note Factor, the Class A-4 Note Factor and the Class B
Note Factor, each after giving effect to such distribution;
(vii) the Class A-1 Allocation Percentage, the Class
A-2 Allocation Percentage, the Class A-3 Allocation Percentage, the Class A-4
Allocation Percentage and the Class B Allocation Percentage for that
Distribution Date
(viii) any Covered Loss Amounts and Uncovered Loss
Amounts for that Distribution Date, as well as the amount of Charged-off
Amounts, Residual Value Loss Amounts and Additional Loss Amounts included in
each;
(ix) the amount, if any, of the reimbursement of
Class A-1 Uncovered Loss Amounts, Class A-2 Uncovered Loss Amounts, Class A-3
Uncovered Loss Amounts, Class A-4 Uncovered Loss Amounts and Class B Uncovered
Loss Amounts included in such distribution;
(x) the amount, if any, of accrued Class A-1
Uncovered Loss Interest Amounts, Class A-2 Uncovered Loss Interest Amounts,
Class A-3 Uncovered Loss Interest Amounts, Class A-4 Uncovered Loss Interest
Amounts and Class B Uncovered Loss Interest Amounts included in such
distribution;
(xi) the amount, if any, of the aggregate of
unreimbursed Class A-1 Uncovered Loss Amounts, Class A-2 Uncovered Loss Amounts,
Class A-3 Uncovered Loss Amounts, Class A-4 Uncovered Loss Amounts and Class B
Uncovered Loss Amounts after giving effect to such distribution;
(xii) the amount, if any, of accrued and unpaid Class
A-1 Uncovered Loss Interest Amounts, Class
A-2 Uncovered Loss Interest Amounts, Class A-3 Uncovered Loss Interest Amounts,
Class A-4 Uncovered Loss Interest Amounts and Class B Uncovered Loss Interest
Amounts after giving effect to such distribution;
(xiii) the amount, if any, of accrued and unpaid
Class B Note Principal Carryover Shortfall after
giving effect to such distribution;
(xiv) the Investor Percentage of the Servicing Fee
allocable to the 1999-A SUBI Interest for such Distribution Date and any unpaid
previous such amounts with respect to prior Distribution Dates;
(xv) the Required Amount, if any, included in such
distribution, the amount on deposit in the
Reserve Fund on such Distribution Date, after giving effect to such
distributions, the change in such balance from the immediately preceding
Distribution Date, the Reserve Fund Cash Requirement, the Reserve Fund
Supplemental Requirement (if any), the RV Insurer Reserve Fund Supplemental
Requirement (if any) and the Downgrade Reserve Fund Supplemental Requirement (if
any);
(xvi) the Transferor Amount, if any, included in such
distribution and the amount of the Transferor
Interest, after giving effect to all payments made on such Distribution Date;
(xvii) the Aggregate Net Investment Value as of the
end of such Collection Period;
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(xviii) the amount of Payments Ahead on deposit in
the 1999-A SUBI Collection Account and
representing Monthly Lease Payments due in one or more immediately subsequent
Collection Periods and the change in such balance from the immediately preceding
Distribution Date;
(xix) the amount of Outstanding Advances on such
Distribution Date and the changes in such amount
from the immediately preceding Distribution Date;
(xx) the weighted average Lease Rate of the Leases in
the 1999-A SUBI Portfolio for the immediately preceding Collection Period and
the Charge-off Rate and Delinquency Rate for each of the three immediately
preceding Collection Periods;
(xxi) the Insured Residual Value Loss Amount, if any,
for such Distribution Date;
(xxii) the Class A Cap Receipt, if any, for such
Distribution Date; and
(xxiii) the Class B Cap Receipt, if any, for such
Distribution Date.
Each amount set forth pursuant to subclauses (ii) through (v) and
(viii) through (xiii) above shall be expressed as a dollar amount per $1,000 of
original principal balance of a Note. Any Note Owner may obtain a copy of any
such statement, of any Servicer's Certificate required pursuant to Section 10.01
of the 1999-A Servicing Supplement, any annual report of Independent Accountants
required pursuant to Section 3.02 of the Servicing Agreement and Section 10.02
of the 1999-A Servicing Supplement, and of any annual Officer's Certificate
required pursuant to Section 3.03 of the Servicing Agreement and Section
10.03(a) of the 1999-A Servicing Supplement, upon written request to the
Indenture Trustee at the Corporate Trust Office of the Indenture Trustee.
(b) Within a reasonable period of time after the end of each
calendar year, but not later than the latest date permitted by law, the
Indenture Trustee shall mail to each Person who at any time during such calendar
year shall have been a Holder of a Note, a statement or statements which in the
aggregate contain the sum of the amounts set forth in clauses (a)(ii) through
(vii) and (ix) through (xiv) above for such calendar year or, in the event such
Person shall have been a Holder of a Note during a portion of such calendar
year, for the applicable portion of such year, for the purposes of such
Noteholder's preparation of federal income tax returns. In addition, the
Servicer shall furnish to the Indenture Trustee for distribution to such Person
at such time any other information reasonably necessary under applicable law for
the preparation of such income tax returns.
ARTICLE FOUR. THE TRANSFEROR CERTIFICATE
Section 4.01. The Transferor Certificate.
A single Transferor Certificate shall be issued. The Transferor
Certificate shall be executed by the Owner Trustee on behalf of the Trust by
manual or facsimile signature of a Responsible Officer under the Owner Trustee's
seal imprinted thereon and attested on behalf of the Owner Trustee by the manual
or facsimile signature of a Responsible Officer. A Transferor Certificate
bearing the manual or facsimile signatures of an individual who was, at the time
when such signature was affixed, a Responsible Officer of the Owner Trustee
shall be a valid and binding obligation of the Trust, notwithstanding that such
individual ceased to be so authorized prior to the authentication and delivery
of such Transferor Certificate or was not a Responsible Officer at the date of
such Transferor Certificate. The Transferor Certificate shall be dated the date
of its authentication.
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Section 4.02. Authentication and Delivery of Transferor
Certificate.
In exchange for, and simultaneously with the sale, assignment and
transfer to the Trust of the 1999-A SUBI Interest, the 1999-A SUBI Certificate
and the other assets of the Trust, the Transferor shall receive the Transferor
Certificate and the Notes. The Owner Trustee shall, on behalf of the Trust,
execute and deliver to or upon the order of the Transferor, and shall
authenticate, the Transferor Certificate. The Transferor Certificate shall not
be entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A to this Agreement executed by
the Owner Trustee by manual signature, and such certificate upon the Transferor
Certificate shall be conclusive evidence, and the only evidence, that such
Transferor Certificate has been duly authenticated and delivered under this
Agreement.
Section 4.03. No Transfer of Transferor Certificate.
Subject to Section 5.03, the Transferor Certificate shall be owned by
the Transferor and may not be transferred, as provided by Section 5.06.
Section 4.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Transferor Certificate is surrendered to the Owner
Trustee, or the Owner Trustee receives evidence to its satisfaction of the
destruction, loss or theft of the Transferor Certificate, and (ii) there is
delivered to the Owner Trustee such security or indemnity as may be required by
it to save itself and the Trust harmless, then, in the absence of notice that
such Transferor Certificate has been acquired by a bona fide purchaser, the
Owner Trustee on behalf of the Trust shall execute and the Owner Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Transferor Certificate, a new Transferor Certificate
of like tenor and fractional undivided interest. Any duplicate Transferor
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Transferor Certificate shall be
found at any time, and any such lost, stolen or destroyed Transferor Certificate
shall, upon issuance of any such duplicate Transferor Certificate, be null, void
and of no effect.
Section 4.05. Persons Deemed Owners.
The Owner Trustee shall treat the Transferor as the owner of the
Transferor Certificate for the purpose of receiving distributions pursuant to
Section 3.03 and for all other purposes whatsoever.
ARTICLE FIVE. THE TRANSFEROR
Section 5.01. Representations of Transferor.
The Transferor hereby makes the following representations on which the
Owner Trustee relies in accepting the 1999-A SUBI Interest and 1999-A SUBI
Certificate in trust and executing and authenticating the Transferor Certificate
and executing the Notes and on which the Indenture Trustee relies in
authenticating the Notes. The representations speak as of the execution and
delivery of this Agreement, but shall survive the sale, transfer and assignment
of the 1999-A SUBI Interest and 1999-A SUBI Certificate to the Indenture Trustee
and the Owner Trustee.
(a) Organization and Good Standing. The Transferor is a
limited partnership validly organized and existing and in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties shall be currently
owned and such business is presently conducted, and has power, authority and
legal right to acquire, own and sell the 1999-A SUBI Interest and 1999-A SUBI
Certificate.
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(b) Due Registration. The Transferor is duly registered as a
foreign limited partnership 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 requires such qualifications, except
where the failure to so qualify or to have obtained such licenses and approvals
would not have a material adverse effect on the earnings, business affairs or
business prospects of the Transferor.
(c) Power and Authority. The Transferor has the power and
authority to execute and deliver this Agreement and to carry out its terms, the
Transferor has full power and authority to sell and assign the property to be
sold and assigned to and deposited with the Owner Trustee as part of the Trust
and has duly authorized such sale and assignment to the Owner Trustee by all
necessary partnership action; and the execution, delivery and performance of
this Agreement have been duly authorized by the Transferor by all necessary
partnership action.
(d) Valid Sale; Binding Obligations. This Agreement evidences
a valid sale, transfer and assignment of the 1999-A SUBI Interest and 1999-A
SUBI Certificate, enforceable against creditors of and purchasers from the
Transferor; and constitutes a legal, valid and binding obligation of the
Transferor enforceable in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of this
Agreement do not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time) a
default under, the certificate of limited partnership or limited partnership
agreement of the Transferor, or conflict with or violate any of the material
terms or provisions of, or constitute (with or without notice or lapse of time)
a default under, any indenture, agreement or other instrument to which the
Transferor is a party or by which it is bound; nor 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 this Agreement); nor
violate any law or, to the best of the Transferor's knowledge, any order, rule
or regulation applicable to the Transferor of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Transferor or its properties; which
breach, default, conflict, lien or violation would have a material adverse
effect on the earnings, business affairs or business prospects of the
Transferor.
(f) No Proceedings. There are no proceedings or investigations
pending, or to the Transferor's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Transferor or its properties: (i) asserting the
invalidity of this Agreement or the Transferor Certificate, (ii) seeking to
prevent the issuance of the Transferor Certificate or the consummation of any of
the transactions contemplated by this Agreement, (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Transferor of its obligations under, or the validity or enforceability of, this
Agreement or the Transferor Certificate or (iv) relating to the Transferor and
which might adversely affect the federal or Alabama income tax attributes of the
Transferor Certificate.
(g) Title to the 1999-A SUBI Certificate. The Transferor has
good title to, and is the sole legal and beneficial owner of, the 1999-A SUBI
Certificate, free and clear of Liens.
(h) Consents and Approvals. The Transferor has obtained or
made all necessary licenses, consents, approvals, waivers and notifications of
creditors, lessors and other nongovernmental Persons, in each case in connection
with the execution and delivery of this Agreement and the consummation of all
the transactions herein contemplated, and the Transferor is not required to
obtain the consent of any other party or the consent, license, approval, or
37
authorization from, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement.
Section 5.02. Liability of Transferor; Indemnities.
The Transferor shall be liable in accordance with this Agreement only
to the extent of the obligations in this Agreement specifically undertaken by
the Transferor in such capacity under this Agreement and shall have no other
obligations or liabilities hereunder. The Transferor agrees, on demand, to
indemnify and defend the Owner Trustee and its directors, officers, employees,
agents, successors and assigns against, and hold each of them harmless from, any
liability, costs and expenses (including reasonable attorneys' fees) that may
arise out of or in connection with the Owner Trustee acting as Owner Trustee
under this Trust Agreement, except for any liability arising out of the
negligence, bad faith or willful misconduct on the part of any such person or
persons; provided, however, that in the event any person alleges such
negligence, bad faith or willful misconduct, the indemnification provided for
herein shall nonetheless be paid on demand, subject to later adjustment or
reimbursement when and if a court of competent jurisdiction enters a final
judgment as to the extent of such negligence, bad faith or willful misconduct.
Section 5.03. Merger or Consolidation of, or Assumption of the
Obligations of, Transferor; Certain Limitations.
(a) Any Person (i) into which the Transferor may be merged or
consolidated, (ii) which may result from any merger, conversion or consolidation
to which the Transferor shall be a party or (iii) which may succeed to all or
substantially all of the business of the Transferor, shall be the successor to
the Transferor under this Agreement without the execution or filing of any
document or any further act on the part of any of the parties to this Agreement,
except that if the Transferor in any of the foregoing cases is not the surviving
entity, then the surviving entity shall execute an agreement of assumption to
perform every obligation of the Transferor either generally or specifically as
provided herein. The Transferor shall provide notice of any merger,
consolidation or succession pursuant to this Section to each Rating Agency and
shall receive confirmation (written or oral) from each Rating Agency to the
effect that such merger, consolidation, or succession will not result in a
qualification, downgrading or withdrawal of the then-current rating assigned to
any Rated Securities.
(b) (i) Subject to subparagraph (ii) below, the purpose of the
Transferor shall be to engage in any lawful activity for which a limited
partnership may be formed under the laws of the State of Delaware other than the
practice of a profession permitted to be operated through a limited partnership
under Delaware law.
(ii) Notwithstanding subparagraph (b)(i) above, the
purpose of the Transferor shall be limited to the following purposes:
(A) to act as settlor or grantor of one or more
securitization trusts formed pursuant to a trust agreement or other
agreement for the purpose of acquiring interests in the Origination
Trust, which securitization trust may issue certificates of beneficial
interest in the assets of such securitization trust;
(B) to acquire, own, hold, sell, transfer, convey, dispose
of, pledge, assign, borrow money against, finance, refinance or
otherwise deal with, publicly or privately and whether with unrelated
third parties or with affiliated entities, beneficial interests in the
Origination Trust, including without limitation any undivided trust
interests or special units of beneficial interest created with respect
to the Origination Trust, and certificates of the securitization trust;
38
(C) to loan or otherwise invest funds received as a result
of the Transferor's beneficial interest in the Origination Trust or
certificates in the securitization trust and any other income, as
determined by the general partner of the Transferor from time to time;
(D) to borrow money other than pursuant to clause (B)
above, but only to the extent that any such borrowing is permitted by
the terms of the transactions contemplated by clauses (A) and (B); and
(E) to engage in any lawful act or activity and to
exercise any powers permitted to limited partnerships organized under
Delaware law that are incidental to and necessary or convenient for the
accomplishment of the foregoing purposes.
(c) Notwithstanding any other provision of this Section and
any provision of law, neither the Transferor nor its general partner, on behalf
of the Transferor, shall do any of the following:
(i) engage in any business or activity other than as
set forth in clause (b) above;
(ii) without the affirmative vote of a majority of
the members of the Board of Directors of the Transferor's general partner (which
must include the affirmative vote of all Independent Directors of the
Transferor's general partner, as required by the limited partnership agreement
of the Transferor), (A) dissolve or liquidate, in whole or in part, or institute
proceedings to be adjudicated bankrupt or insolvent, (B) consent to the
institution of bankruptcy or insolvency proceedings against it, (C) file a
petition seeking or consent to reorganization or relief under any applicable
federal or state law relating to bankruptcy, (D) consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Transferor or a substantial part of its property, (E) make a
general assignment for the benefit of creditors, (F) admit in writing its
inability to pay its debts generally as they become due, or (G) take any
corporate action or partnership action in furtherance of the actions set forth
in clauses (A) through (F) above; provided, however, that the general partner
shall in no event consent to the institution of bankruptcy or insolvency
proceedings against the Transferor so long as it is solvent; or
(iii) merge or consolidate with any other limited
partnership, corporation, company or entity or
sell all or substantially all of its assets or acquire all or substantially all
of the assets or partnership interests or capital stock or other ownership
interest of any other limited partnership, corporation, company or entity
(except for the acquisition of beneficial interests in the Origination Trust and
the sale, transfer, conveyance, disposition, pledge, assignment, financing, and
refinancing of, or otherwise dealing with, beneficial interests in the
Origination Trust in accordance with the terms of subparagraph (b)(ii) above,
which shall not be otherwise restricted by this Section 5.03(c)).
Section 5.04. Limitation on Liability of Transferor and Others.
The Transferor and any director or officer or employee or agent of the
Transferor 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 under this Agreement.
Section 5.05. Transferor May Own Notes.
Each of the Transferor and any Person controlling, controlled by or
under common control with the Transferor may in its individual or any other
capacity become the owner or pledgee of Notes with the same rights as it would
have if it were not the Transferor or such an affiliate thereof except as
otherwise specifically provided in the definition of the term "Noteholder".
Notes so owned by or pledged to the Transferor or such controlling or commonly
controlled Person shall have an equal and proportionate benefit under the
provisions of this Agreement, without preference, priority or distinction as
39
among all of the Notes. The Transferor will give notice to each Rating Agency if
any such controlling or commonly controlled Person shall at any time become the
owner or pledgee of Notes.
Section 5.06. No Transfer.
Subject to Section 5.03, the Transferor on behalf of itself and its
successors and assigns hereby covenants that it will not transfer, pledge or
assign to any Person the Transferor Certificate or any part of its right to
receive any Excess Collections pursuant to Section 3.03(c).
Section 5.07. Tax Matters Partner.
If at any time the Trust has two or more beneficial owners and is
treated as a partnership for tax purposes, the Transferor shall act as "Tax
Matters Partner" within the meaning of section 6231 of the Code (i) to represent
the partners before taxing authorities or courts of competent jurisdiction in
any tax matters affecting the Trust as a tax partnership; and (ii) to execute
any agreements or other documents relating to or affecting such tax matters,
including, but not limited to, extending the statute of limitations for
assessment of tax deficiencies and adjusting the Trust's federal, state or local
tax returns. The Transferor shall not be liable to the Trust or to any
Noteholder for any action taken or omitted by the Transferor with regard to such
tax matters or otherwise as a result of its holding the position of Tax Matters
Partner.
ARTICLE SIX. THE OWNER TRUSTEE
Section 6.01. Duties of Owner Trustee.
(a) The Owner Trustee, both prior to and after the occurrence
of a 1999-A Servicer Event of Default under the Servicing Agreement and the
1999-A Servicing Supplement, undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement.
(b) The Owner Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Owner Trustee that shall be specifically required
to be furnished pursuant to any provision of this Agreement, shall examine them
to determine whether they conform on their face to the requirements of this
Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Owner Trustee from liability for its own negligent action, its own
negligent failure to act, its own bad faith or its own willful misfeasance;
provided, however, that
(i) the duties and obligations of the Owner Trustee
shall be determined solely by the express provisions of this Agreement, the
Owner Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Owner
Trustee, the permissive right of the Owner Trustee to do things enumerated in
this Agreement shall not be construed as a duty and, in the absence of bad faith
on the part of the Owner Trustee, the Owner Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Owner Trustee and
conforming to the requirements of this Agreement;
(ii) the Owner Trustee shall not be personally liable
for an error of judgment made in good faith
by a Responsible Officer, unless it shall be proved that the Owner Trustee was
negligent in performing its duties in accordance with the terms of this
Agreement; and
(iii) the Owner Trustee shall not be personally
liable with respect to any action taken, suffered or omitted to be taken in good
faith in accordance with the direction of the Transferor relating to the time,
40
method and place of conducting any proceeding for any remedy available to the
Owner Trustee, or exercising any trust or power conferred upon the Owner
Trustee, under this Agreement or the Origination Trust Agreement (as
supplemented by the 1999-A SUBI Supplement) or any other matter.
(iv) the Owner Trustee shall not be personally
responsible for the validity or insufficiency of this Agreement, the Indenture,
the Notes or the Certificate or for the preparation, content and sufficiency of
any document required to be filed with the Securities and Exchange Commission or
for the due execution hereof by the Transferor and the Indenture Trustee or for
the form, character, genuineness, sufficiency, value or validity of the Trust
property, and the Owner Trustee will not assume or incur any personal liability,
duty or obligation to the Transferor, other than as expressly provided for
herein;
(v) the Owner Trustee shall not be required, either
in its individual capacity or in its capacity as trustee, to perform any
obligation or duty under this Agreement, the Indenture, the Servicing Agreement
or any other Transaction Document which is to be performed by any party other
than the Trust or the Owner Trustee and shall have no liability for the acts or
omissions of such party.
(d) The Owner Trustee shall not be required to advance, expend
or risk its own funds or otherwise incur financial liability in the performance
of any of its duties under this Agreement, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) All information obtained by the Owner Trustee regarding
the Obligors and the Leases contained in the 1999-A SUBI, whether upon the
exercise of its rights under this Agreement or any other Transaction Document,
shall be maintained by the Owner Trustee in confidence and shall not be
disclosed to any other Person, unless such disclosure is required by any
applicable law or regulation or pursuant to subpoena.
Section 6.02. Certain Matters Affecting the Owner Trustee.
Except as otherwise provided in Section 6.01:
(i) the Owner Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) the Owner Trustee may consult with counsel and
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by it under this Agreement
or any other Transaction Document in good faith and in accordance with such
Opinion of Counsel;
(iii) the Owner Trustee shall be under no obligation
to exercise any of the rights or powers vested in it, or to institute, conduct
or defend any litigation, at the request, order or direction of the Indenture
Trustee or the Transferor, unless the Noteholders, the Indenture Trustee or the
Transferor shall have offered to the Owner Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby;
(iv) the Owner Trustee shall not be personally liable
for any action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
41
(v) the Owner Trustee may execute any of the trusts
or powers under this Agreement or perform any duties under this Agreement either
directly or by or through agents or attorneys or a custodian;
(vi) the Owner Trustee, in the exercise or
administration of the trusts and powers hereunder and in the performance of any
duties or obligations hereunder may, at the expense of the Trust, employ agents,
attorneys, accountants and auditors and enter into agreements with any of them,
and the Owner Trustee will not be liable for the default or misconduct of any
such agents, attorneys, accountants or auditors if such agents, attorneys,
accountants or auditors have been selected by it with reasonable care; and
(vii) if, in performing its duties under this
Agreement, (i) the Owner Trustee is required to
decide between alternative courses of action or (ii) the Owner Trustee is unsure
of the application of any provision of this Agreement or any Transaction
Document, then the Owner Trustee may deliver a notice to the Transferor
requesting written instructions as to the course of action desired by it; and
any action taken by the Owner Trustee in reliance on such instructions shall be
full and complete authorization and protection; in the event that the Transferor
fails to provide such instruction within 10 days, or such shorter period as may
be specified in such written notice, the Owner Trustee may take or omit to take
such action as it deems to be appropriate, and shall have no liability for such
action or omission.
Section 6.03. Owner Trustee Not Liable for Notes, Transferor
Certificate or Leases.
The Owner Trustee shall make no representations as to the validity,
enforceability or sufficiency of this Agreement, the Indenture, the Notes, the
Transferor Certificate (other than the execution by the Owner Trustee on behalf
of the Trust of the Indenture, the Notes and the Transferor Certificate, and the
certificate of authentication on, the Transferor Certificate), or of the 1999-A
SUBI Interest or 1999-A SUBI Certificate. The Owner Trustee shall have no
obligation to perform any duty unless explicitly set forth in this Agreement or
directed pursuant to Section 6.17. The Owner Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of the Indenture, the Notes, the 1999-A SUBI Interest or 1999-A
SUBI Certificate or any 1999-A Lease, any ownership interest in any 1999-A
Leased Vehicle, or the maintenance of any such ownership interest, or for or
with respect to the efficacy of the Trust or its ability to generate the
payments to be distributed to the Noteholders or the Certificateholder under
this Agreement, including without limitation the validity of the assignment of
the 1999-A SUBI Interest or 1999-A SUBI Certificate to the Trust or of any
intervening assignment; the existence, condition, location and ownership of any
1999-A Lease or 1999-A Leased Vehicle; the existence and enforceability of any
physical damage or credit life or credit disability insurance; the existence and
contents of any 1999-A Lease or any computer or other record thereof; the
completeness of any 1999-A Lease; the performance or enforcement of any Lease;
the compliance by the Transferor with any covenant or the breach by the
Transferor of any warranty or representation made under this Agreement or in any
related document and the accuracy of any such warranty or representation; the
acts or omissions of the Transferor or the Servicer; or any action or failure to
act by the Owner Trustee taken at the instruction of the Servicer; provided,
however, that the foregoing shall not relieve the Owner Trustee of its
obligation to perform its duties under this Agreement. Except with respect to a
claim based on the failure of the Owner Trustee to perform its duties under this
Agreement or based on the Owner Trustee's willful misconduct, bad faith or
negligence, no recourse shall be had for any claim based on any provision of
this Agreement, the Transferor Certificate, the 1999-A SUBI Interest or 1999-A
SUBI Certificate or assignment thereof against the institution serving as Owner
Trustee in its individual capacity. The Owner Trustee shall not have any
personal obligation, liability or duty whatsoever to any Noteholder, the
Indenture Trustee, the Transferor or any other Person with respect to any such
claim, and any such claim shall be asserted solely against the Trust or any
indemnitor who shall furnish indemnity as provided in this Agreement. The Owner
Trustee shall not be accountable for the use or application by the Transferor of
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any of the Notes or the Transferor Certificate or of the proceeds of the Notes
or the Transferor Certificate, or for the use or application of any funds paid
to the Servicer in respect of the 1999-A SUBI Interest or 1999-A SUBI
Certificate.
Section 6.04. Owner Trustee May Own Notes.
The Owner Trustee in its individual or any other capacity may become
the owner or pledgee of Notes with the same rights as it would have if it were
not Owner Trustee.
Section 6.05. Owner Trustee's Fees and Expenses.
The Owner Trustee shall be entitled to reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the execution of
the trusts created by this Agreement and in the exercise and performance of any
of the powers and duties of the Owner Trustee under this Agreement, and payment
or reimbursement upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Owner Trustee in its capacity as Owner Trustee
in accordance with any of the provisions of this Agreement (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all professional service providers or other persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence, willful misfeasance or bad faith or that is the responsibility of
the Indenture Trustee, the Noteholders or the Transferor under this Agreement or
any other Transaction Document. Such compensation and reimbursement shall be
paid as set forth in Section 3.03(b) hereof or Section 10.01 of the 1999-A SUBI
Supplement (in the definitions of the terms "Principal Collections" and
"Interest Collections"). Additionally, the Transferor, pursuant to Section
6.02(iii), may agree to indemnify the Owner Trustee under certain circumstances.
Section 6.06. Eligibility Requirements for Owner Trustee.
The Owner Trustee under this Agreement shall at all times be a national
banking association or corporation having its corporate trust office in the same
State as the location of the Corporate Trust Office of the Owner Trustee as
specified in this Agreement; and organized and doing business under the laws of
such State or the United States; authorized under such laws to exercise
corporate trust powers; having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authorities; and having a long-term deposit rating no lower than Baa3 by
Moody's, so long as ▇▇▇▇▇'▇ is a Rating Agency, or be otherwise acceptable to
each Rating Agency, as evidenced by a letter to such effect from each of them.
If the Owner Trustee 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 Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 6.07.
Section 6.07. Resignation or Removal of Owner Trustee.
(a) The Owner Trustee may at any time resign and be discharged
from the trusts created by this Agreement by giving written notice thereof to
the Transferor. Upon receiving such notice of resignation, the Transferor shall
promptly appoint a successor Owner Trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Owner Trustee
and one copy to the successor Owner Trustee. If no successor Owner Trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Owner Trustee may petition
any court of competent jurisdiction for the appointment of a successor Owner
Trustee.
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(b) If at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of Section 6.06 and shall fail to
resign after written request therefor by the Transferor, or if at any time the
Owner Trustee shall be legally unable to act, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Transferor may remove the Owner Trustee.
If it shall remove the Owner Trustee under the authority of the immediately
preceding sentence, the Transferor shall promptly appoint a successor Owner
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the Owner Trustee so removed and one copy to the successor Owner
Trustee, and payment of all fees owed to the outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section shall not become effective until acceptance of appointment by the
successor Owner Trustee as provided in Section 6.08. The Servicer shall give the
Indenture Trustee and each Rating Agency notice of any such resignation or
removal of the Owner Trustee and appointment and acceptance of a successor Owner
Trustee.
Section 6.08. Successor Owner Trustee.
Any successor Owner Trustee appointed as provided in Section 6.07 shall
execute, acknowledge and deliver to the Transferor and to its predecessor Owner
Trustee an instrument accepting such appointment under this Agreement, and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective and such successor Owner Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner Trustee shall deliver
to the successor Owner Trustee all documents and statements held by it under
this Agreement; and the Transferor and the predecessor Owner 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
Owner Trustee all such rights, powers, duties and obligations. No successor
Owner Trustee shall accept appointment as provided in this Section unless at the
time of such acceptance such successor Owner Trustee shall be eligible under the
provisions of Section 6.06. Upon acceptance of appointment by a successor Owner
Trustee as provided in this Section, the Servicer shall cause notice of the
successor of such Owner Trustee under this Agreement to be given by mail to the
Indenture Trustee and each Rating Agency. If the Servicer fails to mail or cause
to be mailed such notice within ten days after acceptance of appointment by the
successor Owner Trustee, the successor Owner Trustee shall cause such notice to
be mailed at the expense of the Servicer.
Section 6.09. Merger or Consolidation of Owner Trustee.
Any corporation (i) into which the Owner Trustee may be merged or
consolidated, (ii) which may result from any merger, conversion, or
consolidation to which the Owner Trustee shall be a party, or (iii) which may
succeed to the corporate trust business of the Owner Trustee, shall be the
successor of the Owner Trustee hereunder, provided such corporation shall be
eligible pursuant to Section 6.06, 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, except that if the Owner Trustee in any
of the foregoing cases is not the surviving entity, then the surviving entity
shall execute an agreement of assumption to perform every obligation of the
Owner Trustee, either generally or particularly as provided herein. Notice of
any such event shall be given by the Owner Trustee to each Rating Agency.
Section 6.10. Appointment of Co-Trustee or Separate Owner Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust may at the time be located, the Transferor and the Owner
Trustee acting jointly shall have the power and shall execute and deliver all
44
instruments to appoint one or more Persons approved by the Owner Trustee to act
as co-trustee, jointly with the Owner 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 Noteholders and the Transferor
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 Transferor and the Owner Trustee may consider necessary or
desirable. If the Transferor shall not have joined in such appointment within 15
days after the receipt by it of a request so to do, the Owner Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor Owner Trustee pursuant to Section 6.06 and no notice of a successor
Owner Trustee pursuant to Section 6.08 and no notice to Noteholders or the
Indenture Trustee of the appointment of any co-trustee or separate trustee shall
be required pursuant to Section 6.08.
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 the Owner Trustee shall be conferred upon and
exercised or performed by the Owner 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 Owner 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 Owner 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 Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) the Transferor and the Owner 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 Owner 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 this Agreement and
the conditions of this Section. 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 Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Transferor and the Servicer.
Any separate trustee or co-trustee may at any time appoint the Owner
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 this
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
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee. Notwithstanding anything to the contrary in this
Agreement, the appointment of any separate trustee or co-trustee shall not
relieve the Owner Trustee of its obligations and duties under this Agreement.
Section 6.11. Representations and Warranties of Owner Trustee.
The Owner Trustee makes the following representations and warranties on
which the Transferor and the Noteholders may rely:
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(i) Organization and Good Standing. The Owner Trustee
is a Delaware banking corporation organized, existing and in good standing under
the laws of the State of Delaware.
(ii) Power and Authority. The Owner Trustee has full
power, authority and right to execute,
deliver and perform this Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement.
(iii) Due Execution. This Agreement has been duly
executed and delivered by the Owner Trustee.
(iv) Enforceability. This Agreement constitutes the
legal, valid and binding obligation of the
Owner Trustee, enforceable against it in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting enforcement of creditors' rights
generally and by general principles of equity.
Section 6.12. Tax Returns.
The Servicer shall on behalf of the Trust, the Owner Trustee and the
Transferor, prepare or shall cause to be prepared any required federal tax
information returns (in a manner consistent with the treatment of the Notes as
indebtedness) and the Owner Trustee shall file and distribute such forms as
required by law in accordance with the Servicer's instructions. If and to the
extent the Trust is treated as a partnership for federal income tax purposes,
the Servicer shall prepare or cause to be prepared any federal and state income
tax returns that may be required with respect to the Trust or the Trust assets
and shall deliver any such returns to the Owner Trustee for signature by the
Transferor at least five days prior to the date such returns are required by law
to be filed.
Section 6.13. Owner Trustee May Enforce Claims Without Possession
of Transferor Certificate.
All rights of action and claims under this Agreement or the Transferor
Certificate may be prosecuted and enforced by the Owner Trustee without the
possession of the Transferor Certificate or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Owner
Trustee shall be brought in its own name as trustee. Any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Owner Trustee, its agents and counsel, be for
the ratable benefit of the Noteholders and the Certificateholder in respect of
which such judgment has been obtained.
Section 6.14. Suit for Enforcement.
If a 1999-A Servicer Event of Default shall occur and be continuing
under the Servicing Agreement, as supplemented by the 1999-A Servicing
Supplement with respect to the 1999-A SUBI Portfolio, or if the RV Insurer shall
have failed to comply with its obligations to the Indenture Trustee or the Owner
Trustee as an insured party under the Residual Value Insurance Policy, the
Indenture Trustee or the Owner Trustee, in its discretion may, subject to the
provisions of Sections 6.01 and 6.02 hereof, and Section 11.01(b) of the 1999-A
Servicing Supplement (with respect to the Servicer), and the terms of the
Residual Value Insurance Policy (with respect to the RV Insurer) proceed to
protect and enforce its rights and the rights of the Noteholders and
Certificateholder under this Agreement, the Servicing Agreement and the
Servicing Supplement, or the Residual Value Insurance Policy, as applicable, by
a suit, action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained herein or therein or
in aid of the execution of any power granted herein or therein or for the
enforcement of any other legal, equitable or other remedy as the Indenture
Trustee or the Owner Trustee, being advised by counsel, shall deem most
effectual to protect and enforce any of the rights of the Indenture Trustee or
the Owner Trustee or the Noteholders and Certificateholder.
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Section 6.15. Rights of Indenture Trustee to Direct Owner Trustee.
The Indenture Trustee (and, after payment in full of the Notes, the
Transferor) shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Owner Trustee under
this Agreement, or exercising any trust or power conferred on the Owner Trustee
by this Agreement; provided, however, that (a) subject to Sections 6.01 and
6.02, the Owner Trustee shall have the right to decline to follow any such
direction if the Owner Trustee being advised by counsel determines that the
action so directed may not lawfully be taken, or if the Owner Trustee in good
faith shall, by a Responsible Officer, determine that the proceedings so
directed would be illegal or subject it to personal liability and (b) nothing in
this Agreement shall impair the right of the Owner Trustee to take any action
deemed proper by the Owner Trustee and which is not inconsistent with such
direction by the Indenture Trustee (and, after payment in full of the Notes, the
Transferor).
Section 6.16. No Petition.
Each of the Owner Trustee and the Indenture Trustee covenants and
agrees that prior to the date which is one year and one day after the last date
upon which (a) each Class of Notes has been paid in full, and (b) all
obligations due under any other Securitized Financing have been paid in full,
neither the Owner Trustee nor the Indenture Trustee will institute against, or
join any other Person in instituting against (i) ALF LP, the Transferor or any
other Special Purpose Affiliate, (ii) ALF LLC, World Omni Lease Securitization
or any other general partner of a Special Purpose Affiliate that is a
partnership, (iii) any manager (other than WOFCO) of a limited liability company
that is a general partner of a Special Purpose Affiliate that is a partnership
or that itself is a Special Purpose Affiliate, or (iv) the Origination Trustee
or the Origination Trust, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any federal or
state bankruptcy or similar law. This Section shall survive the termination of
this Agreement or the resignation or removal of the Owner Trustee or the
Indenture Trustee under this Agreement or the Indenture, respectively.
Section 6.17. Authority to Execute.
The Transferor hereby authorizes and directs the Owner Trustee (i) to
execute and deliver, on behalf of the Trust, the Indenture, the Notes, the
Transferor Certificate and any other document as the Transferor or the Indenture
Trustee may from time to time direct, (ii) to execute and deliver all other
documents contemplated by the documents referred to in clause (i) above, and
(iii) subject to the terms of this Agreement, to take such other actions in
connection with the foregoing as the Transferor, the Servicer or the Indenture
Trustee may from time to time direct.
Section 6.18. Management of the Trust
The business and affairs of the Trust shall be managed by the Owner
Trustee at the direction of the Transferor, the Servicer and the Indenture
Trustee.
ARTICLE SEVEN. TERMINATION
Section 7.01. Termination of the Trust.
The Trust and the respective obligations and responsibilities of the
Transferor, the Indenture Trustee and the Owner Trustee shall terminate upon the
earliest of (i) the purchase as of any Distribution Date by the Transferor of
the corpus of the Trust as described in Section 7.02 (ii) the day following the
Distribution Date upon which all Notes have been paid in full and after which
there is no unreimbursed Class A-1 Uncovered Loss Amount, Class A-2 Uncovered
Loss Amount, Class A-3 Uncovered Loss Amount, Class A-4 Uncovered Loss Amount,
Class B Uncovered Loss Amount, Class A-1 Uncovered Loss Interest Amount, Class
A-2 Uncovered Loss Interest Amount, Class A-3 Uncovered Loss Interest Amount,
Class A-4 Uncovered Loss Interest Amount, Class B Uncovered Loss Interest
47
Amount, Class B Note Principal Carryover Shortfall or Class B Note Principal
Carryover Shortfall Interest Amount or (iii) the expiration, disposition or
termination of the 1999-A SUBI Interest; provided, however, that in no event
shall the trust created by this Agreement continue beyond the expiration of 21
years from the death of the last survivor of the descendants of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of the State of Arkansas, living on the date of the Agreement.
The Transferor shall promptly notify the Owner Trustee and each Rating Agency of
any prospective termination of the Trust.
Section 7.02. Optional Purchase of the 1999-A SUBI Interest.
(a) On each Distribution Date as of which the Note Balance
shall be less than or equal to ten percent (10%) of the Initial Note Balance,
either before or after giving effect to any payment of principal required to be
made on such Distribution Date, the Transferor shall have the option to purchase
the corpus of the Trust. To exercise such option, the Transferor shall notify
the Indenture Trustee, the Owner Trustee and the Servicer, in writing, no later
than the third Business Day of the month in which such purchase is to be
effected and shall deposit in the Distribution Account an amount equal to the
greater of (i) the Aggregate Net Investment Value as of the last day of the
related Collection Period, and (ii) the sum of (A) the Note Balance, (B) the
accrued and unpaid Class A-1 Interest Distributable Amount, Class A-2 Interest
Distributable Amount, Class A-3 Interest Distributable Amount, Class A-4
Interest Distributable Amount and Class B Interest Distributable Amount, (C) any
accrued and unpaid Class A-1 Interest Carryover Shortfall, Class A-2 Interest
Carryover Shortfall, Class A-3 Interest Carryover Shortfall, Class A-4 Interest
Carryover Shortfall and Class B Interest Carryover Shortfall, (D) any unpaid
Class A-1 Uncovered Loss Amount, unpaid Class A-2 Uncovered Loss Amount, unpaid
Class A-3 Uncovered Loss Amount, unpaid Class A-4 Uncovered Loss Amount, unpaid
Class B Uncovered Loss Amount and unpaid Class B Note Principal Carryover
Shortfall, and (E) any accrued and unpaid Class A-1 Uncovered Loss Interest
Amount, accrued and unpaid Class A-2 Uncovered Loss Interest Amount, accrued and
unpaid Class A-3 Uncovered Loss Interest Amount, accrued and unpaid Class A-4
Uncovered Loss Interest Amount, accrued and unpaid Class B Uncovered Loss
Interest Amount and accrued and unpaid Class B Note Principal Carryover
Shortfall Interest Amount through the day preceding the final Distribution Date.
The Transferor also shall pay to the Servicer the aggregate amount of any
unreimbursed Advances. Thereupon the Transferor shall succeed to all of the
Trust corpus.
(b) The corpus of the Trust may only be purchased pursuant to
this Section 7.02 if the Indenture Trustee and each Rating Agency receives an
Opinion of Counsel from the Transferor's counsel to the effect that such
purchase would not constitute a fraudulent conveyance, or each Rating Agency is
otherwise satisfied (as evidenced by written notice from each to the Indenture
Trustee).
ARTICLE EIGHT. EARLY AMORTIZATION EVENTS
Section 8.01. Early Amortization Events.
If any one of the following events shall occur during the Revolving
Period:
(a) failure on the part of the Servicer (i) to make any
payment or deposit required with respect to the 1999-A SUBI, the 1999-A SUBI
Interest, or the Notes under this Agreement, the Origination Trust Agreement or
the 1999-A SUBI Supplement, or the Servicing Agreement or the 1999-A Servicing
Supplement, on or before the date occurring five Business Days after the payment
or deposit is required to be made, or (ii) to deliver a Servicer's Certificate
within ten Business Days after any Determination Date;
(b) failure on the part of the Transferor or the Servicer duly
to observe or perform in any material respect any other covenants or agreements
of the Transferor or the Servicer set forth in this Agreement, the Origination
Trust Agreement or the 1999-A SUBI Supplement, or the Servicing Agreement or the
1999-A Servicing Supplement, which failure materially and adversely affects the
48
rights of the holder of the 1999-A SUBI Interest or of the Notes and which
continues unremedied and continues to affect materially and adversely the rights
of the holder of the 1999-A SUBI Interest or of the Notes for a period of 60
days after the date on which written notice of such failure, requiring the same
to be remedied, is given (i) to the Transferor or the Servicer, as the case may
be, by the Indenture Trustee, Owner Trustee or the Origination Trustee, or (ii)
to the Transferor or the Servicer, as the case may be, and to the Indenture
Trustee by the Holders of Notes evidencing not less than 25% of the aggregate
Percentage Interest;
(c) any representation or warranty made by ALF LP in the SUBI
Certificate Agreement, by the Transferor in this Agreement, or the
representation and warranty made by the Servicer in Section 8.01(c) of the
1999-A Servicing Supplement or any certificate given pursuant to Section 8.02(b)
of the 1999-A Servicing Supplement, shall prove to have been incorrect in any
material respect when made or given, as a result of which the interests of the
holder of the 1999-A SUBI Interest or of the Noteholders are materially and
adversely affected and which continues to be incorrect in any material respect
and continues to affect materially and adversely affect the interests of the
holder of the 1999-A SUBI Interest or of the Noteholders for a period of 60 days
after the date on which written notice of such failure, requiring the same to be
remedied, is given (i) to ALF LP, the Transferor or the Servicer, as the case
may be, by the Indenture Trustee, Owner Trustee or the Origination Trustee, or
(ii) to ALF LP, the Transferor or the Servicer, as the case may be, and to the
Indenture Trustee by the Holders of Notes evidencing not less than 25% of the
aggregate Percentage Interest; provided, however, that an Early Amortization
Event pursuant to this subparagraph (b) shall not be deemed to have occurred
hereunder if the Servicer has made the deposit contemplated by Section 8.03 of
the 1999-A Servicing Supplement and has reallocated the relevant 1999-A Lease
and 1999-A Leased Vehicle to the UTI Portfolio within the time provided
therefor;
(d) the Transferor shall file a petition commencing a
voluntary case under any chapter of the Federal bankruptcy laws; or the
Transferor shall file a petition or answer or consent seeking reorganization,
arrangement, adjustment, or composition under any other similar applicable
Federal law, or shall consent to the filing of any such petition, answer, or
consent; or the Transferor shall appoint, or consent to the appointment of a
custodian, receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of it or of any substantial part of
its property, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due;
(e) any order for relief against the Transferor shall have
been entered by a court having jurisdiction in the premises under any chapter of
the Federal bankruptcy laws; or a decree or order by a court having jurisdiction
in the premises shall have been entered approving as properly filed a petition
seeking reorganization, arrangement, adjustment, or composition of the
Transferor under any other similar applicable Federal law; or a decree or order
of a court having jurisdiction in the premises for the appointment of a
custodian, receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of the Transferor or of any
substantial part of its property, or for the winding up or liquidation of its
affairs, shall have been entered;
(f) any Lien, other than Liens permitted under this Agreement,
the Indenture, the Origination Trust Agreement or the 1999-A SUBI Supplement,
the Servicing Agreement or the 1999-A Servicing Supplement, or the Backup
Security Agreement, shall be created on or extend to or otherwise arise upon or
burden the 1999-A SUBI Interest, the 1999-A SUBI Certificate, or the 1999-A
Leases or 1999-A Leased Vehicles, or any part thereof or any interest therein or
the proceeds thereof, and not be released or bonded over within 60 days
thereafter;
(g) the Transferor, the Trust or the Origination Trust shall
become subject to registration as an "investment company" under the Investment
Company Act;
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(h) on the twenty-fifth calendar day of any calendar month
(commencing September 25, 1999) the aggregate amount of Principal Collections
(and amounts treated as Principal Collections pursuant to the last sentence of
Section 3.03(b)) collected through the last day of the related Collection Period
that have not been reinvested in new 1999-A Leases and 1999-A Leased Vehicles,
as contemplated by Section 11.02 of the 1999-A SUBI Supplement, exceeds
$[______________];
(i) a 1999-A Servicer Event of Default has occurred;
(j) an Indenture Event of Default has occurred;
(k) on any Distribution Date the aggregate amount withdrawn
from the Reserve Fund and deposited in the Distribution Account on or prior to
such Distribution Date (without reference to any subsequent deposits to the
Reserve Fund from any source) exceeds $[__________];
(l) any 1999-A Leased Vehicle shall no longer be covered by
(i) the Residual Value Insurance Policy, (ii) one or more policies with
substantially similar coverage and provisions issued by an insurer acceptable to
each Rating Agency (as evidenced by a letter from each to the effect that such
change would not result in its then-current rating of any Rated Securities being
qualified, reduced or withdrawn); provided that the Origination Trustee, the
Indenture Trustee and the Owner Trustee shall at all times have the same rights
with respect to any replacement policy as with respect to the original policy,
or (iii) any alternative mechanism to support the Booked Residual Value of such
1999-A Leased Vehicle that has been approved in accordance with the procedures
set forth in Section 9.01 for the amendment hereof; or
(m) the failure of the Class A Cap Provider to make a required
payment within five calendar days of the date such payment was due,
then (but in the case of any event described in subparagraph (a), (b), (c), (f),
(g) or (m) after any applicable grace period) an early amortization event (an
"Early Amortization Event") shall have occurred.
ARTICLE NINE. MISCELLANEOUS PROVISIONS
Section 9.01. Amendment.
(a) This Agreement and the other Transaction Documents may be
amended by the respective parties thereto, without the consent of any of the
Noteholders, to cure any ambiguity, to correct or supplement any provisions
herein or therein, to add, change or eliminate any other provisions hereof or
thereof with respect to matters or questions arising hereunder or thereunder
that shall not be inconsistent with the provisions hereof or thereof, or to add
or amend any provision therein in connection with permitting transfers of the
Class B Notes; provided, however, that any such action shall not, in the good
faith judgment of the parties hereto or thereto, adversely affect in any
material respect the interests of the Noteholders, and the Origination Trustee
and the Indenture Trustee shall have received an Opinion of Counsel to the
effect that such action shall not affect the legal interests or positions of the
Noteholders.
(b) This Agreement and the other Transaction Documents may
also be amended from time to time by the respective parties hereto or thereto
including with respect to (i) changing the formula for determining the Reserve
Fund Cash Requirement, the Reserve Fund Supplemental Requirement, the RV Insurer
Reserve Fund Supplemental Requirement and/or the Downgrade Reserve Fund
Supplemental Requirement (including changing the Reserve Fund Tests) which
change would result in a decrease in the amount of the Reserve Fund Cash
Requirement, the Reserve Fund Supplemental Requirement, the RV Insurer Reserve
Fund Supplemental Requirement and/or the Downgrade Reserve Fund Supplemental
Requirement, (ii) changing the manner by which the Reserve Fund is funded, which
50
changes could include borrowings by the Transferor to fund all or a portion of
the Reserve Fund Initial Deposit (which borrowings would be payable from assets
or cash flow otherwise payable to the Transferor), (iii) changing the remittance
schedule for collection deposits in the Distribution Account, (iv) changing the
definition of "Permitted Investments", or (v) replacing the Residual Value
Insurance Policy with an alternate mechanism to support the Booked Residual
Value of the 1999-A Leased Vehicles and Early Termination Amounts, if either (A)
the Indenture Trustee has been furnished with written confirmation from each
Rating Agency to the effect that such amendment would not cause its then-current
rating of any Rated Securities to be qualified, reduced or withdrawn, or (B) the
Indenture Trustee has received the consent of the Holders of Notes representing
more than 50% of the aggregate Percentage Interests, acting as a single Class
(which consent of any Holder of a Note given pursuant to this Section or
pursuant to any other provision of this Agreement shall be conclusive and
binding on such Holder and on all future Holders of such Note and of any Note
issued upon the transfer thereof or in exchange thereof or in lieu thereof
whether or not notation of such consent is made upon the Note); provided,
however, that: (1) any amendment (x) eliminating the Reserve Fund or the
Residual Value Insurance Policy, (y) reducing the Reserve Fund Cash Requirement
to less than the lesser of the Reserve Fund Initial Deposit and the Note Balance
as of the related Distribution Date (after giving effect to reductions in the
Note Balance on such Distribution Date), or (z) eliminating or reducing the RV
Insurer Reserve Fund Supplemental Requirement, shall also require that the
Indenture Trustee and each Rating Agency receive an Opinion of Counsel to the
effect that, after such amendment, for Federal income tax purposes the Class A
Notes will properly be characterized as indebtedness that is secured by the
assets of the Trust; (2) with respect to an amendment replacing the Residual
Value Insurance Policy with an alternate mechanism, the Servicer also shall have
provided to the Indenture Trustee and the Origination Trustee an Officer's
Certificate to the effect that the 1999-A Leases may properly be treated as
finance leases for purposes of generally accepted accounting principles,
consistently applied, by virtue of some reason other than maintenance of that
policy, and describing such reasons (which shall be in accordance with generally
accepted accounting principles, consistently applied); and (3) no such amendment
shall (y) except as otherwise provided in Section 9.01(a), increase or reduce in
any manner the amount of, or accelerate or delay the timing of, collections of
payments on the 1999-A SUBI or any 1999-A SUBI Certificate or distributions that
shall be required to be made on any Note or the applicable Note Rate or (z)
reduce the aforesaid percentage of the aggregate Percentage Interest of the
Notes of each Class required to consent to any such amendment, without the
consent of the Holders of all Notes of such Class then outstanding.
(c) The Indenture Trustee shall provide each Rating Agency
prior notice of any proposed amendment hereto and copies of an Opinion of
Counsel, if relevant, whether or not such amendment requires its approval. Any
notice of any such amendment or modification as to which notice is required to
be given to any Rating Agency shall contain both the substance and substantial
form of the proposed amendment or modification.
(d) Promptly after the execution of any such amendment or
consent, the Indenture Trustee shall furnish written notification of the
substance of such amendment or consent to each Noteholder. It shall not be
necessary for the consent of Noteholders pursuant to Section 9.01(b) 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 of evidencing the authorization by Noteholders of
the execution thereof shall be subject to such reasonable requirements as the
Indenture Trustee may prescribe.
(e) Prior to the execution of any amendment to this Agreement,
the Indenture Trustee and the Owner 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 this Agreement. The Indenture Trustee and the Owner
Trustee may, but shall not be obligated to, enter into any such amendment which
affects such Trustee's own rights, duties or immunities under this Agreement or
otherwise.
51
Section 9.02. Protection of Title to Trust.
(a) The Transferor shall execute and file, or cause to be
executed and filed, such financing statements and such continuation and other
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 Noteholders and the
Owner Trustee under this Agreement in the 1999-A SUBI Interest, the 1999-A SUBI
Certificate and in the proceeds thereof. The Transferor shall deliver (or cause
to be delivered) to the Owner Trustee file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available following such
filing.
(b) The Transferor shall not change its name, identity or
partnership structure in any manner that would, could or might make any
financing statement or continuation statement filed by the Transferor in
accordance with paragraph (a) above seriously misleading within the meaning of
Section 9-402(7) of the UCC, unless it shall have given the Owner Trustee
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) The Transferor shall give the Owner Trustee 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 make any such filing.
(d) The Transferor shall deliver to the Owner Trustee promptly
after the execution and delivery of each amendment to this Agreement, an Opinion
of Counsel either (i) stating that, in the opinion of such Counsel, all
financing statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the Owner
Trustee in the 1999-A SUBI Interest, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are given, or (ii)
stating that, in the opinion of such Counsel, no such action is necessary to
preserve and protect such interest.
(e) The Transferor shall, to the extent required by applicable
law, cause the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes and Class A-4
Notes to be registered with the Commission pursuant to Section 12(b) or Section
12(g) of the Exchange Act within the time periods specified in such Sections.
(f) This Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and all of which counterparts shall constitute but one and the same
instrument.
Section 9.03. Limitation on Rights of Transferor.
The incapacity, bankruptcy or insolvency of the Transferor shall not
operate to terminate this Agreement or the Trust, nor entitle the Transferor'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 (except to the extent set forth herein or in the other
Transaction Documents) the rights, obligations and liabilities of the parties to
this Agreement, the other Transaction Documents or any of them.
Section 9.04. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT THAT THE GRANT OF A SECURITY
INTEREST IN ANY ACCOUNT AND THE FUNDS AND PROPERTY THEREIN AND THE PERFECTION,
EFFECT OF PERFECTION, AND PRIORITY OF SUCH SECURITY INTEREST SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
52
Section 9.05. Notices.
All demands, notices and communications under this 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 (i) in the
case of the Transferor, to the agent for service as specified in this Agreement,
or at such other address as shall be designated by the Transferor in a written
notice to the Owner Trustee and the Indenture Trustee; (ii) in the case of the
Indenture Trustee, at the Corporate Trust Office of the Indenture Trustee; (iii)
in the case of the Owner Trustee, at the Corporate Trust Office of the Owner
Trustee; (iv) in the case of Standard & Poor's, at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Surveillance Department; (v) in
the case of ▇▇▇▇▇'▇, at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention:
ABS Monitoring Department; and (vi) in the case of Fitch, at Fitch Information
Services, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Asset Backed
Surveillance. Any notice required or permitted to be mailed to a Noteholder
shall be given as provided in Section 1.05 of the Indenture. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Noteholder shall receive
such notice.
Section 9.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Securities or the rights of the Holders thereof.
Section 9.07. Assignment.
Notwithstanding anything to the contrary contained in this Agreement,
except as provided in Section 5.03, this Agreement may not be assigned by the
Transferor without the prior written consent of Holders of Notes evidencing more
than 50% of the aggregate Percentage Interests (acting as a single Class). The
Transferor shall provide a copy of any such assignment to each Rating Agency.
Section 9.08. Transferor Certificate Nonassessable and Fully Paid.
Except as provided in Section 5.02(b) with regard to the Transferor,
the Transferor shall not be personally liable for obligations of the Trust. The
interest represented by the Transferor Certificate shall be nonassessable for
any losses or expenses of the Trust or for any reason whatsoever, and, upon the
execution and authentication thereof by the Owner Trustee pursuant to Section
4.02, 4.03 or 4.04, the Transferor Certificate is and shall be deemed fully
paid.
Section 9.09. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Further,
all references herein to Persons or entities other than parties hereto shall be
deemed to refer to the successors and permitted assigns of such persons, to the
extent that such construction is reasonably possible; to the extent that such
construction is not reasonably possible, the parties hereto shall amend this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner.
ARTICLE TEN. AGENT FOR SERVICE
Section 10.01. Agent for Service of Transferor.
The agent for service of process for the Transferor shall be its
Treasurer, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
53
Section 10.02. Agent of Owner Trustee.
The Owner Trustee shall maintain an office or offices or agency or
agencies where notices and demands to or upon the Owner Trustee in respect of
the Transferor Certificate and this Agreement may be served. The initial such
office shall be the Corporate Trust Office. The Owner Trustee shall give prompt
written notice to the Transferor, the Servicer and the Indenture Trustee of any
change in the location of any such office or agency.
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54
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
WORLD OMNI LEASE SECURITIZATION L.P., as Transferor
By: World Omni Lease Securitization LLC, its general
partner
By:
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Assistant Treasurer
CHASEMANHATTAN BANK DELAWARE, not in its
individual capacity except as expressly provided
herein, but solely as Owner Trustee
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, not in its
individual capacity except as expressly provided
herein, but solely as Indenture Trustee
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
55
EXHIBIT A
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE APPLICABLE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE RESOLD OR TRANSFERRED.
WORLD OMNI 1999-A AUTOMOBILE LEASE SECURITIZATION TRUST
AUTOMOBILE LEASE ASSET BACKED TRANSFEROR CERTIFICATE
evidencing the undivided equity interest in the Trust, as defined
below, the property of which includes, among other things, a 100%
interest in a special unit of beneficial interest in World Omni LT, an
Alabama business trust, which special unit of beneficial interest
represents a beneficial interest in a pool of retail lease contracts
for new and used automobiles and light duty trucks (and the related
automobiles and light-duty trucks) entered into by various automobile
and light duty truck dealers pursuant to contractual arrangements with
World Omni Financial Corp. and thereafter assigned to World Omni LT,
and which interest was originally issued to Auto Lease Finance L.P.,
and then sold to World Omni Lease Securitization L.P., and then to the
Trust.
(This Certificate does not represent an obligation of, or an interest
in, Auto Lease Finance, Inc., World Omni Lease Securitization LLC,
World Omni LT, World Omni Financial Corp., or any of their respective
affiliates.)
THIS CERTIFIES THAT WORLD OMNI LEASE SECURITIZATION L.P. (the
"Transferor") is the registered owner of the undivided equity interest in the
World Omni 1999-A Automobile Lease Securitization Trust (the "Trust") formed by
the Transferor. The Trust was created pursuant to a Securitization Trust
Agreement dated as of August 1, 1999 (the "Agreement"), among the Transferor,
Chase Manhattan Bank Delaware, a Delaware banking corporation, as trustee (the
"Owner Trustee"), and ▇▇▇▇▇▇ Trust and Savings Bank, as indenture trustee (the
"Indenture Trustee"). A summary of certain of the pertinent provisions of the
Agreement 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 the Transferor Certificate issued under the
Agreement and designated as the "World Omni 1999-A Automobile Lease
Securitization Trust Automobile Lease Asset Backed Transferor Certificate" (the
"Transferor Certificate"). This Transferor Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Transferor Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
The property of the Trust includes, among other things, a 100% interest
in a special unit of beneficial interest (the "1999-A SUBI Interest") in World
Omni LT, an Alabama business trust (the "Origination Trust"), which 1999-A SUBI
Interest represents a beneficial interest in, among other things, a pool of
retail automobile and light duty truck lease contracts ("Leases") and the new
and used automobiles and light duty trucks leased thereby ("Leased Vehicles")
(such pool of Leases and Leased Vehicles, the "1999-A SUBI Portfolio") entered
into by various automobile and light duty truck dealers pursuant to contractual
arrangements with World Omni Financial Corp., which also acts as servicer (in
that capacity, the "Servicer") of the 1999-A SUBI Portfolio. During the
Revolving Period, Principal Collections allocable to the 1999-A SUBI Interest
generally will be applied towards the allocation to the 1999-A SUBI Portfolio of
additional qualifying Leases and Leased Vehicles from among all other
unallocated Leases and Leased Vehicles owned by the Origination Trust.
A-1
Payments in respect of the 1999-A SUBI Interest will be allocated
between the Notes and this Transferor Certificate and paid to the registered
Holder of this Transferor Certificate as provided in the Agreement.
It is the intention of the Transferor, as the Holder of this
Certificate, that the Notes will be indebtedness for federal, state and local
income and franchise tax purposes and for purposes of any other tax imposed on
or measured by income. The Owner Trustee and the Transferor, as the Holder of
this Certificate, by acceptance of this Certificate, agree to treat the Notes,
for purposes of federal, state and local income or franchise taxes and any other
tax imposed on or measured by income, as indebtedness and to report the
transactions contemplated by the Agreement on all applicable tax returns in a
manner consistent with such treatment.
By accepting this Certificate, the Holder hereof waives any claim to
any proceeds or assets of the Origination Trustee and to all assets of the
Origination Trust other than those from time to time included within the 1999-A
SUBI Portfolio as 1999-A SUBI Assets and those proceeds or assets derived from
or earned by such 1999-A SUBI Assets.
In the event that, notwithstanding the statement of intentions and
undertakings set forth in Section 4.12(a) of the Agreement and herein, it is
finally determined that the Notes do not evidence indebtedness of the Transferor
for all income and franchise tax purposes, but rather represent an equity
interest in the assets of the Trust, then the Transferor, as Holder hereof,
agrees (i) to treat the Notes, together with this Certificate, as representing
an interest in a partnership for all tax purposes, (ii) to treat all payments in
respect of such Certificate (to the extent not a return of capital) as a
"guaranteed payment" thereon made pursuant to Section 707(c) of the Code, and
(iii) to allocate all other items of income, gain, deduction, loss or credit
with respect to the assets and operations of the Trust to the Transferor.
This Certificate does not represent an obligation of, or an interest
in, the Transferor, the Servicer, the Indenture Trustee, the Owner Trustee, the
Origination Trust or any of their respective affiliates. This Certificate is
limited in right of payment to certain collections and recoveries respecting the
1999-A SUBI Interest and the 1999-A SUBI Certificate, Insured Residual Value
Loss Amounts paid under the Residual Value Insurance Policy and certain monies
on deposit in the Reserve Fund and in certain other accounts, in each case to
the extent and as more specifically set forth in the Agreement. A copy of the
Agreement may be examined during normal business hours at the Corporate Trust
Office of the Owner Trustee, and at such other places, if any, designated by the
Owner Trustee, by the Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholder under the Agreement at
any time by the Transferor, the Servicer, the Indenture Trustee and the Owner
Trustee. In certain limited circumstances, the Agreement may only be amended
with the consent of the Holders of Notes evidencing more than 50% of the
aggregate Percentage Interests of all Notes, voting together as a single class.
As provided in the Agreement, this Certificate shall be owned by the
Transferor and may not be transferred.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Noteholders 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. The Transferor may at its
option purchase the corpus of the Trust at a price specified in the Agreement,
and such purchase of the 1999-A SUBI Interest and the 1999-A SUBI Certificate
and other property of the Trust will effect early retirement of this
Certificate; provided, however, such right of purchase is exercisable only on
A-2
the Distribution Date following the last day of a Collection Period as of which
the Note Balance shall be less than or equal to ten percent (10%) of the Initial
Note Balance.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Transferor Certificate shall not entitle the Holder hereof to any benefit
under the Agreement or be valid for any purpose.
A-3
IN WITNESS WHEREOF, the Owner Trustee on behalf of the Trust and not in
its individual capacity has caused this Transferor Certificate to be duly
executed.
Dated: September __, 1999 WORLD OMNI 1999-A AUTOMOBILE LEASE
SECURITIZATION TRUST
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity, but solely
as Owner Trustee
(SEAL) By:
----------------------------------
Authorized Officer
A-4
This is the Transferor Certificate referred
to in the within-mentioned Agreement.
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity, but solely
as Owner Trustee
By:
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A-5
EXHIBIT B
[FORM OF]
CERTIFICATE OF TRUST OF
WORLD OMNI 1999-A AUTOMOBILE LEASE SECURITIZATION TRUST
THIS Certificate of Trust of World Omni 1999-A Automobile Lease
Securitization Trust (the "Trust"), dated as of August 1, 1999 is being duly
executed and filed by Chase Manhattan Bank Delaware, a Delaware banking
corporation, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. Code, ss. 3801 et seq.).
1. Name. The name of the business trust formed hereby is WORLD OMNI
1999-A AUTOMOBILE LEASE SECURITIZATION TRUST.
2. Delaware Trustee. The name and business address of the trustee of
the Trust resident in the State of Delaware is Chase Manhattan Bank Delaware,
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
3. This Certificate of Trust will be effective ____________, 1999.
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
Chase Manhattan Bank Delaware,
a Delaware banking corporation, not in its
individual capacity, but solely as owner
trustee of the Trust.
By:
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Name:
---------------------------
Title:
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B-1