AMENDED AND RESTATED
TRUST SALE AND SERVICING AGREEMENT
AMONG
WORLD OMNI FINANCIAL CORP.
SERVICER
WODFI LLC
TRANSFEROR
AND
WORLD OMNI MASTER OWNER TRUST
TRUST
DATED AS OF APRIL 6, 2000
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS..............................................................................................1
SECTION 1.1 Definitions...........................................................1
ARTICLE II
CONVEYANCE OF RECEIVABLES................................................................................1
SECTION 2.1 Conveyance of Receivables.............................................1
SECTION 2.2 Acceptance by the Owner Trustee. ...................................3
SECTION 2.3 Representations and Warranties of the Transferor Relating to the
Transferor and the Agreement..........................................3
SECTION 2.4 Representations and Warranties of the Transferor Relating to the
Receivables. .......................................................5
SECTION 2.5 Addition of Accounts. ..............................................7
SECTION 2.6 Covenants of the Transferor..........................................10
SECTION 2.7 Removal of Eligible Accounts. ......................................10
SECTION 2.8 Removal of Ineligible Accounts. ...................................12
SECTION 2.9 Transfer of Ineligible Receivables...................................14
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES....................................................15
SECTION 3.1 Acceptance of Appointment and Other Matters Relating to the Servicer.15
SECTION 3.2 Servicing Compensation...............................................17
SECTION 3.3 Representations, Warranties and Covenants of the Servicer. ........17
SECTION 3.4 Reports and Records..................................................20
SECTION 3.5 Annual Servicer's Certificate........................................21
SECTION 3.6 Annual Independent Public Accountants' Servicing Report..............21
SECTION 3.7 Tax Treatment. .....................................................22
SECTION 3.8 Notices to World Omni. .............................................22
SECTION 3.9 Adjustments. ......................................................22
SECTION 3.10 Annual Servicing Transfer................................................23
ARTICLE IV ALLOCATION AND APPLICATION OF COLLECTIONS......................................................24
SECTION 4.1 [Reserved.]..........................................................24
SECTION 4.2 Establishment of Accounts............................................24
SECTION 4.3 Allocations and Applications of Collections and Other Funds..........25
SECTION 4.4 Excess Principal Collections.........................................26
SECTION 4.5 Excess Funding Account...............................................26
SECTION 4.6 Net Deposits.........................................................27
SECTION 4.7 New Issuances........................................................27
ARTICLE V
DISTRIBUTIONS AND REPORTS TO SECURITYHOLDERS............................................................28
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ARTICLE VI OTHER MATTERS RELATING TO THE SERVICER.........................................................28
SECTION 6.1 Liability of the Servicer. .........................................28
SECTION 6.2 Merger or Consolidation of, or Assumption of, the Obligations
of the Servicer. ...................................................28
SECTION 6.3 Limitation on Liability of the Servicer and Others. ................28
SECTION 6.4 Servicer Indemnification of the Trust, the Indenture Trustee and the Owner
Trustee..............................................................29
SECTION 6.5 The Servicer Not to Resign...........................................30
SECTION 6.6 Access to the Documentation and Information Regarding
the Receivables. ....................................................30
SECTION 6.7 Delegation of Duties. ..............................................31
SECTION 6.8 Examination of Records. ............................................31
SECTION 6.9 Additional Expenses. ...............................................31
ARTICLE VII SERVICING DEFAULTS.................................................................................31
SECTION 7.1 Servicing Defaults...................................................31
SECTION 7.2 Indenture Trustee to Act; Appointment of Successor...................33
SECTION 7.3 Notification to Securityholders......................................34
SECTION 7.4 Waiver of Past Defaults..............................................35
ARTICLE VIII MISCELLANEOUS PROVISIONS..........................................................................35
SECTION 8.1 Amendment. ........................................................35
SECTION 8.2 No Petition Covenant. ..............................................36
SECTION 8.3 GOVERNING LAW. .....................................................36
SECTION 8.4 Notices. ...........................................................36
SECTION 8.5 Severability of Provisions. ........................................37
SECTION 8.6 Assignment...........................................................37
SECTION 8.7 Further Assurances. ................................................37
SECTION 8.8 No Waiver; Cumulative Remedies. ....................................37
SECTION 8.9 Counterparts. ......................................................37
SECTION 8.10 Third-Party Beneficiaries. ............................................37
SECTION 8.11 Action by Owner Trustee. ..............................................37
SECTION 8.12 Merger and Integration. ...............................................38
SECTION 8.13 Headings. .............................................................38
SECTION 8.14 Exchange of Transferor Certificates. ..................................38
SECTION 8.15 Effect of Amendment and Restatement.....................................38
Exhibit A Form of Assignment of Receivables in Additional Accounts
Exhibit B Form of Annual Servicer's Certificate
Exhibit C Forms of Opinion of Counsel
Exhibit D Form of Reassignment of Receivables in Removed Accounts
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APPENDIX A Definitions and Rules of Construction
APPENDIX B Notice Addresses and Procedures
SCHEDULE 1 List of Accounts
SCHEDULE 2 Proceedings
SCHEDULE 3 List of Trust Accounts
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THIS TRUST SALE AND SERVICING AGREEMENT was originally made as
of November 22, 1999 (the "Original Trust Sale and Servicing Agreement"), and is
amended and restated effective April 6, 2000, by and among WORLD OMNI FINANCIAL
CORP., a Florida corporation, (the "Servicer"), WODFI LLC, a Delaware limited
liability company, (the "Transferor"), and World Omni Master Owner Trust, a
Delaware business trust (the "Trust").
In consideration of the mutual agreements herein contained,
each party agrees as follows for the benefit of the other parties and for the
benefit of the Certificateholders and the Beneficiaries to the extent provided
herein:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Certain capitalized terms in this
Agreement are defined in and shall have the respective meanings assigned to them
in Part I of Appendix A to this Agreement. All references herein to "the
Agreement" or "this Agreement" are to this Trust Sale and Servicing Agreement as
it may be amended, supplemented or modified from time to time, the exhibits
hereto and the capitalized terms used herein which are defined in Appendix A,
and all references herein to Articles, Sections and subsections are to Articles,
Sections or subsections of this Agreement unless otherwise specified. The rules
of construction set forth in Part II of Appendix A shall be applicable to this
Agreement.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1 Conveyance of Receivables. In consideration of the
Issuer's delivery to the Transferor of the Certificate, the Transferor does
hereby sell, transfer, assign, set over and otherwise convey, without recourse
(except as expressly provided herein), to the Trust for the benefit of the
Certificateholders and the other Beneficiaries on the Initial Closing Date, in
the case of the Initial Accounts, and on the applicable Addition Date, in the
case of Additional Accounts, (a) all of its right, title and interest in, to and
under the Receivables in each Account and all Collateral Security with respect
thereto owned by the Transferor at the close of business on the Initial Cut-Off
Date, in the case of the Initial Accounts, and on the applicable Additional
Cut-Off Date, in the case of Additional Accounts, and all monies due or to
become due thereon (including all interest accruing thereon after October 31,
1999, whether paid or payable) and all amounts received with respect thereto and
all proceeds of all of the foregoing (including "proceeds" as defined in Section
9-306 of the UCC as in effect in the applicable jurisdiction where either the
Transferor's or World Omni's chief executive offices or books and records
relating to the Receivables are located) and Recoveries thereof (including, with
respect to any Purchased Participation Receivables, all of the Transferors
rights, remedies, powers and privileges with respect to such Receivables under
the related participation agreement) and (b) all of the Transferor's rights,
remedies, powers and privileges with respect to such Receivables under the
Receivables Purchase Agreement. As of each Business Day, prior to the earlier of
(i) the occurrence of an Early Amortization Event specified in Section 5.17,
(b), (c), (d) or (e) of
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the Indenture and (ii) the Trust Termination Date, on which Receivables are
created in the Accounts (a "Transfer Date"), the Transferor does hereby sell,
transfer, assign, set over and otherwise convey, without recourse (except as
expressly provided herein), to the Trust for the benefit of the
Certificateholders and the Beneficiaries, all of its right, title and interest
in, to and under the Receivables in each Account (other than any Receivables
created in any Designated Accounts from and after the applicable Removal Date)
and all Collateral Security with respect thereto owned by the Transferor at the
close of business on such Transfer Date and not theretofore conveyed to the
Trust, all monies due or to become due and all amounts received with respect
thereto and all proceeds (including "proceeds" as defined in Section 9-306 of
the UCC as in effect in the applicable jurisdiction, and Recoveries) of all of
the foregoing. Such property, together with all monies on deposit in, and
Eligible Investments credited to, the Collection Account or any Series Account,
any Enhancements and the Collateral Security with respect to the Receivables
shall collectively constitute the assets of the Trust (the "Trust Assets"). The
foregoing sale, transfer, assignment, set-over and conveyance and any subsequent
sales, transfers, assignments, set-overs and conveyances do not constitute, and
are not intended to result in, the creation or an assumption by the Trust, the
Owner Trustee, the Indenture Trustee, any Agent or any Beneficiary of any
obligation of the Servicer, the Transferor, World Omni any other Originator or
any other Person in connection with the Accounts, the Receivables or any
Participation Interest or under any agreement or instrument relating thereto
(including any Participation Agreement), including any obligation to any
Dealers.
In connection with such sales, the Transferor agrees to record
and file, at its own expense, a financing statement on form UCC-1 or any other
applicable form (and continuation statements when applicable) with respect to
the Receivables now existing and hereafter created for the sale of chattel
paper, accounts and general intangibles (as defined in Sections 9-105 and 9-106
of the UCC as in effect in the applicable jurisdiction where either the
Transferor's or World Omni's chief executive offices or books and records
relating to the Receivables are located) meeting the requirements of applicable
law in such manner and in such jurisdictions as are necessary to perfect the
sale and assignment of the Receivables and the Collateral Security to the Trust,
and to deliver a file-stamped copy of such financing statements or other
evidence of such filing to the Owner Trustee on or prior to the Initial Closing
Date, in the case of the Initial Accounts, and (if any additional filing is so
necessary) the applicable Addition Date, in the case of Additional Accounts. The
Owner Trustee shall be under no obligation whatsoever to file such financing
statement, or a continuation statement to such financing statement, or to make
any other filing under the UCC in connection with such sales.
In connection with such sales, the Transferor further agrees,
at its own expense, on or prior to the Initial Closing Date, in the case of the
Initial Accounts, the applicable Addition Date, in the case of Additional
Accounts, and the applicable Removal Date, in the case of Removed Accounts, (a)
to cause the Servicer to indicate in its computer files as required by the
Receivables Purchase Agreement, that the Receivables created in connection with
the Accounts (other than Removed Accounts) have been sold, and the Collateral
Security assigned, to the Transferor in accordance with the Receivables Purchase
Agreement and sold to the Trust pursuant to this Agreement for the benefit of
the Certificateholders and the Beneficiaries and (b) to deliver to the Owner
Trustee and the Indenture Trustee (or cause World Omni to do so) a computer file
or microfiche or written list containing a true and complete list of all such
Accounts (other than
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Removed Accounts) specifying for each such Account, as of the Initial Cut-Off
Date, in the case of the Initial Accounts, and the applicable Additional Cut-Off
Date, in the case of Additional Accounts, (i) its account number and (ii) the
aggregate amount of Principal Receivables in such Account. Such file or list, as
supplemented from time to time to reflect Additional Accounts and Removed
Accounts, shall be marked as Schedule 1 to this Agreement and is hereby
incorporated into and made a part of this Agreement. Neither the Owner Trustee
nor the Indenture Trustee shall be under any obligation whatsoever to verify the
accuracy or completeness of the information contained in Schedule 1 from time to
time. In addition, in connection with such sales, the Transferor shall deliver
within 10 days after the Initial Closing Date in the case of the Initial
Accounts or the applicable Addition Date in the case of Additional Accounts to
the Owner Trustee all documents constituting "instruments" (as defined in the
UCC as in effect in the applicable jurisdiction) with such endorsements attached
as the Owner Trustee may reasonably require.
SECTION 2.2 Acceptance by the Owner Trustee. The Owner Trustee
hereby acknowledges its acceptance, on behalf of the Trust, of all right, title
and interest previously held by the Transferor to the property, now existing and
hereafter created, conveyed to the Trust pursuant to Section 2.1 and declares
that it shall maintain such right, title and interest, upon the trust herein set
forth, for the benefit of the Certificateholders and the Beneficiaries. The
Owner Trustee further acknowledges that, prior to or simultaneously with the
execution and delivery of this Agreement, the Transferor delivered to the Owner
Trustee (i) all documents evidencing the Receivables which constitute
"instruments" (as defined in the UCC as in effect in the applicable
jurisdiction) and (ii) the computer file or microfiche or written list relating
to the Initial Accounts described in the last paragraph of Section 2.1.
The Owner Trustee shall have no power to create, assume or
incur indebtedness or other liabilities in the name of the Trust other than as
contemplated in the Basic Documents.
SECTION 2.3 Representations and Warranties of the Transferor
Relating to the Transferor and the Agreement. The Transferor hereby represents
and warrants to the Trust, the Indenture Trustee and to the Owner Trustee as of
each Closing Date that:
(a) Organization and Good Standing. The Transferor is a
limited liability company duly formed and validly existing and in good standing
under the laws of the State of Delaware and has, in all material respects, full
power, authority and legal right to own its properties and conduct its business
as such properties are presently owned and such business is presently conducted,
and to execute, deliver and perform its obligations under this Agreement.
(b) Due Qualification. The Transferor is duly qualified to do
business and, where necessary, is in good standing as a foreign limited
liability company (or is exempt from such requirement) and has obtained all
necessary licenses and approvals in each jurisdiction in which the conduct of
its business requires such qualification except where the failure to so qualify
or obtain licenses or approvals would not have a material adverse effect on its
ability to perform its obligations hereunder.
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(c) Due Authorization. The execution and delivery of this
Agreement and the other Basic Documents and the consummation of the transactions
provided for or contemplated by this Agreement and the other Basic Documents by
the Transferor, have been duly authorized by the Transferor by all necessary
action on the part of the Transferor.
(d) No Conflict. The execution and delivery of this Agreement
and the other Basic Documents, the performance of the transactions contemplated
by this Agreement and the other Basic Documents and the fulfillment of the terms
hereof and thereof, will not conflict with, result in any breach of any of the
material terms and provisions of, or constitute (with or without notice or lapse
of time or both) a material default under, any indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which the Transferor is a party
or by which it or its properties are bound.
(e) No Violation. The execution and delivery of this
Agreement, the other Basic Documents, the performance of the transactions
contemplated by this Agreement and the other Basic Documents and the fulfillment
of the terms hereof and thereof applicable to the Transferor, will not conflict
with or violate any material Requirements of Law applicable to the Transferor.
(f) No Proceedings. There are no proceedings or, to the best
knowledge of the Transferor, investigations pending or threatened against the
Transferor before any Governmental Authority (i) asserting the invalidity of
this Agreement or the other Basic Documents, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement and the
other Basic Documents, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Transferor, would materially and adversely affect the
performance by the Transferor of its obligations under this Agreement and the
other Basic Documents, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this Agreement
and the other Basic Documents or (v) seeking to affect adversely the income tax
attributes of the Trust under the United States federal, or any other applicable
state, local or foreign jurisdiction's, income, single business or franchise tax
systems.
(g) All Consents Required. All appraisals, authorizations,
consents, orders, approvals or other actions of any Person or of any
governmental body or official required in connection with the execution and
delivery of this Agreement and the other Basic Documents, the performance of the
transactions contemplated by this Agreement and the other Basic Documents, and
the fulfillment of the terms hereof and thereof, have been obtained.
(h) Enforceability. This Agreement and the other Basic
documents each constitutes a legal, valid and binding obligation of the
Transferor enforceable against the Transferor in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights in general and except as
such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(i) Record of Accounts. As of the Initial Closing Date, in the
case of the Initial Accounts, as of the applicable Addition Date, in the case of
the Additional Accounts, and, as of the applicable Removal Date, in the case of
Removed Accounts, Schedule 1 to this Agreement is an
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accurate and complete listing in all material respects of all the Accounts as of
the Initial Cut-Off Date, the applicable Additional Cut-Off Date or the
applicable Removal Date, as the case may be, and the information contained
therein with respect to the identity of such Accounts and the Receivables
existing thereunder is true and correct in all material respects as of the
Initial Cut-Off Date, such applicable Additional Cut-Off Date or such Removal
Date, as the case may be.
(j) Valid Transfer. This Agreement or, in the case of
Additional Accounts, the related Assignment constitutes a valid sale, transfer
and assignment to the Trust of all right, title and interest of the Transferor
in the related Receivables and the Collateral Security and the proceeds thereof
and all of the Transferor's rights, remedies, powers and privileges with respect
to the Receivables under the Receivables Purchase Agreement and, upon the filing
of the financing statements described in Section 2.1 with the Secretary of State
in the applicable jurisdiction where either the Transferor's or World Omni's
chief executive offices or books and records relating to the Receivables are
located and, in the case of the Additional Receivables hereafter created and the
proceeds thereof, upon the creation thereof, the Trust shall have a first
priority perfected security interest in such property (except for Liens
permitted under Section 2.6(a)). Except as otherwise provided in this Agreement,
or the other Basic Documents, neither the Transferor nor any Person claiming
through or under the Transferor has any claim to or interest in the Trust
Assets.
The representations and warranties set forth in this Section
2.3 shall survive the transfer and assignment of the Receivables to the Trust.
Upon discovery by the Transferor, the Owner Trustee, the Indenture Trustee, the
Servicer, or any Agent of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other parties, any Agent and to any Enhancement Providers.
In the event the Noteholders of a Series shall have exercised
their right to have such Notes redeemed pursuant to Section 10.1(b) of the
Indenture as a result of any breach of any of the representations and warranties
set forth in this Section 2.3, the Transferor shall deposit into the applicable
Principal Funding Account in immediately available funds on the Business Day
preceding the Redemption Date, an amount equal to the sum of the amounts
specified therefor with respect to each outstanding Series in the related Series
Supplement. The obligation of the Transferor to make the deposit specified in
this Section 2.3 will constitute the sole remedy to the Trust, the Noteholders
(the Indenture Trustee on behalf of the Noteholders) or any other Person as a
result of the breach of the representations and warranties set forth in this
Section 2.3.
SECTION 2.4 Representations and Warranties of the Transferor
Relating to the Receivables.
(a) Representations and Warranties. The Transferor hereby
represents and warrants to the Trust that:
(i) Each Receivable and all Collateral Security
existing on the Initial Closing Date or, in the case of Additional
Accounts, on the applicable Addition Date, and on each Transfer Date,
has been conveyed to the Trust free and clear of any Lien (other than
the
5
Lien held by World Omni subject to Article VII of the Receivables
Purchase Agreement, Participation Interests and Purchased Participation
Receivables).
(ii) With respect to each Receivable and all
Collateral Security existing on the Initial Closing Date or, in the
case of Additional Accounts, on the applicable Addition Date, and on
each Transfer Date, all consents, licenses, approvals or authorizations
of or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by the Transferor in
connection with the conveyance of such Receivable or Collateral
Security to the Trust have been duly obtained, effected or given and
are in full force and effect.
(iii) On the Initial Cut-Off Date and each Closing
Date, each Initial Account is an Eligible Account and, in the case of
Additional Accounts, on the applicable Additional Cut-Off Date and each
subsequent Closing Date, each such Additional Account is an Eligible
Account.
(iv) On the Initial Closing Date, in the case of the
Initial Accounts, and, in the case of the Additional Accounts, on the
applicable Additional Cut-Off Date, and on each Transfer Date, each
Receivable conveyed to the Trust on such date is an Eligible Receivable
or, if such Receivable is not an Eligible Receivable, such Receivable
is conveyed to the Trust in accordance with Section 2.9.
(b) Notice of Breach. The representations and warranties set
forth in Section 2.4(a) shall survive the transfer and assignment of the
Receivables to the Trust and the pledge to the Indenture Trustee under the
Indenture. Upon discovery by the Transferor, the Owner Trustee, the Indenture
Trustee, the Servicer, or any Agent, of a breach of any of the representations
and warranties set forth in Section 2.4(a) the party discovering such breach
shall give prompt written notice to the other parties and to any Enhancement
Providers.
(c) Reassignment. In the event any representation or warranty
under Section 2.4(a) is not true and correct as of the date specified therein
with respect to any Receivable or Account and such breach has a material adverse
effect on the Noteholders, then, within 30 days (or such longer period as may be
agreed to in writing by the Indenture Trustee) of the earlier to occur of the
discovery of any such event by the Transferor or the Servicer, or receipt by the
Transferor or the Servicer of written notice of any such event given by the
Owner Trustee, the Indenture Trustee, any Agent or any Enhancement Providers,
the Transferor shall accept a reassignment of such Receivable or, in the case of
such an untrue representation or warranty with respect to an Account, all
Receivables in such Account, on the Determination Date immediately succeeding
the day of such discovery or notice on the terms and conditions set forth in the
next succeeding paragraph; provided, however, that no such reassignment shall be
required to be made with respect to such Receivable if, by the end of such
30-day period (or such longer period as may be agreed to in writing by the
Indenture Trustee), the breached representation or warranty shall then be true
and correct in all material respects and any material adverse effect caused
thereby shall have been cured.
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The Transferor shall accept a reassignment of each such
Receivable by directing the Servicer to deduct, subject to the next sentence,
the principal amount of such Receivables from the Pool Balance on or prior to
the end of the Collection Period in which such reassignment obligation arises.
If, following such deduction, the Pool Balance would be less than the Required
Pool Balance on such date, then not later than 12:00 noon on the day on which
such reassignment occurs, the Transferor shall deposit in the Collection Account
in immediately available funds the amount (the "Transfer Deposit Amount") by
which the Pool Balance would be less than the Required Pool Balance (up to the
principal amount of such Receivables); provided that if the Transfer Deposit
Amount is not deposited as required by this sentence, then the principal amounts
of such Receivables shall only be deducted from the Pool Balance to the extent
that the Pool Balance is not reduced below the Required Pool Balance and the
Receivables the principal amounts of which have not been so deducted shall not
be reassigned to the Transferor and shall remain part of the Trust, it being
understood that the failure to remove Receivables pursuant to this proviso shall
not limit the obligation of the Transferor to deposit the portion of the
Transfer Deposit Amount not so deposited. Upon reassignment of any such
Receivable, but only after payment by the Transferor of the Transfer Deposit
Amount, if any, the Trust shall automatically and without further action be
deemed to sell, transfer, assign, set over and otherwise convey to the
Transferor, without recourse, representation or warranty, all the right, title
and interest of the Trust in and to such Receivable, all Collateral Security and
all moneys due or to become due with respect thereto and all proceeds thereof.
The Owner Trustee shall execute such documents and instruments of transfer or
assignment and take such other actions as shall reasonably be requested by the
Transferor to effect the conveyance of such Receivables pursuant to this Section
2.4. The obligation of the Transferor to accept a reassignment of any such
Receivable and to pay any related Transfer Deposit Amount shall constitute the
sole remedy respecting the event giving rise to such obligation available to the
Trust, the Noteholders (or the Indenture Trustee on behalf of Noteholders) or
any other Person.
SECTION 2.5 Addition of Accounts. Subject to the condition set
forth in this Section 2.5, the Transferor may designate additional accounts to
be included as Accounts (the "Additional Accounts").
(a) Required Addition of Accounts. If, as of the close of
business on the last day of any Collection Period, the Pool Balance on such day
is less than the Required Pool Balance as of the last day of that Collection
Period (after giving effect to the allocations, distributions, withdrawals and
deposits to be made on such Payment Date), then the Transferor shall, within
five Business Days following the end of such Collection Period, designate and
transfer to the Trust the Receivables (and the Collateral Security) of
Additional Accounts of the Transferor to be included as Accounts in a sufficient
amount such that after giving effect to such addition the Pool Balance as of the
close of business on the last day of the Collection Period would have been at
least equal to the Required Pool Balance as of that last day. The failure of the
Transferor to transfer Receivables to the Trust as provided in this paragraph
solely as a result of the unavailability of a sufficient amount of Eligible
Receivables shall not constitute a breach of this Agreement; provided, however,
that any such failure may result in the occurrence of an Early Amortization
Event described in Section 5.17 of the Indenture. In connection with the
designation of any account as an Additional Account pursuant to this Section
2.5(a), each of the following conditions shall be satisfied with respect to such
addition on or prior to the related Addition Date:
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(i) the Transferor shall have provided the Owner
Trustee, the Indenture Trustee, any Agent, the Rating Agencies and any
Enhancement Providers with a timely Addition Notice;
(ii) such Additional Accounts shall all be
Eligible Accounts;
(iii) the Transferor shall have delivered to the
Owner Trustee a duly executed written assignment (including an
acceptance by the Owner Trustee) in substantially the form of Exhibit A
(the "Assignment") and to the Owner Trustee and the Indenture Trustee
the computer file or microfiche or written list required to be
delivered pursuant to Section 2.1;
(iv) the Transferor shall, to the extent required by
Section 4.3, have deposited in the Collection Account all Collections
with respect to such Additional Accounts since the Additional Cut-Off
Date;
(v) (A) no selection procedures reasonably believed
by the Transferor to be adverse to the interests of the Beneficiaries
shall have been used in selecting such Additional Accounts; (B) the
list of Additional Accounts delivered pursuant to clause (iii) shall be
true and correct in all material respects as of the Additional Cut-Off
Date and (C) as of each of the Notice Date and the Addition Date,
neither World Omni nor the Transferor shall be insolvent nor will
either of them be made insolvent by such transfer nor shall any of them
be aware of any pending insolvency;
(vi) the Rating Agency Condition shall have been
satisfied with respect to such addition;
(vii) the addition of the Receivables arising in such
Additional Accounts shall not result in the occurrence of an Early
Amortization Event or Investment Event;
(viii) the Transferor shall have delivered to the
Owner Trustee, the Indenture Trustee, the Rating Agencies, and any
Enhancement Providers a certificate confirming (A) the items set forth
in paragraphs (ii) through (vii) above and (B) that the Transferor
reasonably believes that the addition of the Receivables arising in
such Additional Accounts will not result in the occurrence of an Early
Amortization Event or Investment Event; and
(ix) on or before each Addition Date, the Transferor
shall have delivered to the Owner Trustee, the Indenture Trustee, each
applicable Rating Agency and any Enhancement Providers an Opinion of
Counsel with respect to the Receivables in the Additional Accounts
substantially in the form of Exhibit C.
Receivables and Collateral Security from such Additional
Accounts shall be sold to the Trust effective on a date (the "Addition Date")
specified in a written notice provided by the
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Transferor (or the Servicer on its behalf) to the Owner Trustee, the Indenture
Trustee, the Rating Agencies, any Agent and any Enhancement Providers specifying
the Additional Cut-Off Date and the Addition Date for such Additional Accounts
(the "Addition Notice") on or before the fifth Business Day but not more than
the 30th day prior to the related Addition Date (the "Notice Date").
The Transferor hereby represents and warrants as of the
applicable Addition Date as to the matters set forth in clause (v) above). Upon
discovery by the Transferor, World Omni, any Agent, the Owner Trustee, the
Indenture Trustee or any Enhancement Providers of a breach of the foregoing
representations and warranties, the party discovering the breach shall give
prompt written notice to the other parties, to any Agent and to any Enhancement
Providers.
(b) Optional Addition of Accounts. The Transferor may from
time to time, at its sole discretion, voluntarily designate Additional Accounts
(other than those that contain Purchased Participation Receivables,
Participation Interests or Asset Based Receivables unless the Modified Rating
Agency Condition has been satisfied) to be included as Accounts and transfer to
the Trust the Receivables (and the Collateral Security) of such Additional
Accounts. (Additional Accounts designated in accordance with the provisions
described in this Section 2.5(b) are referred to as "Automatic Additional
Accounts".) Unless the Rating Agency Condition has been satisfied, neither the
number of Automatic Additional Accounts designated with respect to any calendar
quarter shall exceed 15% of the number of Accounts as of the first day of such
calendar quarter, nor shall the number of Automatic Additional Accounts
designated during any calendar year exceed 20% of the number of Accounts as of
the first day of such calendar year. Within 30 days after the end of any
calendar quarter, or such other period as shall be required by the Rating
Agencies, in which Accounts are designated as Automatic Additional Accounts, the
Transferor will deliver to the Owner Trustee and the Indenture Trustee and each
Rating Agency an Opinion of Counsel with respect to the Automatic Additional
Accounts included as Accounts in such quarter, confirming the validity and
perfection of the transfer of such Automatic Additional Accounts. If such
Opinion of Counsel with respect to any Automatic Additional Accounts is not so
delivered, the ability of the Transferor to designate Automatic Additional
Accounts will be suspended until such time as the Rating Agency Condition has
been satisfied. If the Transferor is unable to deliver an Opinion of Counsel
with respect to any Automatic Additional Account, such inability shall be deemed
to be a breach of the representation and warranty with respect to the
Receivables in such Automatic Additional Account, provided that the cure period
for such breach will not exceed 30 days. In connection with the designation of
any account as an Automatic Additional Account pursuant to this Section 2.5(b),
each of the conditions specified in clauses (ii), (iii), (iv), (v), (vii) and,
if required by the Rating Agencies, (ix) of Section 2.5(a) shall be satisfied
with respect to such addition on or prior to the related Addition Date.
SECTION 2.6 Covenants of the Transferor. The Transferor hereby
covenants that:
(a) No Liens. Except for the conveyances hereunder or as
provided in Section 2.1 of the Indenture, the Transferor will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume or
suffer to exist any Lien on, any Receivable or any Collateral Security, whether
now existing or hereafter created, or any interest therein, or the Transferor's
rights, remedies, powers or privileges with respect to the Receivables under the
Receivables Purchase Agreement
9
(other than the Lien held by World Omni subject to Article VII of the
Receivables Purchase Agreement, Participation Interests or Purchased
Participation Receivables), and the Transferor shall defend the right, title and
interest of the Trust in, to and under the Receivables and the Collateral
Security, whether now existing or hereafter created, and such rights, remedies,
powers and privileges, against all claims of third parties claiming through or
under World Omni.
(b) Delivery of Collections. In the event that the Transferor,
World Omni or any Affiliate thereof receives payments in respect of Receivables,
the Transferor and World Omni agree to pay or cause to be paid to the Servicer
or any Successor Servicer all payments received thereby in respect of the
Receivables as soon as practicable after receipt thereof, but in no event later
than two Business Days after the receipt by the Transferor, World Omni or any
Affiliate thereof.
(c) Agreement Matters. If World Omni breaches any of the
covenants in Section 2.5 of the Receivables Purchase Agreement and such breach
has a material adverse effect on the interests of the Securityholders, the
Transferor shall enforce its rights under the Receivables Purchase Agreement
arising from such breach.
(d) Account Allocations. In the event that the Transferor is
unable for any reason to transfer Receivables in an Account to the Trust, then
the Transferor agrees that it shall allocate, after the occurrence of such
event, payments on such Account with respect to the principal balance of such
Account first to the oldest principal balance of such Account and to have such
payments applied as Collections in accordance with the terms of this Agreement.
The parties hereto agree that Non-Principal Receivables, whenever created,
accrued in respect of Principal Receivables which have been conveyed to the
Trust shall continue to be a part of the Trust notwithstanding any cessation of
the transfer of additional Principal Receivables to the Trust and Collections
with respect thereto shall continue to be allocated and paid in accordance with
Section 8.2 of the Indenture.
SECTION 2.7 Removal of Eligible Accounts.
(a) On each Determination Date the Transferor shall have the
right to remove Accounts from the Trust in the manner prescribed in Section
2.7(b).
(b) To remove Accounts, the Transferor (or the Servicer on its
behalf) shall take the following actions and make the following determinations:
(i) not less than five Business Days prior to the
Removal Commencement Date, furnish to the Owner Trustee, the Indenture
Trustee, any Agent, any Enhancement Providers and the Rating Agencies a
written notice (the "Removal Notice") specifying the Determination Date
(which may be the Determination Date on which such notice is given) on
which removal of one or more Accounts will commence (a "Removal
Commencement Date") and specifying the Accounts the future generated
Receivables of which are not to be transferred to the Trust (the
"Designated Accounts");
(ii) determine on the Removal Commencement Date the
aggregate principal balance of Receivables in respect of each such
Designated Account (the "Designated
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Balance") and amend Schedule 1 by delivering to the Indenture Trustee a
computer file or microfiche or written list containing a true and
complete list of the Removed Accounts specifying for each such Account,
as of the Removal Commencement Date, its account number, the aggregate
amount of Receivables outstanding in such Account and the Designated
Balance;
(iii) from and after such Removal Commencement Date,
cease to transfer to the Trust any and all Receivables arising in such
Designated Accounts;
(iv) from and after such Removal Commencement Date,
allocate all Principal Collections in respect of each such Designated
Account, first to the oldest outstanding principal balance of such
Designated Account, until the Determination Date on which the
Designated Balance with respect to such Designated Account is reduced
to zero (the "Removal Date");
(v) on each Business Day from and after such Removal
Commencement Date to and until the related Removal Date, allocate (A)
to the Trust (to be further allocated pursuant to the terms of this
Agreement), Non-Principal Collections in respect of each Designated
Account for Receivables in all Designated Accounts transferred to the
Trust and (B) to the Transferor the remainder of the Non-Principal
Collections in the Designated Accounts;
(vi) represent and warrant that the removal of the
Eligible Account on any Removal Date shall not, in the reasonable
belief of the Transferor, cause an Early Amortization Event or
Investment Event to occur for any Series or class of Notes;
(vii) represent and warrant that no selection
procedures believed by the Transferor to be adverse to the interests of
the Beneficiaries were utilized in selecting the Designated Accounts;
(viii) represent and warrant that such removal will
not result in a reduction or withdrawal of the rating of any
outstanding Series or class of Notes by any applicable Rating Agency;
and
(ix) on or before the related Removal Commencement
Date, deliver to the Indenture Trustee, any Agent and any Enhancement
Providers an Officers' Certificate confirming the items set forth in
clauses (vi) through (viii) above and confirming that the Transferor
reasonably believes that the removal of the Removed Accounts will not
result in the occurrence of an Early Amortization Event or Investment
Event; the Owner Trustee and the Indenture Trustee may conclusively
rely on such Officers' Certificate and shall have no duty to make
inquiries with regard to the matters set forth therein and shall incur
no liability in so relying.
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No Designated Accounts held by the Trust shall be so removed if such removal
will result in a reduction or withdrawal of the rating of any outstanding Series
or class of Notes by any applicable Rating Agency.
Upon satisfaction of the above conditions, on the Removal Date
with respect to any such Trust Account, the Transferor shall cease to allocate
any Collections therefrom in accordance with this Section and such Designated
Account shall be deemed removed from the Trust for all purposes (a "Removed
Account"). Within five Business Days after the Removal Date, the Owner Trustee
shall deliver to the Transferor a reassignment in substantially the form of
Exhibit D (the "Reassignment"), together with appropriate UCC financing
statements.
SECTION 2.8 Removal of Ineligible Accounts.
(a) On the fifth Business Day after any date on which an
Account becomes an Ineligible Account (such fifth Business Day shall be deemed
to be the Removal Commencement Date) the Transferor shall commence removal of
the Receivable of such Ineligible Account in the manner prescribed for the
removal of Eligible Accounts in Section 2.7(b); provided, however, if an Account
becomes an Ineligible Account other than as a result of the failure to satisfy
(i) clause (b) of the definition of Eligible Account as a result of a failure to
satisfy clause (b) of the definition of Eligible Dealer or (ii) clause (d) of
the definition of Eligible Account, the Transferor shall have the right to
remove Ineligible Accounts from the Trust and (i) repurchase the then existing
Receivables in such Accounts in the manner prescribed in Section 2.8(b) or (ii)
reassign the existing Receivables in such Accounts in the manner prescribed in
Section 2.8(c).
(b) To remove Ineligible Accounts and repurchase the then
existing Receivables in such Accounts, the Transferor (or the Servicer on its
behalf) shall take the following actions and make the following determinations:
(i) not less than five Business Days prior to the
Removal and Repurchase Date (the "Removal and Repurchase Notice Date"),
furnish to the Owner Trustee, the Indenture Trustee, any Agent, any
Enhancement Providers and the Rating Agencies a Removal Notice
specifying the Designated Accounts which are to be removed, and the
then existing Receivables in such Designated Accounts (the "Designated
Receivables") which are to be repurchased from the Trust and the date
on which the removal of such Designated Accounts and the repurchase of
such Designated Receivables will occur (a "Removal and Repurchase
Date");
(ii) on the Removal and Repurchase Date with respect
to such Designated Accounts, amend Schedule 1 by delivering to the
Owner Trustee a computer file or microfiche or written list containing
a true and complete list of the Removed Accounts specifying for each
such Account, as of the Removal and Repurchase Notice Date, its account
number and the aggregate amount of Receivables outstanding in such
Account;
(iii) on the Removal and Repurchase Date deposit into
the Collection Account funds in an amount equal to the aggregate
outstanding balance of the Designated
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Receivables on such date (the "Repurchased Receivables Purchase
Price"), which funds, notwithstanding anything in this Agreement to the
contrary, will be treated as Collections;
(iv) represent and warrant that the removal of any
such Ineligible Account and the repurchase of the Receivables then
existing in such Account on any Removal and Repurchase Date shall not
in the reasonable belief of the Transferor, cause an Early Amortization
Event or Investment Event to occur for any Series or class of Notes or
cause the Pool Balance to be less than the Required Pool Balance;
(v) represent and warrant that no selection
procedures believed by the Transferor to be adverse to the interests
of the Beneficiaries were utilized in selecting the Designated
Accounts;
(vi) represent and warrant as of the Removal and
Repurchase Date that the list of Removed Accounts delivered pursuant to
clause (ii) above, as of the Removal and Repurchase Date, is true and
complete in all material respects;
(vii) represent and warrant that such removal and
repurchase will not result in a reduction or withdrawal of the rating
of any outstanding Series or class of Notes by the applicable Rating
Agency; and
(viii) on or about the related Removal and Repurchase
Date, deliver to the Indenture Trustee, any Agent and any Enhancement
Providers an Officers' Certificate confirming the items set forth in
clauses (iv) through (vii) above and confirming that the Transferor
reasonably believes that the removal of the Removed Accounts and the
repurchase of the Repurchased Receivables will not result in the
occurrence of an Early Amortization Event or Investment Event; the
Owner Trustee and the Indenture Trustee may conclusively rely on such
Officers' Certificate and shall have no duty to make inquiries with
regard to the matters set forth therein and shall incur no liability in
so relying.
Upon satisfaction of the above conditions, on the Removal and
Repurchase Date for any such Designated Account and Designated Receivables, such
Designated Account shall be deemed removed, and such Designated Receivables
("Repurchased Receivables") shall be deemed repurchased, from the Trust for all
purposes and the Owner Trustee shall, without further action, be deemed to sell,
transfer, assign, set over and otherwise convey to the Transferor, effective as
of the Removal and Repurchase Date, without recourse, representation or
warranty, all the right, title and interest of the Trust in and to the
Repurchased Receivables, all moneys due and to become due and all amounts
received with respect thereto and all proceeds thereof. Within five Business
Days after the Removal and Repurchase Date, the Owner Trustee shall deliver to
the Transferor a Reassignment, together with appropriate UCC financing
statements.
(c) To remove Ineligible Accounts and reassign the then
existing Receivables in such Accounts ("Automatic Removed Accounts"), the
Transferor (or the Servicer on its behalf) shall take the following actions and
make the following determinations:
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(i) on or before the fifth Business Day immediately
preceding the Automatic Removal Date furnish to the Owner Trustee, the
Indenture Trustee, any Agent, any Enhancement Providers and the Rating
Agencies a Removal Notice specifying the Automatic Removed Accounts
which are to be removed and the then existing Receivables in such
Accounts which are to be reassigned from the Trust to the Transferor
and the date on which such removal of Automatic Removed Accounts and
reassignment of such Receivables is to occur (the "Automatic Removal
Date");
(ii) on or prior to the date that is five Business
Days after the Automatic Removal Date, the Transferor shall deliver a
computer file or microfiche or written list containing a true and
complete list of the Automatic Removed Accounts specifying for each
such Account, as of the Removal and Reassignment Date, its account
number and the aggregate amount of Receivables outstanding in such
Account;
(iii) represent and warrant that the list of
Automatic Removal Accounts delivered pursuant to clause (ii), as of the
Automatic Removal Date, is true and complete in all material respects;
and
(iv) if any of the Accounts to be removed is not
liquidated and does not have a zero balance (A) the Rating Agency
Condition shall have been satisfied with respect to such removal and
(B) deliver to the Owner Trustee, the Indenture Trustee, any Agent and
any Enhancement Providers an Officers' Certificate, dated the Automatic
Removal Date, confirming that such removal will not cause an Early
Amortization Event or Investment Event to occur for any Series or class
of Notes.
SECTION 2.9 Transfer of Ineligible Receivables. The Transferor
shall sell to the Trust on each Transfer Date any and all Receivables arising in
any Eligible Accounts that are Ineligible Receivables, provided that (a) on the
Initial Cut-Off Date or, in the case of Receivables arising in Additional
Accounts, on the related Additional Cut-Off Date, and on the applicable Transfer
Date, the Account in which such Receivables arise is an Eligible Account and (b)
the Incremental Subordinated Amount is adjusted in accordance with the
definition of Incremental Subordinated Amount as defined in the related Series
Supplement.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.1 Acceptance of Appointment and Other Matters
Relating to the Servicer.
(a) The Servicer shall service and administer the Receivables,
shall collect payments due under the Receivables and shall charge-off as
uncollectible Receivables, all in accordance with its customary and usual
servicing procedures for servicing wholesale receivables comparable to the
Receivables which the Servicer services for its own account and in accordance
with the Floorplan Financing Guidelines; provided, however, that the Servicer
shall have no responsibility
14
with respect to Non-Serviced Participation Receivables other than enforcing the
rights of the Issuer pursuant to the participation agreement which created such
Non-Serviced Participation Receivables in order to ensure that such Receivable
is properly serviced and that all amounts due to the Issuer under the
Participation Agreement are received. The Servicer shall have full power and
authority, acting alone or through any party properly designated by it
hereunder, to do any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing and subject to Section 7.1, the Servicer is hereby
authorized and empowered, unless such power and authority is revoked by the
Owner Trustee on account of the occurrence of a Servicing Default pursuant to
Section 7.1, (i) to instruct the Indenture Trustee to make withdrawals and
payments from the Collection Account and any Series Account as set forth in this
Agreement, (ii) to instruct the Owner Trustee to take any action required or
permitted under any Enhancement, (iii) to execute and deliver, on behalf of the
Trust for the benefit of the Certificateholders and the Beneficiaries, any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge, and all other comparable instruments, with respect to the
Receivables and, after the delinquency of any Receivable and to the extent
permitted under and in compliance with applicable Requirements of Law, to
commence enforcement proceedings with respect to such Receivables, (iv) to make
any filings, reports, notices, applications, registrations with, and seek any
consents or authorizations from, the Securities and Exchange Commission and any
state securities authority on behalf of the Trust as may be necessary or
advisable to comply with any federal or state securities laws or reporting
requirement, and (v) to delegate all or any of its servicing, collection,
enforcement and administrative duties hereunder with respect to the Accounts and
the Receivables to any Person who agrees to conduct such duties in accordance
with the Floorplan Financing Guidelines and this Agreement; provided, however,
that the Servicer shall notify the Owner Trustee, the Indenture Trustee, the
Rating Agencies, any Agent and any Enhancement Providers in writing of any such
delegation of its duties which is not in the ordinary course of its business,
that no delegation will relieve the Servicer of its liability and responsibility
with respect to such duties and that the Rating Agency Condition shall have been
satisfied with respect to any such delegation. The Owner Trustee shall furnish
the Servicer with any powers of attorney and other documents reasonably
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
(b) In the event that the Transferor is unable for any reason
to transfer Receivables to the Trust in accordance with the provisions of this
Agreement then, in any such event, the Servicer agrees (i) to give prompt
written notice thereof to the Owner Trustee, the Indenture Trustee, any
Enhancement Providers, any Agent and each Rating Agency and (ii) that it shall
in any such event allocate, after the occurrence of such event, payments on each
Account with respect to the principal balance of such Account first to the
oldest principal balance of such Account, and to have such payments applied as
Collections in accordance with Section 8.2 of the Indenture. The parties hereto
agree that Non-Principal Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to the Trust shall continue to be
a part of the Trust and Trust Assets notwithstanding any cessation of the
transfer of additional Principal Receivables to the Trust, and Collections with
respect to such Principal Receivables and Non-Principal Receivables shall
continue to be allocated and paid to the Trust in accordance with the terms of
this Agreement.
15
(c) The Servicer shall not, and any Successor Servicer shall
not be obligated to, use separate servicing procedures, offices or employees for
servicing the Receivables from the procedures, offices and employees used by the
Servicer in connection with servicing other wholesale receivables.
(d) The Servicer shall comply with and perform its servicing
obligations with respect to the Accounts and Receivables (other than
Non-Serviced Participation Receivables) in accordance with the Floorplan
Financing Agreements or the Asset Based Lending Financing Agreements relating to
the Accounts and the Floorplan Financing Guidelines, except insofar as any
failure to so comply or perform would not materially and adversely affect the
rights of the Trust or any of the Beneficiaries. Subject to compliance with all
Requirements of Law, the Servicer may change the terms and provisions of the
Floorplan Financing Agreements, the Asset Based Lending Financing Agreements or
the Floorplan Financing Guidelines in any respect (including the calculation of
the amount or the timing of charge-offs and the rate of the finance charge
assessed under these agreements), only if (i) as a result of such change, in the
reasonable judgment of the Servicer, no Early Amortization Event or Investment
Event will occur at any time and none of the Certificateholders or Beneficiaries
shall be materially adversely affected (it being understood that any reduction
in the rate paid by Accounts will not materially adversely affect the
Certificateholders or Beneficiaries if it satisfies the condition in clause
(iii) below), (ii) such change is made applicable to the comparable segment of
wholesale accounts owned or serviced by the Servicer which have characteristics
the same as, or substantially similar to, the Accounts which are the subject of
such change and (iii) in the case of a reduction in the rate of such finance
charges, the Servicer does not reasonably expect any such reduction to result in
the weighted average of the Reference Rates applicable to the Receivables for
any Collection Period being less than the weighted average of the sum of the
Note Rates (in the case of a Series with a fixed Note rate and a swap agreement,
the floating rate payable by the Trust under the swap agreement) and the
Servicing Fee Rates for all outstanding Series for the related Interest Period
(each such term as defined in the related Series Supplement). For purposes of
clause (iii) of the preceding sentence, so long as the Reference Rate is in fact
based on LIBOR or the prime rate of one or more banks (which bank or banks may
change from time to time), downward fluctuations in the Reference Rate shall not
be deemed to be a reduction in the rate of such finance charges; provided that a
reduction in the margin added to such Reference Rate to determine the finance
charge would be a reduction in such finance charge.
SECTION 3.2 Servicing Compensation. As full compensation for
its servicing activities hereunder and reimbursement for its expenses as set
forth in the immediately following paragraph, the Servicer shall be entitled to
receive the Servicing Fee on each Payment Date on or prior to the Trust
Termination Date payable in arrears. The "Servicing Fee" shall be the aggregate
of the Monthly Servicing Fees specified in the Series Supplement. The Servicing
Fee shall be payable to the Servicer solely to the extent amounts are available
for payment in accordance with the terms of the applicable Series Supplement.
The Servicer's expenses include the amounts due to the Owner
Trustee pursuant to Section 6.9 of the Trust Agreement and the Indenture Trustee
pursuant to Section 6.7 of the Indenture and the reasonable fees and
disbursements of attorneys, independent accountants and all other expenses
incurred by the Servicer in connection with its activities hereunder, and all
fees and
16
expenses of the Trust not expressly stated herein to be for the account of the
Certificateholders or the Beneficiaries. Except as otherwise provided in a
Series Supplement, the Servicer shall be required to pay such expenses for its
own account, and shall not be entitled to any payment therefor other than the
Servicing Fee. Except as otherwise provided in a Series Supplement, the Servicer
will be solely responsible for all fees and expenses incurred by or on behalf of
the Servicer in connection herewith and the Servicer will not be entitled to any
fee or other payment from, or claim on, any of the Trust Assets (other than the
Servicing Fee).
SECTION 3.3 Representations, Warranties and Covenants of the
Servicer.
(a) World Omni, as Servicer, hereby makes, and any Successor
Servicer by its appointment hereunder shall make, on each Closing Date (and on
the date of any such appointment) the following representations, warranties and
covenants:
(i) Organization and Good Standing. Such party is a
corporation duly organized, validly existing and in good standing under
the applicable laws of the state of its incorporation and has, in all
material respects, full corporate power, authority and legal rights to
own its properties and conduct its wholesale receivable servicing
business as such properties are presently owned and as such business is
presently conducted, and to execute, deliver and perform its
obligations under this Agreement and the applicable Series Supplement.
(ii) Due Qualification. Such party is duly qualified
to do business and is in good standing as a foreign corporation (or is
exempt from such requirements) and has obtained all necessary licenses
and approvals in each jurisdiction in which the servicing of the
Receivables as required by this Agreement requires such qualification,
except where the failure to so qualify or obtain licenses or approvals
would not have a material adverse effect on its ability to perform its
obligations hereunder.
(iii) Due Authorization. The execution, delivery, and
performance of this Agreement and the applicable Series Supplement has
been duly authorized by such party by all necessary corporate action on
the part thereof.
(iv) Binding Obligation. Each of this Agreement and
each applicable Series Supplement constitutes a legal, valid and
binding obligation of such party, enforceable in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereinafter in effect, affecting the enforcement of
creditors' rights and except as such enforceability may be limited by
general principles of equity (whether considered in a proceeding at law
or in equity).
(v) No Violation. The execution and delivery of this
Agreement and the applicable Series Supplement by such party, the
performance of the transactions contemplated by this agreement and the
applicable Series Supplement and the fulfillment of the terms hereof
and thereof applicable to such party will not conflict with, violate,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time
17
or both) a material default under, any Requirement of Law applicable to
such party or any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which such party is a party or by which
it is bound.
(vi) No Proceedings. Except as provided on Schedule
2, there are no proceedings or, to the best knowledge of such party,
investigations, pending or threatened against such party before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality seeking to prevent the consummation of any
of the transactions contemplated by this Agreement and the other Basic
Documents, seeking any determination or ruling that, in the reasonable
judgment of such party, would materially and adversely affect the
performance by such party of its obligations under this Agreement and
the applicable Series Supplement, or seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement and the applicable Series Supplement.
(vii) Compliance with Requirements of Law. Such party
shall duly satisfy all obligations on its part to be fulfilled under or
in connection with the Receivables and the Accounts, will maintain in
effect all qualifications required under Requirements of Law in order
to service properly the Receivables and the Accounts and will comply in
all material respects with all Requirements of Law in connection with
servicing the Receivables and the Accounts the failure to comply with
which would have a material adverse effect on the interests of the
Certificateholders or the Beneficiaries.
(viii) No Rescission or Cancellation. Such party
shall not permit any rescission or cancellation of a Receivable except
as ordered by a court of competent jurisdiction or other Governmental
Authority.
(ix) Protection of Beneficiaries Rights. Such party
shall not take any action, nor omit to take any action, which action or
omission would impair the rights of Beneficiaries in the Receivables
nor shall it reschedule, revise or defer payments due on any Receivable
except in accordance with the Floorplan Financing Guidelines.
(x) Negative Pledge. Except for the conveyance
hereunder to the Owner Trustee, the pledge to the Indenture Trustee
under the Indenture and the conveyances of Participation Interests
permitted by the Receivables Purchase Agreement, the Servicer will not
sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on, any Receivable sold and
assigned to the Trust, whether now existing or hereafter created, or
any interest therein, and the Servicer shall defend the rights, title
and interest of the Trust in, to and under any Receivable sold and
assigned to the Trust, whether now existing or hereafter created,
against all claims of third parties claiming through or under the
Transferor or the Servicer.
(b) Notice of Breach. The representations and warranties set
forth in this Section 3.3 shall survive the transfer and assignment of the
Receivables to the Trust and the pledge of the Receivables to the Indenture
Trustee pursuant to the Indenture. Upon discovery by the Transferor,
18
the Servicer, the Owner Trustee, or the Indenture Trustee of a breach of any of
the representations and warranties set forth in this Section 3.3, the party
discovering such breach shall give prompt written notice to the other parties
and to any Enhancement Providers.
(c) Purchase. In the event any representation or warranty
under Section 3.3(a)(vii), (viii) or (ix) is not true and correct in any
material respect as of the date specified therein with respect to any Receivable
or Account and such breach has a material adverse effect on the value of such
Receivable, then, within 30 days (or such longer period as may be agreed to by
the Owner Trustee) of the earlier to occur of the discovery of any such event by
the Transferor or the Servicer, or receipt by the Transferor or the Servicer of
written notice of any such event given by the Owner Trustee, the Indenture
Trustee or any Enhancement Providers, the Servicer shall purchase such
Receivable or, in the case of an untrue representation with respect to an
Account, all Receivables in such Account, on the Determination Date immediately
succeeding the expiration of such 30-day period on the terms and conditions set
forth in the next succeeding paragraph; provided, however, that no such purchase
shall be required to be made with respect to such Receivable if, by the end of
such 30-day period (or such longer period as may be agreed to by the Owner
Trustee) the breached representation or warranty shall then be true and correct
in all material respects and any material adverse effect caused thereby shall
have been cured. The Servicer shall effect such purchase by depositing in the
Collection Account in immediately available funds an amount equal to the
Purchase Price of such Receivable. Any such deposit of such Purchase Price into
the Collection Account shall be considered a Transfer Deposit Amount and shall
be applied in accordance with the terms of this Agreement.
Upon each such payment of such Purchase Price, the Trust shall
automatically and without further action be deemed to sell, transfer, assign,
set over and otherwise convey to the Servicer, without recourse, representation
or warranty, all right, title and interest of the Trust in and to such
Receivables, all monies due or to become due with respect thereto and all
proceeds thereof and the Collateral Security. The Owner Trustee shall execute
such documents and instruments of transfer or assignment and take such other
actions as shall be reasonably requested by the Servicer to effect the
conveyance of any such Receivables pursuant to this Section 3.3. The obligation
of the Servicer to purchase such Receivables, and to make the deposits required
to be made to the Collection Account as provided in the preceding paragraph,
shall constitute the sole remedy respecting the event giving rise to such
obligation available to the Trust, the Certificateholders (or the Owner Trustee
on behalf of the Certificateholders) or the Noteholders (or the Indenture
Trustee on behalf of the Noteholders).
SECTION 3.4 Reports and Records.
(a) On or before each Payment Date, with respect to each
outstanding Series, the Servicer shall deliver to any Enhancement Providers, the
Rating Agencies, the Owner Trustee, and the Indenture Trustee a Payment Date
Statement for such Payment Date substantially in the form set forth in the
Series Supplement for that Series of Notes. Each such statement to be delivered
to Securityholders shall set forth the following information concerning the
Notes with respect to that Payment Date, the period since the previous Payment
Date, or the related Collection Period:
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(i) the total amount distributed to the Noteholders;
(ii) the amount, if any, of the distribution
allocable to principal on each Series or class of Notes;
(iii) the amount, if any, of the distribution
allocable to interest on or with respect to each Series or class
of Notes;
(iv) the aggregate Outstanding Amount for each Series
or class of Notes, each as of such date and after giving effect to all
payments reported under clause (i) above;
(v) the amount of the Monthly Servicing Fee paid to
the Servicer with respect to the related Collection Period or Periods,
as the case may be;
(vi) the per annum interest rate for the next Payment
Date for any Series or class of Securities with a variable or
adjustable interest rate, if determinable prior to such date;
(vii) the amount of Receivables that become
Defaulted Receivables during the related Collection Period;
(viii) the accumulated interest and principal
shortfalls, if any, on each Series or class of Notes and the change in
each of such amounts from the preceding Payment Date;
(ix) the balance of Excess Funding Account on the
last day of the related Collection Period after giving effect to
changes therein or any distributions therefrom on such date; and
(x) with respect to each Series of Notes, the
items set forth in the applicable Series Supplement.
Each amount set forth pursuant to clauses (i) and (ii) above with respect to the
Notes shall be expressed as a dollar amount per $1,000 of initial principal
amount of the Notes.
(b) Within the prescribed period of time for tax reporting
purposes after the end of each calendar year during the term of this Agreement,
the Indenture Trustee shall furnish (or cause to be furnished), to each Person
who at any time during such calendar year shall have been a Holder of record of
Notes or Certificates, respectively, and received any payment thereon, a
statement containing such information as may be required by the Code and
applicable Treasury Regulations to enable such Securityholder to prepare its
federal income tax returns.
(c) On or before each Advance Date or Pay Down Date, with
respect to each outstanding Series, the Servicer shall deliver to any
Enhancement Providers, the Rating Agencies, the Owner Trustee, and the Indenture
Trustee a Reset Date Statement for the related Reset Date substantially in the
form set forth in the Series Supplement for that Series of Notes.
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(d) A copy of each statement provided pursuant to Section
3.4(a) shall be made available for inspection at the Corporate Trust Office.
SECTION 3.5 Annual Servicer's Certificate. The Servicer will
deliver to the Rating Agencies, the Owner Trustee, the Indenture Trustee, any
Agent and any Enhancement Providers on or before April 30 of each calendar year,
beginning with April 30, 2000, an Officers' Certificate substantially in the
form of Exhibit B stating that (a) a review of the activities of the Servicer
during the preceding calendar year and of its performance under this Agreement
was made under the supervision of the officer signing such certificate and (b)
to the best of such officer's knowledge, based on such review, the Servicer has
performed in all material respects its obligations under this Agreement
throughout such year, or, if there has been a material default in the
performance of any such obligation, specifying each such default known to such
officer and the nature and status thereof. A copy of such certificate may be
obtained by any Securityholder by a request in writing to the Owner Trustee
addressed to the Corporate Trust Office.
SECTION 3.6 Annual Independent Public Accountants' Servicing
Report. The Servicer shall cause a firm of independent certified public
accountants, who may also render other services to the Servicer or to the
Transferor, to deliver to the Owner Trustee, the Indenture Trustee, the Rating
Agencies, each Agent and each Enhancement Provider on or before April 30 of each
year, beginning April 30, 2000, a report addressed to the board of directors of
the Servicer and to the Owner Trustee and the Indenture Trustee, to the effect
that such firm has examined the financial statements of the Servicer and issued
its report thereon and that: (a) such examination was made in accordance with
generally accepted auditing standards, and accordingly included such tests of
the accounting records and such other auditing procedures as such firm
considered necessary in the circumstances, (b) as a part of such examination,
certain documents and records of the Servicer relating to the servicing of
wholesale receivables (including financing arrangements with automobile dealers
to finance their automobile and light-duty truck inventory) were reviewed and
tested and (c) nothing came to the attention of such firm that caused them to
believe that the provisions of this Agreement were not being complied with,
except for (i) such exceptions as such firm shall believe to be immaterial and
(ii) such other exceptions as shall be set forth in such statement. A copy of
such report may be obtained by any Securityholder by a request in writing to the
Owner Trustee addressed to the Corporate Trust Office.
SECTION 3.7 Tax Treatment. The Transferor has entered into
this Agreement and the Notes have been (or will be) issued with the intention
that the Notes will qualify under applicable tax law as indebtedness secured by
the Receivables. The Transferor, each Beneficiary, each Certificate Owner and
Note Owner, by the acceptance of its Note or Book-Entry Note, as applicable,
agrees to treat the Notes as indebtedness secured by the Receivables for federal
income taxes, and any other income, franchise taxes, or any other taxes imposed
on or measured by income of any applicable state, local or foreign jurisdiction.
SECTION 3.8 Notices to World Omni. In the event World Omni is
no longer acting as Servicer, any Successor Servicer appointed pursuant to
Section 7.2 shall deliver or make available
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to World Omni, as the case may be, each certificate and report required to be
prepared, forwarded or delivered thereafter pursuant to Sections 3.4, 3.5 or
3.6.
SECTION 3.9 Adjustments.
(a) If the Servicer adjusts downward the amount of any
Principal Receivable because of a rebate, refund, credit adjustment or billing
error to a Dealer, or because such Receivable was created in respect of a
Vehicle which was refused or returned by a Dealer, then, in any such case, the
Pool Balance will be automatically reduced by the amount of the adjustment.
Furthermore, if following such a reduction the Pool Balance would be less than
the Minimum Required Pool Balance on such day, then the Transferor shall be
required to pay an amount equal to such deficiency (up to the amount of such
adjustment) into the Collection Account within five Business Days after the day
on which such adjustment or reduction occurs (each such payment an "Adjustment
Payment").
(b) If (i) the Servicer makes a deposit into the Collection
Account in respect of a Collection of a Receivable and such Collection was
received by the Servicer in the form of a check which is not honored for any
reason or (ii) the Servicer makes a mistake with respect to the amount of any
Collection and deposits an amount that is less than or more than the actual
amount of such Collection, the Servicer shall appropriately adjust the amount
subsequently deposited into the Collection Account to reflect such dishonored
check or mistake. Any Receivable in respect of which a dishonored check is
received shall be deemed not to have been paid.
(c) If the Servicer adjusts downward the amount of interest
otherwise payable on any Receivable with respect to any Collection Period as a
result of any interest rebate program, the Servicer shall deposit into the
Collection Account on or prior to the Payment Date related to such Collection
Period an amount equal to the amount of such rebate (each such payment, a
"Rebate Payment").
SECTION 3.10 Annual Servicing Transfer.
(a) At the close of business on the last Business Day of the
Servicer of each year (each, an "Annual Transfer Date"), beginning December
1999, and for so long as the State of Florida imposes a value-based intangibles
tax on all intangibles owned, managed or controlled by Florida domiciliaries or
intangibles having a business situs in the State of Florida, the Servicer shall
transfer all of its rights, obligations and duties hereunder to WOWI, which
shall agree to perform, until the commencement of business on the first Business
Day of the next succeeding year (the "Annual Retransfer Date"), all of the
duties and obligations of the Servicer hereunder (such transfer, the "Annual
Servicing Transfer"). On the Annual Transfer Date, the Servicer, WOWI, the
Transferor, the Owner Trustee and the Indenture Trustee shall execute and
deliver an annual transfer agreement (each, an "Annual Transfer Agreement") to
be effective on the Annual Transfer Date, pursuant to which WOWI will agree to
act as Servicer hereunder until the Annual Retransfer Date designated therein,
at which time all of the duties and obligations of WOWI as Servicer hereunder
shall terminate until the next Annual Servicing Transfer and World Omni (or a
successor Servicer, if one has been appointed in accordance with Section 7.2)
shall be reinstated as the Servicer hereunder.
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(b) Pursuant to each such Annual Transfer Agreement, the
Transferor shall agree on the Annual Transfer Date to transfer to WOWI 99% of
its right, title and interest in, to and under the Certificates owned by the
Transferor as of such day, together with all of its duties, rights and
obligations under this Agreement. The Transferor shall make such transfer to
WOWI in exchange for a promissory note of WOWI made payable to the order of the
Transferor for such amount, and each such promissory note shall be held in
escrow by the Indenture Trustee for the benefit of the Transferor. Pursuant to
each Annual Transfer Agreement, (i) WOWI shall agree to retransfer to the
Transferor on the Annual Retransfer Date all of its right, title and interest
in, to and under the Certificates transferred to WOWI by the Transferor pursuant
to the Annual Transfer Agreement, together with all of its duties, rights and
obligations under this Agreement and (ii) the Indenture Trustee, as escrow agent
on behalf of the Transferor, shall agree to release such promissory note to WOWI
upon confirmation of such retransfer. In the event WOWI does not fulfill its
obligations to retransfer such Certificates and such duties, rights and
obligations on any Annual Retransfer Date, the Indenture Trustee shall be
authorized pursuant to the Annual Transfer Agreement to demand payment from WOWI
for payment to the Transferor.
(c) In furtherance of the transactions described in
subsections (a) and (b) above, World Omni agrees that it will not perform any of
its duties and obligations under the Floorplan Financing Agreements, Asset Based
Lending Financing Agreements or Floorplan Financing Guidelines, or perform any
activity in connection with this Agreement or the Receivables Purchase
Agreement, during the period from the close of business on the Annual Transfer
Date to the opening of business on the Annual Retransfer Date and agrees to
transfer all such duties and obligations to WOWI during such period.
ARTICLE IV
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 4.1 [Reserved.].
SECTION 4.2 Establishment of Accounts.
(a) The Servicer, for the benefit of the Securityholders and
any Enhancement Providers, shall cause to be established and maintained in the
name of the Indenture Trustee an Eligible Deposit Account bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Securityholders and any Enhancement Providers (the "Collection Account").
(b) The Servicer, for the benefit of the Securityholders and
the Enhancement Providers shall cause to be established and maintained in the
name of the Indenture Trustee an Eligible Deposit Account bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Securityholders and any Enhancement Providers (the "Excess Funding
Account").
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(c) The Indenture Trustee shall possess all right, title and
interest in all funds from time to time on deposit in, and all Eligible
Investments credited to, the Trust Accounts and in all proceeds thereof. The
Trust Accounts shall be under the sole dominion and control of the Indenture
Trustee for the benefit of the Securityholders and any Enhancement Providers.
If, at any time, any Trust Account ceases to be an Eligible Deposit Account, the
Servicer, within 10 Business Days (or such longer period, not to exceed thirty
calendar days, as to which each Rating Agency may consent) of determining or
receiving notice from the Indenture Trustee that any Trust Account is no longer
an Eligible Deposit Account, shall establish a substitute Eligible Deposit
Account as such Trust Account, instruct the Indenture Trustee or the Trust as
applicable, in writing, to transfer any cash and/or any Eligible Investments to
such new Trust Account and, from the date any such substitute account is
established, such account shall be the Trust Account. Neither the Transferor nor
the Servicer, nor any person or entity claiming by, through or under the
Transferor or Servicer, shall have any right, title or interest in, or any right
to withdraw any amount from, the Trust Accounts. Pursuant to the authority
granted to the Servicer in Section 3.1, the Servicer shall have the power,
revocable by the Indenture Trustee (or by the Owner Trustee with the written
consent of the Indenture Trustee), to instruct the Indenture Trustee or the
Trust as applicable, to make withdrawals and payments from the Trust Accounts
for the purposes of carrying out the Servicer's or the Trust's duties specified
in this Agreement or permitting the Indenture Trustee to carry out its duties
under the Indenture.
All Eligible Investments shall be held by the Indenture
Trustee or the Owner Trustee as applicable, for the benefit of the
Securityholders and any Enhancement Providers. Funds on deposit in the Trust
Accounts shall at the written direction of the Servicer be invested by the
Indenture Trustee or the Owner Trustee as applicable, solely in Eligible
Investments that will mature so that such funds will be available at the close
of business on or before the Business Day prior to the next Payment Date (or on
or before 10:00 a.m. on such following Payment Date in the case of Eligible
Investments in respect of which the Indenture Trustee is the obligor or Eligible
Investments specified in clauses (g) or (i) of the definition thereof). Unless
otherwise specified in the related Series Supplement, all interest and other
investment earnings (net of losses and investment expenses) on funds on deposit
in each Trust Account shall be credited to the Trust Account when received;
provided, however, that all such interest and other investment earnings on funds
on deposit in the Excess Funding Account shall be credited to the Collection
Account and shall be Investment Proceeds when so deposited. Schedule 3, which is
hereby incorporated into and made part of this Agreement, identifies the Trust
Accounts by setting forth the account numbers of each account, the account
designation of each account and the name of the Institution with which such
accounts have been established. If a substitute Trust Account is established
pursuant to this Section 4.2, the Servicer shall provide to the Owner Trustee
and the Indenture Trustee an amended Schedule 3, setting forth the relevant
information for such substitute Trust Account. In the absence of timely and
specific written investment direction from the Servicer, the Indenture Trustee
shall invest any cash held by it in Eligible Investments specified in clause (h)
of the definition thereof. In no event shall the Indenture Trustee be liable for
the selection of investments or for investment losses incurred thereon. The
Indenture Trustee shall have no liability in respect of losses incurred as a
result of the liquidation of any investment prior to its stated maturity or the
failure of the Servicer to provide timely written investment direction.
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SECTION 4.3 Allocations and Applications of Collections and
Other Funds.
(a) Except as otherwise provided in Section 4.3(b) and (c),
the Servicer shall deposit Collections into the Collection Account as promptly
as possible after the Date of Processing of such Collections, but in no event
later than the second Business Day after such Date of Processing.
(b) Notwithstanding anything in this Agreement to the
contrary, for so long as (i) World Omni remains the Servicer hereunder, (ii) no
Servicing Default has occurred and is continuing and (iii) World Omni either (x)
maintains a short-term debt rating of at least A-1 by Standard & Poor's and P-1
by Moody's (and for five Business Days following any reduction of either such
rating), (y) arranges for and maintains a letter of credit or other form of
Enhancement in respect of the Servicer's obligations to make deposits of
collections on the Receivables in the Collection Account, which letter of credit
or Enhancement is acceptable in form and substance to each Rating Agency and any
Agents or (z) otherwise satisfies the Rating Agency Condition, then, subject to
any limitations imposed by the Rating Agencies, the Servicer need not make the
daily deposits of Collections into the Collection Account as provided in Section
4.2, but may make a single deposit into the Collection Account in the same-day
or next-day funds not later than 12:00 noon, New York City time, on the Business
Day immediately preceding the Payment Date in a net amount equal to the amount
which would have been on deposit with respect to the immediately preceding
Collection Period in the Collection Account; provided, however, that prior to
ceasing daily deposits as described above the Rating Agency Condition shall have
been satisfied.
(c) Subject to Section 4.4, but notwithstanding anything else
in this Agreement to the contrary, (i) the Servicer will only be required to
deposit Collections into the Collection Account as set forth in paragraph (a)
above up to the aggregate amount of Collections required to be deposited into
any Series Account or, without duplication, distributed on the related Payment
Date (whether or not such funds will be distributed to Noteholders, retained in
the Collection Account or deposited in another account on such Payment Date) to
Noteholders, to any Agent or to any Enhancement Provider pursuant to the terms
of any Series Supplement or Enhancement Agreement with respect to the related
Collection Period and (ii) if at any time prior to such Payment Date the amount
of Collections deposited in the Collection Account exceeds the amount required
to be deposited pursuant to clause (i) above, the Servicer will be permitted to
withdraw the excess from the Collection Account.
(d) Collections, Defaulted Amounts and Miscellaneous Payments
will be allocated to each Series as set forth in the applicable Series
Supplement.
SECTION 4.4 Excess Principal Collections. On each day, the
Servicer shall allocate Excess Principal Collections to each Series to cover
Principal Shortfalls as set forth in the related Series Supplement. To the
extent that Excess Principal Collections exceed Principal Shortfalls, the
Servicer shall instruct the Indenture Trustee in writing to withdraw such amount
from the Collection Account and, first, shall deposit an amount therefrom into
the Excess Funding Account such that the Pool Balance is not less than the
Required Pool Balance, and second, shall pay any remaining amounts to the
Certificateholders as provided in the Trust Agreement or, to the extent
25
requested by the Certificateholders, deposit any amounts payable to such
Certificateholders into the Excess Funding Account.
SECTION 4.5 Excess Funding Account.
(a) In addition to any other amounts permitted or required to
be deposited into the Excess Funding Account pursuant to the Basic Documents, at
the direction of any Certificateholder to the Servicer, Owner Trustee and
Indenture Trustee, any amounts otherwise distributable to such Certificateholder
pursuant to the terms of this Agreement, the Indenture (including any Series
Supplement) and the Trust Agreement, shall be deposited into the Excess Funding
Account.
(b) The net proceeds from any increase in the principal amount
of any Series of Notes shall be deposited into the Excess Funding Account in an
amount equal to the excess of the Required Pool Balance over the Pool Balance.
The remainder of such funds may be distributed to the Certificateholders as
provided in the Trust Agreement or, to the extent requested by any
Certificateholder, the amount otherwise distributable to such Certificate shall
be deposited into the Excess Funding Account.
(c) Unless an Early Amortization Event shall have occurred,
amounts on deposit in the Excess Funding Account may be used to repay the
outstanding principal amount of any Series of Notes to the extent required or
permitted by the terms of the related Series Supplement.
(d) Any amount held in the Excess Funding Account in excess of
the amount required so that the Pool Balance is not less than the Required Pool
Balance shall be paid to the Certificateholders as provided in the Trust
Agreement or, to the extent requested by any Certificateholder, the amount
otherwise payable to such Certificateholder shall be retained in the Excess
Funding Account at the time and to the extent requested by the
Certificateholders; provided, however, that amounts on deposit in the Excess
Funding Account at any time during which any Series is in its Early Amortization
Period, Accumulation Period, Controlled Amortization Period, Amortization Period
or Investment Period shall be allocated and distributed in accordance with the
Series Supplement.
SECTION 4.6 Net Deposits. The Servicer, the Transferor, the
Indenture Trustee and the Owner Trustee may make any remittances pursuant to
this Article IV net of amounts to be distributed by the applicable recipient to
such remitting party. 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.
SECTION 4.7 New Issuances. The Transferor may from time to
time after the Initial Closing Date direct the Owner Trustee, on behalf of the
Trust, to issue one or more Series of Notes pursuant to Section 2.1 of the
Indenture, with such Principal Terms as shall be specified by the Transferor.
The obligation of the Owner Trustee, on behalf of the Trust, to issue a new
series of Notes and to execute and deliver any related documents, including the
related Series Supplement, is subject to satisfaction of the conditions set
forth in Section 2.1 of the Indenture. Upon satisfaction
26
of those conditions, the Owner Trustee, on behalf of the Trust, shall execute
the Notes, the related Series Supplement and any other related documents and
deliver the authenticated Notes to or upon the order of the Transferor;
provided, however, that the Transferor shall make or cause to be made any
deposit required to be made by it pursuant to the related Series Supplement;
provided, further, that if, after giving effect to all the withdrawals, deposits
and allocations to be made on such day, the Pool Balance would be less than the
Required Pool Balance, the Transferor shall deposit or shall cause to be
deposited into the Excess Funding Account or such other account as may be
provided in the Indenture, a portion of the net proceeds of the sale of such
Notes such that, after giving effect to all of the withdrawals, deposits and
allocations to be made on such date, the Pool Balance is not less than the
Required Pool Balance; provided, further, that the Transferor may deposit, or
cause to be deposited, into the Excess Funding Account, any Principal Funding
Account or any other account all, or any portion, of the net proceeds of the
issuance of any new Series or the increase in the principal amount of any
existing Series remaining after the foregoing uses if, and to the extent, such
funds would otherwise be permitted to be retained by, or distributed to, the
Certificateholders.
ARTICLE V
DISTRIBUTIONS AND REPORTS TO SECURITYHOLDERS
Distributions shall be made to, and reports shall be provided to, the
Securityholders as set forth in the Indenture, the Trust Agreement and the
applicable Series Supplement.
ARTICLE VI
OTHER MATTERS RELATING TO THE SERVICER
SECTION 6.1 Liability of the Servicer. The Servicer shall be
liable under this Article VI only to the extent of the obligations specifically
undertaken by the Servicer in its capacity as Servicer.
SECTION 6.2 Merger or Consolidation of, or Assumption of, the
Obligations of the Servicer. The Servicer shall not consolidate with or merge
into any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(a) the corporation formed by such consolidation or into which
the Servicer is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Servicer substantially as an entirety shall be
a corporation organized and existing under the laws of the United States of
America or any state or the District of Columbia and, if the Servicer is not the
surviving entity, such corporation shall assume, without the execution or filing
of any paper or any further act on the part of any of the parties hereto, the
performance of every covenant and obligation of the Servicer hereunder; and
(b) the Servicer has delivered to the Owner Trustee and the
Indenture Trustee an Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, merger, conveyance or transfer will comply with
this Section 6.2 and that all conditions precedent herein provided for relating
to such transaction have been complied with.
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SECTION 6.3 Limitation on Liability of the Servicer and
Others.
(a) Except as provided in Section 6.4, neither the Servicer
nor any of the directors or officers or employees or agents of the Servicer,
shall be under any liability to the Trust, the Owner Trustee, the Indenture
Trustee, the Securityholders, Enhancement Providers, Agent or any other Person
for any action taken or for refraining from the taking of any action in its
capacity as Servicer pursuant to this Agreement; provided, however, that this
provision shall not protect the Servicer or any such person against any
liability which would otherwise be imposed by reason of wilful misfeasance, bad
faith or negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. The Servicer and any director or
officer or employee or agent of the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Receivables in accordance with this
Agreement which in its reasonable opinion may involve it in any expense or
liability.
(b) Except as provided in this Agreement, the Servicer shall
not be under any obligation to appear in, prosecute or defend any legal action
that is not incidental to its duties to service the Receivables in accordance
with this Agreement and that in its opinion may involve it in any expense or
liability; provided, however, that the Servicer may, in its sole discretion,
undertake any reasonable action that it may deem necessary or desirable in
respect of this Agreement and the rights and duties of the parties to this
Agreement and the interests of the Noteholders and the Certificateholders under
this Agreement, the interests of the Noteholders under the Indenture and the
interests of the Certificateholders under the Trust Agreement.
SECTION 6.4 Servicer Indemnification of the Trust, the
Indenture Trustee and the Owner Trustee.
(a) The Servicer out of its own funds shall indemnify, defend
and hold harmless the Trust, for the benefit of the Certificateholders, the
Beneficiaries, the Owners Trustee and the Indenture Trustee, and their
respective officers, directors, employees and agents, from and against any taxes
that may at any time be asserted against any such Person with respect to the
transactions contemplated in this Agreement, including, without limitation, any
sales, gross receipts, general corporation, tangible personal property,
privilege or license taxes (but not including any taxes asserted with respect
to, or arising out of, (i) the sale of any Eligible Receivables to the Trust
hereunder, (ii) the issuance and original sale of any Securities, (iii)
ownership or sale of any Eligible Receivables in the Accounts in the Pool of
Accounts or the Securities, (iv) distributions or the receipt of payment on the
Securities or (v) any fees or other compensation payable to any such Person
other than the value-based intangibles tax imposed by the State of Florida on
the assets of the Trust, if any) and costs and expenses in defending against the
same.
(b) The Servicer out of its own funds shall indemnify and hold
harmless the Trust, for the benefit of the Certificateholders and the
Beneficiaries, the Owner Trustee and the Indenture Trustee, and their respective
officers, directors, employees and agents, from and against any loss,
28
liability, expense, damage or injury suffered or sustained by reason of any
acts, omissions or alleged acts or omissions arising out of activities of the
Servicer pursuant to this Agreement; provided, however, that the Servicer shall
not indemnify if such acts, omissions or alleged acts or omissions constitute
fraud, gross negligence, breach of fiduciary duty or wilful misconduct by the
Owner Trustee or the Indenture Trustee; and provided further that the Servicer
shall not indemnify for any liabilities, cost or expense of the Trust with
respect to any action taken by the Owner Trustee at the request of the
Certificateholders or any Beneficiaries to the extent the Owner Trustee is fully
indemnified by such Certificateholders or Beneficiaries with respect to such
action.
(c) The Servicer out of its own funds shall indemnify, defend
and hold harmless the Indenture Trustee and the Owner Trustee, and their
respective officers, directors, employees and agents, from and against any loss,
liability, expense, damage or injury arising out of or incurred in connection
with (x) in the case of the Indenture Trustee, the Indenture Trustee's
performance of its duties under the Indenture, (y) in the case of the Owner
Trustee, the Owner Trustee's performance of its duties under the Trust Agreement
or (z) the acceptance, administration or performance by, or action or inaction
of, the Indenture Trustee or the Owner Trustee, as applicable, of the trusts and
duties contained in the Basic Documents, except in each case to the extent that
such cost, expense, loss, claim, damage or liability: (A) is due to the wilful
misfeasance, bad faith or negligence (except for errors in judgment) of the
Person seeking to be indemnified, (B) to the extent otherwise payable to the
Indenture Trustee, arises from the Indenture Trustee's breach of any of its
representations or warranties in Section 6.13 of the Indenture, (C) to the
extent otherwise payable to the Owner Trustee, arises from the Owner Trustee's
breach of any of its representations or warranties set forth in Section 6.6 of
the Trust Agreement or (D) shall arise out of or be incurred in connection with
the performance by the Indenture Trustee of the duties of successor Servicer
hereunder.
(d) Indemnification under this Section 6.4 shall include,
without limitation, any judgment, award, settlement, reasonable attorneys' fees
and expenses and other costs or expenses as incurred in connection with the
defense of any actual or threatened action, proceeding or claim; provided,
however, that if the Servicer has made any indemnity payments pursuant to this
Section 6.4 and the recipient thereafter collects any of such amounts from
others, the recipient shall promptly repay such amounts collected to the
Servicer, without interest.
(e) Any indemnification under this Section 6.4 shall survive
the termination of this Agreement and the resignation and removal of the Owner
Trustee or the Indenture Trustee.
SECTION 6.5 The Servicer Not to Resign. The Servicer shall not
resign from the obligations and duties hereby imposed on it except (a) upon
determination that (i) the performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no reasonable action which
the Servicer could take to make the performance of its duties hereunder
permissible under applicable law or (b) upon satisfaction of the Rating Agency
Condition. Any such determination permitting the resignation of the Servicer
shall be evidenced as to clause (a) above by an Opinion of Counsel to such
effect delivered to the Owner Trustee and the Indenture Trustee. No such
resignation shall become effective until the Indenture Trustee or a Successor
Servicer shall have assumed the responsibilities and obligations of the Servicer
in accordance with Section 7.2 hereof.
29
If the Indenture Trustee is unable within 120 days of the date of such
determination to appoint a Successor Servicer, the Indenture Trustee shall serve
as Successor Servicer hereunder.
SECTION 6.6 Access to the Documentation and Information
Regarding the Receivables. The Servicer shall provide to the Owner Trustee and
the Indenture Trustee access to any and all documentation regarding the Accounts
and the Receivables in such cases where the Owner Trustee and the Indenture
Trustee are required in connection with the enforcement of the rights of the
Securityholders, or by applicable statutes or regulations to review such
documentation, such access being afforded without charge but only (a) upon
reasonable request, (b) during normal business hours, (c) subject to the
Servicer's normal security and confidentiality procedures and (d) at offices
designated by the Servicer. Nothing in this Section 6.6 shall derogate from the
obligation of the Transferor, the Owner Trustee, the Indenture Trustee or the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Dealers and the failure of the Servicer to provide access as
provided in this Section 6.6 as a result of such obligation shall not constitute
a breach of this Section 6.6.
SECTION 6.7 Delegation of Duties. Subject to Section 3.1, in
the ordinary course of business, the Servicer may at any time delegate any
duties hereunder to any Person who agrees to conduct such duties in accordance
with the Floorplan Financing Guidelines and this Agreement. The Servicer shall
give prompt written notice of any such delegation of a material function to the
Owner Trustee, the Indenture Trustee, Rating Agencies, any Agent and any
Enhancement Providers. Such delegation shall not relieve the Servicer of its
liability and responsibility with respect to such duties, shall not constitute a
resignation within the meaning of Section 6.5, and written notice shall have
been delivered to each applicable Rating Agency with respect to such delegation
prior to such delegation.
SECTION 6.8 Examination of Records. The Transferor and the
Servicer shall indicate generally in its computer files or other records that
the Receivables arising in the Accounts have been conveyed to the Trust pursuant
to this Agreement for the benefit of the Certificateholders and the
Beneficiaries. The Transferor and the Servicer shall, prior to the sale or
transfer to a third party of any receivable held in its custody, examine its
computer and other records to determine that such receivable is not a
Receivable.
SECTION 6.9 Additional Expenses. The Servicer covenants and
agrees to pay from time to time out of its own funds such reasonable costs, fees
and expenses as may be incurred by third parties designated by the Transferor in
connection with the provision of services directly or indirectly to the Trust or
otherwise in connection with the facilitation of an offering of the Notes of one
or more classes issued hereunder.
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ARTICLE VII
SERVICING DEFAULTS
SECTION 7.1 Servicing Defaults. If any one of the following
events (a "Servicing Default") shall occur and be continuing with respect to the
Servicer:
(a) any failure by the Servicer to make any payment, transfer
or deposit or to give instructions or to give notice to the Owner Trustee or the
Indenture Trustee to make such payment, transfer or deposit or to give notice to
the Owner Trustee or the Indenture Trustee as to any action to be taken under
any Enhancement Agreement on or before the date occurring five Business Days
after the date such payment, transfer or deposit or such instruction or notice
is required to be made or given, as the case may be, under the terms of this
Agreement;
(b) failure on the part of the Servicer duly to observe or
perform any other covenants or agreements of the Servicer set forth in this
Agreement which has a material adverse effect on the Noteholders of any Series,
which continues unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Indenture Trustee or Owner Trustee; or the
Servicer shall delegate its duties under this Agreement, except as permitted by
Sections 3.1 and 6.7;
(c) any representation, warranty or certification made by the
Servicer in this Agreement or in any certificate delivered pursuant to this
Agreement shall prove to have been incorrect when made, which has a material
adverse effect on the rights of the Noteholders of any Series and which material
adverse effect continues for a period of 60 days after the date on which written
notice thereof, requiring the same to be remedied, shall have been given to the
Servicer by the Indenture Trustee or Owner Trustee; or
(d) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator or other similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Servicer or of or
relating to all or substantially all of its property, or a decree or order of a
court or agency or supervisory authority having jurisdiction in the premises for
the appointment of a conservator or receiver or liquidator or other similar
official in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such decree or order
shall have remained in force undischarged or unstayed, or the Servicer shall
admit in writing its inability to pay its debts generally as they become due,
file a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make any assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations.
In the event any Servicing Default occurs, so long as the
Servicing Default shall not have been remedied, the Indenture Trustee, by notice
then given in writing to the Servicer (a "Termination Notice") with a copy to
the Owner Trustee, may terminate all but not less than all of the rights and
obligations (other than its obligations that have accrued up to the time of such
termination) of the Servicer as Servicer under this Agreement and in and to the
Receivables and the proceeds thereof. After receipt by the Servicer of a
Termination Notice, and on the date that a
31
Successor Servicer shall have been appointed by the Indenture Trustee pursuant
to Section 7.2, all authority and power of the Servicer under this Agreement
shall pass to and be vested in a Successor Servicer (a "Servicing Transfer")
and, without limitation, the Indenture Trustee is hereby authorized and
empowered (upon the failure of the Servicer to cooperate) to execute and
deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all
documents and other instruments upon the failure of the Servicer to execute or
deliver such documents or instruments, and to do and accomplish all other acts
or things necessary or appropriate to effect the purposes of such Servicing
Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such
Successor Servicer in effecting the termination of the responsibilities and
rights of the Servicer to conduct servicing hereunder, including the transfer to
such Successor Servicer of all authority of the Servicer to service the
Receivables provided for under this Agreement, including all authority over all
Collections which shall on the date of transfer be held by the Servicer for
deposit, or which have been deposited by the Servicer, in the Collection
Account, or which shall thereafter be received with respect to the Receivables,
and in assisting the Successor Servicer. The Servicer shall promptly transfer
its electronic records relating to the Receivables to the Successor Servicer in
such electronic form as the Successor Servicer may reasonably request and shall
promptly transfer to the Successor Servicer all other records, correspondence
and documents necessary for the continued servicing of the Receivables in the
manner and at such times as the Successor Servicer shall reasonably request. To
the extent that compliance with this Section 7.1 shall require the Servicer to
disclose to the Successor Servicer information of any kind which the Servicer
reasonably deems to be confidential, the Successor Servicer shall be required to
enter into such customary licensing and confidentiality agreements as the
Servicer shall deem necessary to protect its interest.
Notwithstanding the foregoing, a delay in or failure of
performance under Section 7.1(a) for a period of 10 Business Days or under
Section 7.1(b) or (c) for a period of 60 Business Days, shall not constitute a
Servicing Default if such delay or failure could not be prevented by the
exercise of reasonable diligence by the Servicer and such delay or failure was
caused by an act of God or the public enemy, acts of declared or undeclared war,
public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire,
hurricanes, earthquakes, floods or similar causes. The preceding sentence shall
not relieve the Servicer from using its best efforts to perform its respective
obligations in a timely manner in accordance with the terms of this Agreement
and the Servicer shall provide the Owner Trustee, Indenture Trustee, any Agents,
any Enhancement Providers, the Transferor and the Noteholders with an Officers'
Certificate giving prompt notice of such failure or delay by it, together with a
description of its efforts so to perform its obligations. The Servicer shall
immediately notify the Owner Trustee in writing of any Servicing Default.
SECTION 7.2 Indenture Trustee to Act; Appointment of
Successor. On and after the receipt by the Servicer of a Termination Notice
pursuant to Section 7.1, the Servicer shall continue to perform all servicing
functions under this Agreement until the date specified in the Termination
Notice or otherwise specified by the Indenture Trustee in writing or, if no such
date is specified in such Termination Notice, or otherwise specified by the
Indenture Trustee, until a date mutually agreed upon by the Servicer and the
Indenture Trustee. The Indenture Trustee shall as promptly as possible after the
giving of a Termination Notice appoint an Eligible Servicer as a successor
Servicer (the "Successor Servicer"), subject to the consent of any Enhancement
Providers and any Agents, which consent shall not be unreasonably withheld, and
such Successor Servicer shall
32
accept its appointment by a written assumption in a form acceptable to the
Indenture Trustee. In the event that a Successor Servicer has not been appointed
or has not accepted its appointment at the time when the Servicer ceases to act
as Servicer, the Indenture Trustee without further action shall automatically be
appointed the Successor Servicer. The Indenture Trustee may delegate any of its
servicing obligations to an affiliate or agent in accordance with Sections 3.1
and 6.7. Notwithstanding the above, the Indenture Trustee shall, if it is
legally unable so to act, petition a court of competent jurisdiction to appoint
any established institution having a net worth of not less than $100,000,000 and
whose regular business includes the servicing of wholesale receivables as the
Successor Servicer hereunder. The Indenture Trustee shall immediately give
notice to the Owner Trustee, the Rating Agencies, any Enhancement Providers, any
Agents and the Noteholders upon the appointment of a Successor Servicer.
Notwithstanding anything herein or in the Indenture to the contrary, in no event
shall the Indenture Trustee be liable for any Servicing Fee or for any
differential in the amount of the Servicing Fee paid hereunder and the amount
necessary to induce any Successor Servicer to act as Successor Servicer under
this Agreement and the transactions contemplated hereby.
(a) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof (except that the Successor Servicer shall not be liable for
any liabilities incurred by the predecessor Servicer), and all references in
this Agreement to the Servicer shall be deemed to refer to the Successor
Servicer. Any Successor Servicer, by its acceptance of its appointment, will
automatically agree to be bound by the terms and provisions of any Enhancement
Agreement.
(b) In connection with any Termination Notice, the Indenture
Trustee will review any bids which it obtains from Eligible Servicers and shall
be permitted to appoint any Eligible Servicer submitting such a bid as a
Successor Servicer for servicing compensation not in excess of the Servicing Fee
(provided that if all such bids exceed the Servicing Fee the Transferor at its
own expense shall pay when due the amount of any compensation in excess of the
Servicing Fee); provided, however, that the Transferor shall be responsible for
payment of the Transferor's portion of the Servicing Fee as determined pursuant
to this Agreement and all other amounts in excess of the Investors' Servicing
Fee, and that no such monthly compensation paid out of Collections shall be in
excess of the Investors' Servicing Fee permitted to the Servicer. The Holders of
the Certificates agree that if World Omni (or any Successor Servicer) is
terminated as Servicer hereunder, the portion of Collections to be paid to the
Transferor shall be reduced by an amount sufficient to pay the Transferor's
share of the compensation of the Successor Servicer.
(c) All authority and power granted to the Successor Servicer
under this Agreement shall automatically cease and terminate upon termination of
the Trust pursuant to Section 7.1 of the Trust Agreement, and shall pass to and
be vested in the Transferor and, without limitation, the Transferor is hereby
authorized and empowered to execute and deliver, on behalf of the Successor
Servicer, as attorney-in-fact or otherwise, all documents and other instruments,
and to do and accomplish all other acts or things necessary or appropriate to
effect the purposes of such transfer of servicing rights. The Successor Servicer
agrees to cooperate with the Transferor in effecting the termination of the
responsibilities and rights of the Successor Servicer to conduct servicing on
the Receivables. The Successor Servicer shall transfer its electronic records
relating to the Receivables
33
to the Transferor in such electronic form as the Transferor may reasonably
request and shall transfer all other records, correspondence and documents to
the Transferor in the manner and at such times as the Transferor shall
reasonably request in writing. To the extent that compliance with this Section
7.2 shall require the Successor Servicer to disclose to the Transferor
information of any kind which the Successor Servicer deems to be confidential,
the Transferor shall be required to enter into such customary licensing and
confidentiality agreements as the Successor Servicer shall deem necessary to
protect its interests.
SECTION 7.3 Notification to Securityholders. Upon any
termination of, or appointment of a successor to, the Servicer pursuant to this
Article VII, the Indenture Trustee shall give prompt written notice thereof to
the Noteholders and the Rating Agencies and the Owner Trustee shall give prompt
written notice thereof to the Certificateholders.
SECTION 7.4 Waiver of Past Defaults. Noteholders whose Notes
evidence not less than a majority of the Outstanding Amount of the Notes as of
the close of the preceding Payment Date (or, if all of the Notes have been paid
in full and the Indenture has been discharged in accordance with its terms,
Certificateholders whose Certificates evidence not less than a majority of the
Voting Interests as of the close of the preceding Payment Date) voting as a
single class, may, on behalf of all Securityholders, waive any default by the
Servicer in the performance of its obligations hereunder and under the
Receivables Purchase Agreement and its consequences, except a Servicing Default
under Section 7.1(a) of this Agreement. Upon any such waiver of a past default,
such default shall cease to exist, and any Servicing Default arising therefrom
shall be deemed to have been remedied for every purpose of this Agreement and
the Receivables Purchase Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 Amendment.
(a) This Agreement may be amended from time to time by the
Servicer, the Transferor and the Trust without the consent of any of the
Securityholders or any Enhancement Provider, provided that such action shall not
adversely affect in any material respect the interests of any Noteholder and
prior written notice is given to the Indenture Trustee and the Rating Agencies.
The absence of such materially adverse effect may be evidenced by (i)
satisfaction of the Rating Agency Condition with respect to the affected Notes
in connection with such amendment or (ii) an Officers' Certificate of the
Transferor, addressed and delivered to the Owner Trustee. Notwithstanding
anything contained herein to the contrary, the Owner Trustee may at any time and
from time to time amend, modify or supplement the form of Payment Date
Statement.
(b) This Agreement may also be amended from time to time by
the Servicer, the Transferor and the Trust, with prior written notice to the
Indenture Trustee and the Rating Agencies and either (i) the consent of
Noteholders whose Notes evidence not less than a majority in principal amount of
the Controlling Class of each Series of Notes adversely affected in any material
respect thereby for the purpose of adding any provisions to or changing in any
manner or eliminating any of
34
the provisions of this Agreement or modifying in any manner the rights of the
Noteholders or (ii) satisfaction of the Rating Agency Condition; provided,
however, that no such amendment shall (i) reduce in any manner the amount of or
accelerate or delay the timing of any distributions or payments to be made to
Noteholders or deposits of amounts to be so distributed or the amount available
under any Enhancement, without the consent of the Holder thereof, (ii) change
the definition of or the manner of calculating the interest of any Note without
the consent of each affected Noteholder, (iii) reduce the aforesaid percentage
required to consent to any such amendment without the consent of the Noteholders
or (iv) adversely affect the rating of any Series or class of Notes by any
Rating Agency without the consent of two-thirds of the principal amount of the
outstanding Notes of such Series or Class. Any amendment to be effected pursuant
to this paragraph shall be deemed to adversely affect all outstanding Series,
other than any Series with respect to which such action shall not, as evidenced
by an Officer's Certificate addressed and delivered to the Owner Trustee and the
Indenture Trustee, adversely affect in any material respect the interests of any
Noteholder of such Series. The Owner Trustee may, but shall not be obligated to,
execute and deliver, on behalf of the Trust, any amendment that affects the
Owner Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or
consent (other than an amendment pursuant to paragraph (a)), the Owner Trustee
shall furnish notification of the substance of such amendment to each Noteholder
and the Indenture Trustee, and the Servicer shall furnish notification of the
substance of such amendment to each Rating Agency, each Agent and each
Enhancement Provider.
(d) It shall not be necessary for the consent of Noteholders
under this Section to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Noteholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(e) Notwithstanding anything in this Section to the contrary,
no amendment may be made to this Agreement or any Series Supplement which would
adversely affect in any material respect the interests of any Enhancement
Provider or the Indenture Trustee without the consent of such Enhancement
Provider or the Indenture Trustee, as the case may be.
(f) Any Series Supplement executed in accordance with the
provisions of Article IX of the Indenture shall not be considered an amendment
to this Agreement for the purposes of this Section.
SECTION 8.2 No Petition Covenant. The Servicer, World Omni (if
it is no longer the Servicer) and the Trust, by entering into this Agreement,
each Noteholder, by accepting a Note, each Certificateholder, any Successor
Servicer and the Indenture Trustee, by accepting the benefits of this Agreement,
hereby covenants and agrees that they will not at any time institute against
WODFI any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law.
35
SECTION 8.3 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF OR OF ANY OTHER
JURISDICTION, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 8.4 Notices. All demands, notices and communications
upon or to the Servicer, the Transferor, the Administrator, the Indenture
Trustee, the Trust or the Rating Agencies or any Certificateholder or Noteholder
under this Agreement shall be delivered as specified in Appendix B to this
Agreement.
SECTION 8.5 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed enforceable to the fullest extent permitted, and if not
so permitted, 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
Notes or rights of the Noteholders.
SECTION 8.6 Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Sections 6.2, this Agreement
may not be assigned by the Servicer.
SECTION 8.7 Further Assurances. The Transferor and the
Servicer agree to do and perform, from time to time, any and all acts and to
execute any and all further instruments required or reasonably requested by the
Trust more fully to effect the purposes of this Agreement, including the
execution of any financing statements or continuation statements relating to the
Receivables for filing under the provisions of the UCC of any applicable
jurisdiction.
SECTION 8.8 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trust or the
Noteholders, any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege under this Agreement preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges provided under this
Agreement are cumulative and not exhaustive of any rights, remedies, powers and
privileges provided by law.
SECTION 8.9 Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
SECTION 8.10 Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto, the Indenture
Trustee, the Securityholders, the Enhancement Providers and their respective
successors and permitted assigns. Except as otherwise expressly provided in this
Agreement, no other Person will have any right or obligation hereunder.
36
SECTION 8.11 Action by Owner Trustee. Upon any application or
request by the Transferor or Servicer to the Owner Trustee to take any action
under any provision under this Agreement, the Transferor or Servicer, as the
case may be, shall furnish to the Owner Trustee an Officer's Certificate stating
that all conditions precedent, if any, provided for in this Agreement relating
to the proposed action have been complied with. The Owner Trustee shall be
entitled to conclusively rely on the Officer's Certificate as authority for any
action undertaken in connection therewith.
SECTION 8.12 Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 8.13 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation or
any provision hereof.
SECTION 8.14 Exchange of Transferor Certificates. The Owner
Trustee shall not permit the exchange of a Transferor Certificate unless, in
addition to the conditions contained in the Trust Agreement, the Rating Agency
Condition shall have been satisfied with respect to such exchange.
SECTION 8.15 Effect of Amendment and Restatement. It is the
intent of the parties hereto that this Trust Sale and Servicing Agreement, as
amended and restated as of April 6, 2000, shall as of such date, replace in its
entirety the Original Trust Sale and Servicing Agreement; provided, that with
respect to the period of time from November 22, 1999 through April 5, 2000, the
rights and obligations of the parties shall be governed by the Original Trust
Sale and Servicing Agreement; provided further, that the amendment and
restatement of the Original Trust Sale and Servicing Agreement shall not effect
any of the grants, conveyances or transfers contemplated by the Original Trust
Sale and Servicing Agreement to have occurred prior to the date hereof.
* * * *
37
IN WITNESS WHEREOF, the Transferor, the Servicer and the Trust have
caused this Amended and Restated Trust Sale and Servicing Agreement to be duly
executed by their respective officers as of the day and year first above
written.
WORLD OMNI FINANCIAL CORP.
Servicer,
By
------------------------------------------------
Eric M. Gebhard
Assistant Secretary
WODFI LLC
Transferor,
By
------------------------------------------------
Eric M. Gebhard
Assistant Secretary
WORLD OMNI MASTER OWNER TRUST
By: CHASE MANHATTAN BANK DELAWARE
not in its individual capacity, but solely as Owner
Trustee on behalf of the Trust
By
------------------------------------------------
Name:
Title:
Acknowledged and Accepted:
HARRIS TRUST AND SAVINGS BANK, not in
its individual capacity, but solely as
Indenture Trustee
By
-----------------------------------
Megan F. Carmody
Assistant Vice President
I:\WOFCO\Dnmt00-1\Finals\tssa.fin.wpd
38
APPENDIX A
----------
PART I - DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the following meanings:
"Account" shall mean each Initial Account and, from and after the
related Addition Date, each Additional Account. The term "Account" shall not
apply to any Removed Accounts reassigned or assigned to the Transferor or the
Servicer in accordance with the terms of the Trust Sale and Servicing Agreement.
"Accumulation Period" shall mean, with respect to any Series of Notes,
the period specified in the related Series Supplement, if any.
"Act " shall mean an Act as specified in Section 11.3(a) of the
Indenture.
"Addition Date" shall mean, with respect to Additional Accounts, the
date from and after which such Additional Accounts are to be included as
Accounts pursuant to Section 2.5(c) of the Trust Sale and Servicing Agreement.
"Addition Notice" shall have the meaning specified in Section 2.5(c) of
the Trust Sale and Servicing Agreement.
"Additional Accounts" shall mean each individual wholesale financing
account established with a Dealer pursuant to a Floorplan Financing Agreement,
Asset Based Lending Financing Agreement or relating to a Purchased Participation
Receivable (for which, in the case of a Participation Interest, Asset Based
Receivable or Purchased Participation Receivable, the Modified Rating Agency
Condition has been satisfied), which account is designated pursuant to Section
2.5, of the Trust Sale and Servicing Agreement to be included as an Account and
is identified in the computer file or microfiche or written list delivered to
the Owner Trustee by the Transferor pursuant to Sections 2.1 and 2.5(d) (iii) of
the Trust Sale and Servicing Agreement. For purposes of this definition, a
single Dealer may have multiple Additional Accounts, one relating to Asset Based
Receivables, one relating to Purchased Participation Receivables and one
relating to other Receivables.
"Additional Cut-Off Date" shall mean, with respect to Additional
Accounts, the day specified in the Addition Notice delivered with respect to
such Additional Accounts pursuant to Section 2.5(c) of the Trust Sale and
Servicing Agreement.
"Adjustment Payment" shall have the meaning specified in Section 3.9 of
the Trust Sale and Servicing Agreement.
"Administration Agreement" shall mean that certain Administration
Agreement, dated as of the Initial Closing Date, among World Omni, as
Administrator, the Issuer and the Indenture Trustee, as amended and supplemented
from time to time.
"Administrator" shall mean World Omni or any successor Administrator
under the Administration Agreement.
"Advance Date" shall have the meaning specified in the related Series
Supplement.
"Affiliate" shall mean, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agency Office" shall mean the office of the Issuer maintained pursuant
to Section 3.2 of the Indenture.
"Agent" shall mean, with respect to any Series, the Person so
designated in the related Series Supplement.
"Amortization Period" shall have, with respect to any Series, the
meaning specified in the related Series Supplement.
"Annual Retransfer Date" shall have the meaning specified in Section
3.10(a) of the Trust Sale and Servicing Agreement.
"Annual Servicing Transfer" shall have the meaning specified in Section
3.10(a) of the Trust Sale and Servicing Agreement.
"Annual Transfer Agreement" shall have the meaning specified in Section
3.10(a) of the Trust Sale and Servicing Agreement.
"Annual Transfer Date" shall have the meaning specified in Section
3.10(a) of the Trust Sale and Servicing Agreement.
"Asset Based Lending Business" shall mean the extensions of credit made
by World Omni to Dealers in order to provide loans based on the value of Vehicle
inventory of such Dealer and secured by a first priority security interest in
such Vehicle inventory.
"Asset Based Lending Financing Agreement" shall mean an asset based
lending financing agreement entered into by World Omni and a Dealer in
connection with the Asset Based Lending Business with such Dealer, as amended or
modified from time to time.
"Asset Based Receivable Dealer Overconcentration" shall mean, on any
Determination Date, with respect to any Dealer Group, the excess of (a) the
aggregate Principal Receivables of Asset Based Receivables included in all
accounts of such Dealer Group as of the last day of the immediately
2
preceding Collection Period over (b) 1.0% of the Pool Balance on the last day of
such immediately preceding Collection Period.
"Asset Based Receivable Overconcentrations" shall mean, on any
Determination Date, the excess of (a) the aggregate Principal Receivables
included in all Accounts created pursuant to Asset Based Lending Financing
Agreements as of the last day of the immediately preceding Collection Period
over (b) the product of (i) 3% and (ii) the Pool Balance on the last day of such
immediately preceding Collection Period.
"Asset Based Receivable" shall mean Receivables arising from the Asset
Based Lending Business.
"Assignment" shall have the meaning specified in Section 2.5(d) (iii)
of the Trust Sale and Servicing Agreement.
"Authorized Officer" shall mean with respect to the Issuer, any officer
of the Owner Trustee who is authorized to act for the Owner Trustee in matters
relating to the Issuer and who is identified on the list of Authorized Officers
delivered by the Owner Trustee to the Indenture Trustee on the Initial Closing
Date (as such list may be modified or supplemented from time to time thereafter)
and, so long as the Administration Agreement is in effect, any Vice President or
more senior officer of the Administrator who is authorized to act for the
Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified on
the list of Authorized Officers delivered by the Administrator to the Indenture
Trustee on the Initial Closing Date (as such list may be modified or
supplemented from time to time thereafter). With respect to any other Person,
any Vice President or more senior officer of such Person who is authorized to
act for such Person with respect to such matters.
"Automatic Additional Accounts" shall have the meaning specified in
Section 2.5(b) of the Trust Sale and Servicing Agreement.
"Automatic Removal Date" shall have the meaning specified in Section
2.7(d) (i) of the Trust Sale and Servicing Agreement.
"Automatic Removed Accounts" shall have the meaning specified in
Section 2.7(d) of the Trust Sale and Servicing Agreement.
"Available Subordinated Amount" shall mean, with respect to any Series
at any time of determination, an amount equal to the available subordinated
amount specified in the related Series Supplement at such time.
"Basic Documents" shall mean the Certificate of Trust, the Trust
Agreement, the Receivables Purchase Agreement, the Trust Sale and Servicing
Agreement, the Administration Agreement, the Indenture (including all Series
Supplements), the Enhancement Agreements and the other documents and
certificates delivered in connection therewith from time to time.
3
"Beneficiary" shall mean any of the Holders of the Notes and any
Enhancement Provider.
"Benefit Plan" shall mean any one of (a) an employee benefit plan (as
described in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (b) a plan described in Section 4975(e)(1) of the Code or (c) any
entity whose underlying assets include plan assets by reason of a plan's
investment in such entity.
"Book-Entry Note" shall mean Notes in which ownership and transfers
shall be made through book entries by a Clearing Agency as described in Section
2.10 of the Indenture.
"Business Day" shall mean any day other than (a) a Saturday or a Sunday
or (b) another day on which banking institutions or trust companies in the State
of Florida, the State of New York or the State of Illinois are authorized or
obligated by law, executive order or governmental decree to be closed.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss. 3801 et seq., as the same may be amended from
time to time.
"Certificate" shall mean any one of the Certificates executed by the
Owner Trustee and authenticated by the Owner Trustee in substantially the form
set forth in Exhibit A to the Trust Agreement.
"Certificate Distribution Account" shall mean the account designated as
such, established and maintained pursuant to Section 5.1(a) of the Trust
Agreement.
"Certificate of Trust" shall mean the certificate of trust of the
Issuer substantially in the form of Exhibit B to the Trust Agreement to be filed
for the Trust pursuant to Section 3810(a) of the Business Trust Statute.
"Certificate Register" shall mean the register of Certificates
specified in Section 3.5(a) of the Trust Agreement.
"Certificate Registrar" shall mean the registrar at any time of the
Certificate Register, appointed pursuant to Section 3.5(a) of the Trust
Agreement.
"Certificateholders" shall mean persons in whose name a Certificate is
registered on the Certificate Register.
"Clearing Agency" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Clearing Agency for the
Notes and the Certificates shall be The Depository Trust Company.
"Clearing Agency Participant" shall mean a securities broker, dealer,
bank, trust company, clearing corporation or other financial institution or
other Person for whom from time to time a
4
Clearing Agency effects book entry transfers and pledges of securities deposited
with the Clearing Agency.
"Clearstream" shall mean Clearstream Banking, societe anonyme.
"Closing Date" shall mean, with respect to any Series, the Closing Date
specified in the related Series Supplement, including the Initial Closing Date.
"Code" shall mean the Internal Revenue Code of 1986 as amended, and the
Treasury Regulations promulgated thereunder.
"Collateral" shall mean the collateral specified in the granting clause
of the Indenture.
"Collateral Security" shall mean, with respect to any Receivable and
subject to the terms of the Receivables Purchase Agreement, the security
interest granted by or on behalf of the related Dealer granted to secure payment
of such Receivable, including a first priority perfected security interest in
the related Vehicle, parts inventory, equipment, fixtures, service accounts or
realty with respect to such Dealer and all guarantees of any Receivable.
"Collection Account" shall have the meaning specified in Section 4.2(a)
of the Trust Sale and Servicing Agreement.
"Collection Period" shall mean, with respect to any Payment Date, the
calendar month preceding the month in which such Payment Date occurs.
"Collections" shall mean, without duplication, all payments by or on
behalf of Dealers received by the Servicer in respect of the Receivables, in the
form of cash, checks, wire transfers or any other form of payment; and shall
include, without duplication the amount of any Rebate Payments deposited by the
Servicer into the Collection Account (such amounts being deemed Non-Principal
Collections).
"Common Collateral" shall have the meaning specified in Article VII of
the Receivables Purchase Agreement.
"Common Non-Vehicle Collateral" shall have the meaning specified in
Article VII of the Receivables Purchase Agreement.
"Common Vehicle Collateral" shall have the meaning specified in Article
VII of the Receivables Purchase Agreement.
"Controlled Amortization Period" shall mean, with respect to any Series
of Notes, the period specified in the related Series Supplement, if any.
"Controlling Class" shall mean, with respect to a Series of Notes, (a)
if there is only one class of Notes in that Series, all Notes of that Series and
(b) if there is more than one class of Notes in that Series, the class or
classes with the highest rating.
5
"Corporate Trust Office" shall mean with respect to the Indenture
Trustee or the Owner Trustee, the principal office at which at any particular
time the corporate trust business of the Indenture Trustee or Owner Trustee,
respectively, shall be administered, which offices at the Initial Closing Date
are located:
in the case of the Indenture Trustee, at:
Harris Trust and Savings Bank
311 W. Monroe Street
12th Floor
Chicago, Illinois 60601
Attention: Indenture Trust Administration
Facsimile No.: (312) 461-3525
and in the case of the Owner Trustee, at:
Chase Manhattan Bank Delaware
1201 Market Street, Corporate Trust, 9th Floor
Wilmington, Delaware 19801
Attention: Corporate Trustee Administration
provided that, when the definition of "Corporate Trust Office" is used
in connection with providing notice to the Owner Trustee, a copy of
such notice shall also be sent to:
The Chase Manhattan Bank
450 W. 33rd Street
New York, New York 10001
Attention: Global Trust Services
"Cut-Off Date" shall mean the Initial Cut-Off Date and any Additional
Cut-Off Date, as applicable.
"Date of Processing" shall mean, with respect to any transaction, the
date on which such transaction is first recorded on the Servicer's computer file
of accounts (without regard to the effective date of such recordation).
"Dealer" shall mean a Person engaged generally in the business of
purchasing Vehicles from a manufacturer or distributor thereof and holding such
Vehicles for sale or lease in the ordinary course of business.
"Dealer Concentration Limit" means (i) 8% for each of any two Dealer
Groups designated by the Servicer, (ii) 6% for each of any four Dealer Groups
designated by the Servicer, (iii) 4% for each of any two Dealer Groups
designated by the Servicer, (iv) 3% for each of any seven Dealer Groups
designated by the Servicer, and (v) 2% for each of the remaining Dealer Groups.
6
"Dealer Groups" means any Dealer or group of affiliated Dealers (as
determined in accordance with the Servicer's standard procedures for identifying
and tracking Accounts of affiliated Dealers).
"Dealer Overconcentration" shall mean on any Determination Date, with
respect to any Dealer Group, the excess of (a) the aggregate Principal
Receivables included in all Accounts of such Dealer Group as of the last day of
the immediately preceding Collection Period over (b) the product of (i) the
Dealer Concentration Limit for such Dealer Group and (ii) the Pool Balance on
the last day of such immediately preceding Collection Period.
"Defaulted Amount" for any Collection Period shall mean an amount equal
to the excess, if any, of:
(a) the principal amount of Receivables that become
Defaulted Receivables during the preceding Collection Period
over
(b) the sum of:
(1) The full amount of any Defaulted Receivables
subject to reassignment to the Transferor or purchase by the
Servicer for such Collection Period unless an Insolvency Event
occurs for either of the Transferor or the Servicer, in which
event the Defaulted Amount will not be reduced for those
Defaulted Receivables
and
(2) the Defaulted Amount Carryover for the prior
Collection Period.
"Defaulted Amount Carryover" for any Collection Period shall mean an
amount equal to the excess, if any, of the amount specified in clause (b) of the
definition of Defaulted Amount over the amount specified in clause (a) of the
definition of Defaulted Amount; provided, however, that the Defaulted Amount
Carryover for the Collection Period prior to the October 1999 Collection Period
shall be zero.
"Defaulted Receivables" shall mean (a) all Receivables which are
charged off as uncollectible in respect of the immediately preceding Collection
Period in accordance with the Servicer's customary and usual servicing
procedures for servicing Dealer floorplan receivables comparable to the
Receivables which have not been sold to third parties and (b) all Receivables
which were Eligible Receivables when transferred to the Trust on the Initial
Closing Date or the related Addition Date or on their respective Transfer Date,
which arose in an Account that thereafter became an Ineligible Account and which
remained outstanding for any six consecutive Determination Dates (inclusive of
the Determination Date on which such determination is being made) after such
Account became an Ineligible Account.
7
"Definitive Notes" shall mean the Notes issued pursuant to the
Indenture in definitive form either upon original issuance or upon termination
of book-entry registration with respect to such Notes pursuant to Section 2.12
of the Indenture.
"Delayed Payment Privilege Program" means any arrangement by World Omni
with selected Dealers pursuant to which the Dealer is permitted to delay its
payment on Receivables generally to the earlier of (1) the 20th day after
delivery of the related Vehicle to the end user or (2) receipt of payment for
the related Vehicle from the end user.
"Deposit Date" shall mean each day on which the Servicer deposits
Collections in the Collection Account pursuant to Section 4.3 of the Trust Sale
and Servicing Agreement.
"Depository" shall mean The Depository Trust Company, as initial
Depository, the nominee of which is CEDE & Co., or any other organization
registered as a "clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository shall at all times be a
"clearing corporation" as defined in Section 8-102(3) of the Uniform Commercial
Code of the State of New York.
"Depository Agreement" shall mean, with respect to any Series or Class,
the agreement among the Transferor, the Indenture Trustee and the initial
Depository, dated as of the related Closing Date.
"Depository Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Designated Accounts" shall have the meaning specified in Section
2.6(b)(i) of the Receivables Purchase Agreement.
"Designated Balance" shall have the meaning specified in Section
2.6(b)(ii) of the Receivables Purchase Agreement.
"Designated Receivables" shall have the meaning specified in Section
2.7 (c)(i) of the Trust Sale and Servicing Agreement.
"Determination Date" shall mean, with respect to any Payment Date, the
day that is two Business Days prior to such date.
"Early Amortization Event" shall have the meaning specified in Section
5.17 of the Indenture and, with respect to any Series or class, shall also mean
any Early Amortization Event specified in the related Series Supplement.
"Early Amortization Period" shall mean, with respect to any Series, the
period beginning at the close of business on the Business Day immediately
preceding the day on which the Early Amortization Event is deemed to have
occurred, and in each case ending upon the earlier to occur
8
of (a) the payment in full of the outstanding principal balance of the Notes of
that Series, (b) the Termination Date with respect to such Series and (c) the
recommencement of the Revolving Period for that Series.
"Eligible Account" shall mean each individual wholesale financing
revolving line of credit extended by World Omni to a Dealer pursuant to a
Floorplan Financing Agreement, Asset Based Lending Financing Agreement or
Purchased Participation Receivable Financing Agreement or which has been
acquired by World Omni, which, as of the date of determination with respect
thereto: (a) is established or acquired by World Omni in the ordinary course of
business, (b) is in favor of a Dealer which is an Eligible Dealer, (c) is in
existence and maintained and serviced by or on behalf of World Omni (or a
Successor Servicer) or relates to a Non-Serviced Participation Receivable for
which the Modified Rating Agency Condition has been satisfied and (d) is an
Account for which no amounts have been charged off as uncollectible.
"Eligible Dealer" shall mean a Dealer, as of the date of determination
thereof, (a) which is located in the United States of America (including its
territories and possessions), or such other jurisdiction as shall have been
specified by the Servicer and as to which the Rating Agency Condition shall have
been satisfied, (b) which has not been identified by the Servicer as being the
subject of any voluntary or involuntary bankruptcy proceeding or voluntary or
involuntary liquidation and (c) which is not a government or governmental agency
(including, without limitation, the United States or any states or any state of
the United States or any agency or subdivision thereof).
"Eligible Deposit Account" shall mean either (a) a segregated account
with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the laws
of the United States of America or any one of the states thereof, including the
District of Columbia (or any domestic branch of a foreign bank), having
corporate trust powers and acting as trustee for funds deposited in such
account, so long as any of the securities of such depository institution or
trust company shall have a credit rating from each Rating Agency in one of its
generic rating categories which signifies investment grade.
"Eligible Institution" shall mean (a) the corporate trust department of
the Indenture Trustee or (b) a depository institution or trust company organized
under the laws of the United States of America or any one of the states thereof,
or the District of Columbia (or any domestic branch of a foreign bank), which at
all times (i) has either (A) a long-term unsecured debt rating of Aa2 or better
by Moody's, AA or better by Standard & Poor's and, if rated by Fitch and so long
as Fitch is a Rating Agency, AA or better by Fitch or such other rating that is
acceptable to each Rating Agency, as evidenced by a letter from such Rating
Agency to the Indenture Trustee or (B) a certificate of deposit rating of P-1 by
Moody's, A-1 by Standard & Poor's and, if rated by Fitch and so long as Fitch is
a Rating Agency, F-1 by Fitch or such other rating that is acceptable to each
Rating Agency, as evidenced by a letter from such Rating Agency to the Indenture
Trustee and (ii) whose deposits are insured by the FDIC.
"Eligible Investments" shall mean any of the following in each case
with a remaining term of no more than one year:
9
(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 and so long as Fitch is a
Rating Agency, 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
Notes;
(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 the
Owner Trustee 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 FDIC, 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 Modified Rating Agency Condition has been
satisfied;
(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 Eligible
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 Eligible 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 Pool Balance or the aggregate unpaid
principal balance or face amount, as the case may be, of all Eligible
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 credit
rating from Moody's, Standard & Poor's and, if rated by Fitch and so
long as Fitch is a Rating Agency, Fitch, or the Modified Rating Agency
Condition has been satisfied, 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 Eligible
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
10
Trustee on behalf of the Trust to exceed 10% of either the Pool Balance
or the aggregate unpaid principal balance or face amount, as the case
may be, of all Eligible 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 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 Notes;
(f) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation for which the Modified Rating
Agency Condition has been satisfied;
(g) investments in Eligible 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 FDIC, the short-term
debt of which has the highest available credit rating of Moody's,
Standard & Poor's and, if rated by Fitch and so long as Fitch is a
Rating Agency, Fitch;
(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 (including those
for which the Indenture Trustee acts as investment manager or advisor)
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 shall be rated with the highest available credit rating of Moody's
Standard & Poor's and, if rated by Fitch and so long as Fitch is a
Rating Agency, Fitch, and redemptions shall be permitted on a daily or
next business day basis; and
(j) such other investments for which the Modified Rating
Agency Condition has been satisfied.
Notwithstanding anything to the contrary contained in the foregoing
definition:
(a) no Eligible Investment may be purchased at a premium;
11
(b) any of the foregoing which constitutes a certificated security
shall not be considered an Eligible 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 endorsed to the Indenture Trustee, and (B) (1) such
certificated security is endorsed to the Indenture Trustee or in blank
by an effective endorsement, 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 an Eligible 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 an Eligible 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;
(e) any of the foregoing shall not constitute an Eligible Investment
unless the Indenture Trustee (A) has given value, and (B) does not have notice
of an adverse claim; and
(f) for the purposes of funds held in the Collection Account only,
investments which would otherwise qualify as Eligible Investments but for the
fact that such investments are rated A-1 by Standard & Poor's or F-1 by Fitch
shall be Eligible Investments, so long as the aggregate amount of such
investments does not exceed 10% of the aggregate outstanding principal amount of
all Series of Notes.
"Eligible Receivable" shall mean each Receivable:
(a) which was originated or acquired by World Omni in the
ordinary course of business;
(b) which arose under an Eligible Account;
12
(c) which is owned by World Omni at the time of sale by
World Omni to the Transferor;
(d) which represents the obligation of a Dealer to repay an
advance made to or on behalf of such Dealer (i) to finance the
acquisition of Vehicles or (ii) in connection with the Asset Based
Lending Business;
(e) which at the time of creation and at the time of transfer
to the Trust, except at the Initial Closing Date in the case of
Receivables in respect of which the related financed Vehicle has been
sold, is secured by, inter alia, a first priority perfected security
interest in the Vehicle or Vehicles relating thereto;
(f) which was created in compliance in all respects with all
Requirements of Law applicable thereto and pursuant to a Floorplan
Financing Agreement, Asset Based Lending Financing Agreement or
Purchased Participation Receivable Financing Agreement which complies
in all respects with all Requirements of Law applicable to any party
thereto;
(g) with respect to which all material consents, licenses,
approvals or authorizations of, or registrations or declarations with,
any Governmental Authority required to be obtained, effected or given
by World Omni or the Transferor in connection with the creation of such
Receivable or the transfer thereof to the Trust or the execution,
delivery and performance of the related Floorplan Financing Agreement,
Asset Based Lending Financing Agreement or Purchased Participation
Receivable Financing Agreement pursuant to which such Receivable was
created, have been duly obtained, effected or given and are in full
force and effect;
(h) as to which at all times following the transfer of such
Receivable to the Trust, the Trust will have good and marketable title
thereto free and clear of all Liens arising prior to the transfer or
arising at any time other than Liens permitted by the Trust Sale and
Servicing Agreement or relating to Purchased Participation Receivables;
(i) which has been the subject of a valid transfer and
assignment from the Transferor to the Trust of all the Transferor's
right, title and interest therein (including any proceeds thereof);
(j) which will at all times be the legal, valid, binding and
assignable payment obligation of the Dealer relating thereto,
enforceable against such Dealer in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws, now or
hereafter in effect, affecting the enforcement of creditors' rights in
general and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity);
(k) which at the time of transfer to the Trust is not subject
to any right of rescission, setoff, counterclaim or any other defense
(including defenses arising out of violations of usury laws) of the
Dealer;
13
(l) as to which, at the time of transfer of such Receivable to
the Trust, World Omni and the Transferor have satisfied all their
respective obligations with respect to such Receivable required to be
satisfied at such time;
(m) as to which, at the time of transfer of such Receivable to
the Trust, neither World Omni nor the Transferor has taken or failed to
take any action which would impair the rights of the Trust, the
Certificateholders or the Noteholders therein;
(n) which constitutes an "instrument," "account," "chattel
paper" or "general intangible" as defined in Article 9 of the UCC as
then in effect in the State of Florida; and
(o) which was transferred to the Trust with all applicable
governmental authorization; and
(p) which is payable in U.S. dollars.
"Eligible Servicer" shall mean World Omni or an entity which, at the
time of its appointment as Servicer, (a) is legally qualified and has the
capacity to service the Accounts, (b) in the sole determination of the Indenture
Trustee, which determination shall be conclusive and binding, has demonstrated
the ability to professionally and competently service a portfolio of similar
accounts in accordance with high standards of skill and care and (c) is
qualified to use the software that is then currently being used to service the
Accounts or obtains the right to use or has its own software which is adequate
to perform its duties under this Agreement.
"Enhancement" shall mean the rights and benefits provided to the
Noteholders of any Series or class pursuant to any letter of credit, surety
bond, cash collateral account, spread account, guaranteed rate agreement,
maturity liquidity facility, tax protection agreement, interest rate swap
agreement or other similar arrangement. The subordination of any Series or class
to any other Series or class or of a portion of the Certificates to any Series
or class shall be deemed to be an Enhancement.
"Enhancement Agreement" shall mean any agreement, instrument or
document governing the terms of any Enhancement or pursuant to which any
Enhancement is issued or outstanding.
"Enhancement Provider" shall mean the Person providing any Enhancement,
other than any Certificateholders whose Certificates are subordinated to any
Series or class of Notes.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Event of Default" shall mean an event described in Section 5.1 of the
Indenture.
"Excess Funding Account" shall mean the account designated as such,
established and maintained pursuant to Section 4.2(b) of the Trust Sale and
Servicing Agreement.
14
"Excess Principal Collections" shall mean, for each Series, for any
day, the aggregate amount designated as Series Excess Principal Collections in
the related Series Supplement.
"Excess Receivables" shall mean, on any Determination Date, an
aggregate amount equal to the sum, without duplication, of (A) the aggregate
amount by which Principal Receivables relating to Used Vehicles exceeds 25% of
the aggregate amount of Principal Receivables included in the Trust calculated
as of the last day of the preceding Collection Period, (B) the aggregate amount
of Principal Receivables as of the last day of the preceding Collection Period
in Eligible Accounts that are on "finance hold" for credit reasons by World Omni
as of the last day of such preceding Collection Period, and (C) the aggregate
amount by which Principal Receivables arising in Eligible Accounts under World
Omni's Delayed Payment Privilege Program exceeds 2% of the aggregate amount of
Principal Receivables included in the Trust as of the last day of the preceding
Collection Period; provided that these percentages and dollar limits may be
increased from time to time upon satisfaction of the Rating Agency Condition.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Excluded Series" shall mean any Series of Notes so designated in the
applicable Series Supplement, if any.
"Executive Officer" shall mean, with respect to any corporation, the
Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President, any Vice President, the Secretary, the
Treasurer, Assistant Secretary or Assistant Treasurer of such corporation; and
with respect to any partnership, any general partner thereof.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor entity thereto.
"Final Maturity Date" shall mean, with respect to any Series of Notes,
the date specified in any Series Supplement.
"Fitch" shall mean Fitch IBCA, Inc. or its successor.
"Floorplan Equity Program" means any arrangement pursuant to which
World Omni holds funds for a Dealer for cash management, liquidity and working
capital purposes, which funds may be withdrawn by the Dealer so long as the
Dealer has not defaulted under its floorplan agreements with World Omni, which
funds shall be treated by World Omni as Principal Collections of Receivables and
withdrawals by Dealers will be treated as creating new Receivables.
"Floorplan Financing Agreement" shall mean, collectively, the group of
related agreements between and among World Omni (either as the Originator of a
wholesale financing account or by virtue of assignment of such account to World
Omni by the applicable Originator), the Dealer with respect thereto and, in the
case of new Vehicles, a Vehicle manufacturer or distributor, pursuant to which
(a) World Omni or other applicable Originator agrees to extend credit to such
Dealer to finance used Vehicles and new Vehicles manufactured by such
manufacturer or distributed by such distributor, (b) such Dealer grants to the
applicable Originator a security interest in the specific
15
Vehicles financed by such Originator, certain other Vehicles, certain other
collateral and the proceeds thereof and (c) such Dealer agrees to repay advances
made by the applicable Originator at the time of Vehicle sale or lease.
"Floorplan Financing Guidelines" shall mean the written policies and
procedures of the Originator of an Account, as such policies and procedures may
be amended from time to time, (a) relating to the operation of a floorplan
financing business, including the written policies and procedures for
determining the interest rate charged to Dealers, the other terms and conditions
relating to the applicable Originator's wholesale financing accounts, the
creditworthiness of Dealers and the extension of credit to Dealers, and (b)
relating to the maintenance of accounts and collection of receivables.
"Fully Funded Date" shall mean, with respect to any Series, the date on
which the amount on deposit with the Indenture Trustee for a Series equals the
outstanding principal amount of and accrued interest on the Notes of that Series
and the satisfaction of any other condition specified the related Series
Supplement.
"Governmental Authority" shall mean the United States of America, or
any other jurisdiction applicable to the World Omni, the Transferor or other
Originator of the Receivables as specified in the related Series Supplement, any
state, possession, territory or other political subdivision thereof, and any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Holder" shall mean the Person in whose name a Note or Certificate is
registered on the Note Register or the Certificate Register, as applicable.
"Incremental Subordinated Amount" shall mean, with respect to any
Series at any time of determination, an amount equal to the incremental
subordinated amount specified in the related Series Supplement.
"Indenture" shall mean the indenture agreement between the Trust and
the Indenture Trustee, dated as of the date hereof, as the same may from time to
time be amended, modified or otherwise supplemented.
"Indenture Trustee"shall mean Harris Trust and Savings Bank, an
Illinois banking corporation, not in its individual capacity but solely as
trustee under the Indenture, or any successor trustee under the Indenture.
"Independent" shall mean, when used with respect to any specified
Person, that the Person (a) is in fact independent of the Issuer, any other
obligor upon the Notes, the Transferor and any Affiliate of any of the foregoing
Persons, (b) does not have any direct financial interest or any material
indirect financial interest in the Issuer, any such other obligor, the
Transferor or any Affiliate of any of the foregoing Persons and (c) is not
connected with the Issuer, any such other obligor, the Transferor or any
Affiliate of any of the foregoing Persons as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions.
16
"Independent Certificate" shall mean a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1 of the
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Order and approved by the Indenture Trustee in the exercise of reasonable
care, and such opinion or certificate shall state that the signer has read the
definition of "Independent" and that the signer is Independent within the
meaning thereof.
"Ineligible Account" shall mean an Account that at the time of
determination is not an Eligible Account.
"Ineligible Amount" shall mean on any Determination Date, the amount of
Ineligible Receivables included in the Trust on the last day of the preceding
Collection Period pursuant to Section 2.9 of the Trust Sale and Servicing
Agreement.
"Ineligible Receivable" shall mean any Receivable that at the time of
determination is not an Eligible Receivable.
"Initial Account" shall mean each individual wholesale financing
account established with a Dealer pursuant to a Floorplan Financing Agreement,
Asset Based Lending Financing Agreement or relating to a Purchased Participation
Receivable (for which, in the case of a Participation Interest, Asset Based
Receivable or Purchased Participation Receivable, the Modified Rating Agency
Condition has been satisfied), which account is identified in the computer file
or microfiche or written list delivered to the Owner Trustee on the Initial
Closing Date by the Transferor pursuant to Section 2.1 of the Trust Sale and
Servicing Agreement. For purposes of this definition, a single Dealer may have
multiple accounts, one relating to Asset Based Receivables, one relating to
Purchased Participation Receivables and one relating to other Receivables.
"Initial Closing Date" shall mean November 22, 1999.
"Initial Cut-Off Date" shall mean October 31, 1999.
"Initial Invested Amount" shall mean, with respect to any Series and
for any date, an amount equal to the initial invested amount specified in the
related Series Supplement. The Initial Invested Amount for any Series may be
increased or decreased from time to time as specified in the related Series
Supplement.
"Insolvency Event" shall mean any event specified in Section 5.17, (b),
(c), (d) or (e) of the Indenture.
"Insolvency Laws" shall mean the Bankruptcy Code and any other
applicable federal or State bankruptcy, insolvency or other similar law.
"Insurance Proceeds" shall mean with respect to an Account, shall mean
any amounts received by the Servicer pursuant to any policy of insurance which
is required to be paid to the applicable
17
Originator pursuant to a Floorplan Financing Agreement or Asset Based Lending
Financing Agreement.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
as amended.
"Invested Amount" shall mean, with respect to a Series on any date, the
amount specified in the related Series Supplement. The Invested Amount for any
Series may be increased or decreased from time to time as specified in the
related Series Supplement.
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended.
"Investment Event" shall mean, with respect to any Series of Notes, any
event so defined in the Indenture and the related Series Supplement, if any.
"Investment Period" shall mean, with respect to any Series of Notes,
the period specified in the related Series Supplement.
"Involuntary Case" shall have the meaning specified in Article VI of
the Receivables Purchase Agreement.
"Issuer" shall mean the party named as such in the Indenture until a
successor replaces it and, thereafter, the successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on the
Notes.
"Issuer Order and Issuer Request" shall mean a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (other than Participation Interests or interests
of a third party with respect to Purchased Participation Receivables), including
any conditional sale or other title retention agreement and any financing lease
having substantially the same economic effect as any of the foregoing.
"Manufacturer" shall mean, with respect to any Receivable, the
manufacturer of the Vehicle related to such Receivable.
"Manufacturer Amount" shall mean, on any Determination Date and for
each Manufacturer, the aggregate amount of Principal Receivables related to
Vehicles manufactured by such Manufacturer in Eligible Accounts on the last day
of the preceding Collection Period.
"Manufacturer Limit" shall mean 25% for Ford, General Motors and
DaimlerChrysler and 20% for all other Manufacturers.
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"Manufacturer Overconcentration" shall mean, with respect to any
Manufacturer other than Toyota, on any Determination Date, the excess, if any,
of (x) the aggregate Manufacturer Amount over (y) the product of (i) the
Manufacturer Limit and (ii) the Pool Balance on the last day of the preceding
Collection Period.
"Mega-Dealer Group" shall mean for any Determination Date, each Dealer
Group for which the Servicer has designated a Dealer Concentration Limit greater
than 3%.
"Mega-Dealer Manufacturer Amount" shall mean, on any Determination Date
and for each Manufacturer, the aggregate amount of Principal Receivables related
to Vehicles manufactured by such Manufacturer in Eligible Accounts of each of
the Mega-Dealer Groups on the last day of the preceding Collection Period;
provided, however, that the Mega-Dealer Manufacturer Amount for Toyota will
always be zero.
"Mega-Dealer Group Manufacturer Overconcentration" shall mean, for any
Determination Date, the excess of (1) the sum of the three largest Mega-Dealer
Manufacturer Amounts over (2) 50% of the aggregate amount of Principal
Receivables included in all accounts of each of the Mega- Dealer Groups on the
last day of the preceding Collection Period.
"Minimum Required Pool Balance" shall mean, with respect to any day,
the Required Pool Balance that would result if the Required Pool Balance were
calculated as if the Required Participation Percentage for each Series was 100%.
"Miscellaneous Payments" shall mean, for any date, the sum of
Adjustment Payments and Transfer Deposit Amounts deposited into the Collection
Account on that date available to be treated as Miscellaneous Payments.
"Modified Rating Agency Condition" shall mean, with respect to any
action, that each Rating Agency shall have notified the Transferor, the
Servicer, the Owner Trustee and the Indenture Trustee in writing that such
action will not result in a reduction or withdrawal of the rating of any
outstanding Series or class of Notes with respect to which it is a Rating
Agency, unless otherwise specified in the Series Supplement.
"Monthly Payment Rate" shall mean a fraction, the numerator of which is
the amount of Principal Collections for the immediately preceding Collection
Period and the denominator of which is the daily average Pool Balance for such
Collection Period.
"Monthly Servicing Fee" shall mean, with respect to any, Series the
amount specified therefor in the related Series Supplement.
"Moody's" shall mean Moody's Investors Service, Inc., or its successor.
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"Nonfloorplan Agreement" shall have the meaning specified in Article
VII of the Receivables Purchase Agreement.
19
"Non-Principal Collections" shall mean Collections under the
Receivables other than Principal Collections, provided that all Recoveries shall
be Non-Principal Collections.
"Non-Principal Receivables" with respect to any Account shall mean all
amounts billed to the related Dealer in respect of interest and all other
non-principal charges, including service fees and handling fees.
"Non-Serviced Participation Receivables" shall mean any Purchased
Participation Receivable not serviced by World Omni or any of its Affiliates.
"Note" shall mean any asset-backed Note executed by the Issuer by any
of its Authorized Officers and authenticated by the Indenture Trustee in the
form attached to the Series Supplement applicable to such Series of Notes.
"Note Depository" shall mean with respect to any Book-Entry Notes for
which Definitive Notes have not been issued, any depository selected from time
to time by the Indenture Trustee on behalf of the Trust in whose name a Series
of Notes is registered. The Note Depository shall be Cede & Co., the nominee of
the Clearing Agency for such Series.
"Note Depository Agreement" shall mean with respect to any Series of
Notes originally issued as Book-Entry Notes, the agreement, dated as of the
Closing Date for such Series, among the Issuer, the Indenture Trustee and the
Clearing Agency relating to such Notes, as the same may be amended and
supplemented from time to time.
"Note Owner" shall mean, with respect to a Book-Entry Note, any person
who is a beneficial owner of a Book-Entry Note.
"Note Rate" shall mean, with respect to any Series or Class, the note
rate specified therefor in the related Series Supplement.
"Note Register" shall have the meaning specified in Section 2.4(a) of
the Indenture.
"Note Registrar" shall mean the registrar at any time of the Note
Register, appointed pursuant to Section 2.4 of the Indenture.
"Noteholder" shall mean any Holder of a Note.
"Noteholders' Monthly Servicing Fee" shall mean the portion of the
Servicing Fee allocable to the Noteholders pursuant to the terms of a Series
Supplement.
"Notice Date" shall have the meaning specified in Section 2.5(c) of the
Trust Sale and Servicing Agreement.
"Notice of Default" shall have the meaning set forth in Section 5.1(d)
of the Indenture.
20
"Officers' Certificate" shall mean (i) with respect to any corporation,
unless otherwise specified in this Agreement, a certificate signed by (a) the
Chairman of the Board, Vice Chairman of the Board, President or any Vice
President and (b) a Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary of such corporation and (ii) with respect to any limited liability
company, unless otherwise specified in this Agreement, a certificate signed by
any manager of such limited liability company.
"Opinion of Counsel" shall mean a written opinion of counsel, who may,
except for Tax Opinions and as otherwise expressly provided, be an employee of
the Transferor, the Servicer or World Omni. In addition, for purposes of the
Indenture: (a) such counsel shall be satisfactory to the Indenture Trustee, (b)
the opinion shall be addressed to the Indenture Trustee as Trustee and (c) the
opinion shall comply with any applicable requirements of Section 11.1(a) of the
Indenture and shall be in form and substance satisfactory to the Indenture
Trustee.
"Order" shall have the meaning specified in Article VI of the
Receivables Purchase Agreement.
"Originator" shall mean (i) World Omni and (ii) subject to the prior
approval of the Rating Agencies, such other Person as shall have originated or
underwritten Receivables in the ordinary course of its business under financing
guidelines substantially similar to the Floorplan Financing Guidelines.
"Outstanding" shall mean, with respect to any Notes, as of any
Determination Date, all such Notes theretofore authenticated and delivered under
the Indenture except:
(a) Notes theretofore canceled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation;
(b) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the Indenture Trustee
or any Paying Agent in trust for the Holders of such Notes; provided, however,
that if such Notes are to be redeemed, notice of such redemption has been duly
given pursuant to the Indenture or provision therefore, satisfactory to the
Indenture Trustee, has been made; and
(c) Notes in exchange for or in lieu of other Notes which have
been authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are held
by a bona fide purchaser; provided, however, that in determining whether the
Holders of the requisite Outstanding Amount of the Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or under
any Basic Document, Notes owned by the Issuer, any other obligor upon the Notes,
the Seller or any Affiliate of any of the foregoing Persons shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Indenture Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that the
Indenture Trustee knows to be so owned shall be so disregarded. Notes so owned
that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Indenture Trustee
21
the pledgor's right so to act with respect to such Notes and that the pledgee is
not the Issuer, any other obligor upon the Notes, the Seller or any Affiliate of
any of the forgoing Persons.
"Outstanding Amount" shall mean, as of any date, with respect to any
Series of Notes, the aggregate principal amount of such Notes Outstanding at
such date.
"Overconcentration Amount" on any Determination Date shall mean the
sum, without duplication, of (i) the aggregate Dealer Overconcentrations on such
Determination Date, (ii) the aggregate Manufacturer Overconcentrations on such
Determination Date, (iii) the Asset Based Receivable Overconcentration on such
Determination Date, (iv) the aggregate of the Asset Based Receivable Dealer
Overconcentrations and (v) the aggregate Mega-Dealer Group Manufacturer
Overconcentration on such Determination Date.
"Owner Trust Estate" shall mean all right, title and interest of the
Trust in and to the property and rights assigned to the Trust pursuant to
Article II of the Trust Sale and Servicing Agreement, all funds on deposit from
time to time in the Trust Accounts and the Certificate Distribution Account, the
Enhancement Agreements and all other property of the Trust from time to time,
including any rights of the Owner Trustee and the Trust pursuant to the Trust
Sale and Servicing Agreement and the Administration Agreement.
"Owner Trustee" shall mean Chase Manhattan Bank Delaware, a Delaware
banking corporation, or any successor trustee under the Trust Agreement.
"Participation Agreement" shall mean an agreement between World Omni
and a lender (i) pursuant to which World Omni conveys to such lender an
undivided interest in certain receivables that is pari passu in all respects
(other than nonsubordinated interest strips and fees) with the undivided
interest retained by World Omni and (ii) satisfies the applicable requirements
of the Receivables Purchase Agreement.
"Participation Interest" shall mean the undivided interest, created
pursuant to a Participation Agreement, in a receivable in which a Receivable
represents the remaining undivided interest.
"Pay Down Date" shall have the meaning specified in the related Series
Supplement.
"Paying Agent" shall mean with respect to the Indenture, the Indenture
Trustee or any other Person that meets the eligibility standards for the
Indenture Trustee specified in Section 6.11 of the Indenture and is authorized
by the Issuer to make the payments to and distributions from the Collection
Account and any Principal Funding Account, including payment of principal of or
interest on the Notes on behalf of the Issuer. With respect to the Trust
Agreement, any paying agent or co-paying agent appointed pursuant to Section
3.10 of the Trust Agreement that meets the eligibility standards for the Owner
Trustee specified in Section 6.13 of the Trust Agreement.
"Payment Date" shall mean the fifteenth day of each month or, if such
day is not a Business Day, the next succeeding Business Day.
22
"Payment Date Statement" shall mean, with respect to any Series, a
report prepared by the Servicer on each Determination Date for the immediately
preceding Collection Period in substantially the form set forth in the related
Series Supplement.
"Person" shall mean any legal person, including any individual,
corporation, partnership, limited liability company, association, joint-stock
company, trust, unincorporated organization, governmental entity or other entity
of similar nature.
"Pool Balance" shall mean, as of the time of determination thereof, the
aggregate amount of Principal Receivables, excluding any Defaulted Receivables
after the Payment Date in which it became a Defaulted Receivable in the Trust at
such time, minus the aggregate balance on such date in Dealer accounts in World
Omni's Floorplan Equity Program.
"Predecessor Note" shall mean with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purpose of this definition, any
Note authenticated and delivered under Section 2.5 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note.
"Principal Collections" shall mean Collections of principal under the
Receivables.
"Principal Receivables" with respect to an Account shall mean amounts
shown on the Servicer's records as Receivables (other than such amounts which
represent Non-Principal Receivables) payable by the related Dealer plus the
amount of any Purchased Participation Receivable or interest therein; provided,
that if a Participation Interest has been created in respect of such Account,
the amounts so payable by the related Dealer that are allocable to such
Participation Interest shall not be a part of the "Principal Receivables" with
respect to such Account.
"Principal Shortfalls" shall mean, for any Collection Period, with
respect to any Series of Notes the amounts specified in the related Series
Supplement, if any.
"Principal Terms" shall mean, with respect to any Series: (a) the name
or designation; (b) the initial principal amount (or method for calculating such
amount); (c) the Note Rate (or method for the determination thereof); (d) the
date on which such Series will begin its Accumulation Period or Controlled
Amortization Period; (e) the method for allocating principal and interest to
Noteholders; (f) the percentage used to calculate Monthly Servicing Fees; (g)
the issuer and terms of any form of Enhancement with respect thereto; (h) the
terms on which the Notes of such Series may be exchanged for Notes of another
Series, repurchased by the Transferor or remarketed to other investors; (i) the
final payment date; and (j) any other terms permitted by the Indenture.
"Proceeding" shall mean any suit in equity, action at law or other
judicial or administrative proceeding.
"Purchase Price" shall mean, with respect to any Receivable for any
date on which such Receivable is to be purchased pursuant to Section 3.3(c) of
the Trust Sale and Servicing Agreement or Section 2.3(c) of the Receivables
Purchase Agreement, as applicable, (a) an amount equal to the
23
amount payable by the Dealer in respect thereof as reflected in the records of
the Servicer as of the date of purchase plus, without duplication, (b) interest
accrued from the end of the last Collection Period until the day such Receivable
is purchased in respect of which interest on such Receivable was billed by the
Servicer, at a per annum rate equal to the rate being charged to the Dealer
under the related Floorplan Financing Agreement or Asset Based Lending Financing
Agreement.
"Purchased Participation Receivable" shall mean World Omni's undivided
interest in certain receivables originated by a third party and for which the
Modified Rating Agency Condition has been satisfied.
"Purchased Participation Receivable Financing Agreement" shall mean an
agreement between World Omni and a third party pursuant to which such third
party conveys an undivided interest in certain of its receivables to World Omni.
"Rated Securities" shall mean each class of Securities which has been
rated by a Rating Agency at the request of the Transferor.
"Rating Agency" shall mean, with respect to any outstanding Series or
Class, each nationally recognized statistical rating organization selected by
the Transferor to rate the Notes of such Series or Class, unless otherwise
specified in the Series Supplement.
"Rating Agency Condition" shall mean, with respect to any action, that
each Rating Agency (other than Moody's) shall have given its written approval
that the contemplated action will not result in a reduction or withdrawal of the
rating of any outstanding Series or class of Notes then rated by that Rating
Agency and, if Moody's is a Rating Agency, prior written notice to Moody's.
"Rebate Payment" shall have the meaning specified in Section 3.9(c) of
the Trust Sale and Servicing Agreement.
"Reassignment" shall have the meaning specified in Section 2.7(b) of
the Trust Sale and Servicing Agreement.
"Receivables" shall mean, with respect to an Account, all amounts shown
on the Servicer's records as amounts payable by the related Dealer from time to
time in respect of advances made by World Omni to such Dealer, or advances or
credits made by the related Originator to such Dealer and acquired by World
Omni, in each case to finance Vehicles by such Dealer, together with the group
of writings evidencing such amounts and the security interest created in
connection therewith and shall include any Purchased Participation Receivables
if the Modified Rating Agency Condition has been satisfied with respect to such
Purchased Participation Receivables; provided that if a Participation Interest
has been created in respect of such Account, the amounts so payable by the
related Dealer that are allocable to such Participation Interest shall not be a
part of the "Receivables" in respect of such Account. Receivables which become
Defaulted Receivables shall not be shown on the Servicer's records as amounts
payable (and will cease to be included as Receivables) on the day on which they
become Defaulted Receivables. Receivables which World Omni is unable to transfer
to the Transferor pursuant to the Receivables Purchase Agreement or which the
Transferor is unable
24
to transfer to the Trust pursuant to the Trust Sale and Servicing Agreement and
Receivables which arise in Designated Accounts from and after the related
Removal Commencement Date shall not be included in calculating the amount of
Receivables. With respect to the Servicer's obligations or duties as servicer,
Non-Serviced Participation Receivables shall not be included as Receivables for
such purposes.
"Receivables Purchase Agreement" shall mean the agreement between World
Omni and the Transferor, dated as of the date hereof, governing the terms and
conditions upon which the Transferor is acquiring the initial Receivables
transferred to the Trust on the Initial Closing Date and all Receivables
acquired thereafter, as the same may from time to time be amended, modified or
otherwise supplemented.
"Record Date" shall mean, with respect to any Payment Date, the close
of business on the day preceding such Payment Date; provided that with respect
to any Payment Date for a Series for which Notes have been issued pursuant to
the Indenture, subsequent to the issuance of such Notes the Record Date for such
Payment Date shall be the last day of the month preceding the month in which
such Payment Date occurs.
"Recoveries" on any Determination Date shall mean all amounts received,
including Insurance Proceeds, by the Servicer during the Collection Period
immediately preceding such Determination Date with respect to Receivables which
have previously become Defaulted Receivables.
"Redemption Date" The date specified as such by the Issuer as described
in Sections 10.1 and 10.2 of the Indenture.
"Redemption Price" The price specified in the applicable Series
Supplement.
"Reference Rate" shall mean, with respect to any Receivable, the per
annum rate of interest designated from time to time by the applicable Originator
pursuant to the related Floorplan Financing Agreement or Asset Based Lending
Financing Agreement.
"Removal and Repurchase Date" shall have the meaning specified in
Section 2.7(c) of the Trust Sale and Servicing Agreement.
"Removal and Repurchase Notice Date" shall have the meaning specified
in Section 2.7(c) of the Trust Sale and Servicing Agreement.
"Removal Commencement Date" shall have the meaning specified in Section
2.7(b) of the Trust Sale and Servicing Agreement.
"Removal Date" shall have the meaning specified in Section 2.7(b) (iv)
of the Trust Sale and Servicing Agreement.
"Removal Notice" shall have the meaning specified in Section 2.7(b) of
the Trust Sale and Servicing Agreement.
25
"Removed Account" shall have the meaning specified in Section 2.7(b) of
the Trust Sale and Servicing Agreement.
"Repurchased Receivables" shall have the meaning specified in Section
2.7 of the Trust Sale and Servicing Agreement.
"Repurchased Receivables Purchase Price" shall have the meaning
specified in Section 2.8(b)(iii) of the Trust Sale and Servicing Agreement.
"Required Participation Percentage" shall mean, with respect to any
Series, the percentage specified therefor in the related Series Supplement.
"Required Pool Balance" shall mean, on any day, an amount equal to (a)
the sum of the amounts for each Series (other than any Series or portion thereof
which is designated in the relevant Series Supplement as being an Excluded
Series until the Invested Amount of the Series relating to the Excluded Series
is reduced to zero) obtained by multiplying the Required Participation
Percentage for such Series by the Invested Amount for such Series at such time
plus (b) the Trust Available Subordinated Amount on such day.
"Required Rating" shall mean a rating on commercial paper or other
unsecured debt obligations of Prime-1 by Moody's so long as Moody's is a Rating
Agency, A-1+, AAA-m or AAA-mG by Standard & Poor's so long as Standard & Poor's
is a Rating Agency and, if rated by Fitch, 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 Fitch as provided
above.
"Requirements of Law" for any Person shall mean the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, in each case applicable to or binding upon
such Person or to which such Person is subject, whether federal, state or local
(including usury laws and the federal Truth in Lending Act).
"Reserve Fund" shall mean the account designated as such and
established and maintained pursuant to a Series Supplement.
"Reset Date" shall mean the last day of a Collection Period, any
Advance Date or a Pay Down Date, and any other date specified as a Reset Date in
the related Series Supplement.
"Responsible Officer" shall mean, with respect to the Indenture Trustee
or the Owner Trustee, any officer within the Corporate Trust Office (or any
successor group of the Indenture Trustee or Owner Trustee), including any
managing director, vice president, assistant vice president, secretary,
assistant secretary, vice president or any other officer of the Indenture
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
26
"Revolving Period" shall mean with respect to any Series, the period
specified as such in the related Series Supplement.
"Securities" shall mean the Notes and the Certificates.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securityholders" shall mean the Noteholders and the
Certificateholders.
"Series" shall mean any series of Notes so designated in the Series
Supplement.
"Series Account" shall mean any deposit, trust, escrow, reserve or
similar account maintained for the benefit of the Noteholders of any Series or
class, as specified in any Series Supplement.
"Series Adjusted Invested Amount" shall mean, for any Series on any
day, unless otherwise set forth in the Series Supplement for that Series, an
amount equal to the sum of (a) the Invested Amount of that Series on the most
recent Reset Date (or, during an Early Amortization Period for that series, the
Invested Amount as of the close of business on the date immediately preceding
the day on which such Early Amortization Period began) and (b) the Available
Subordinated Amount, if any, with respect to such Series, on the most recent
Reset Date (or the initial Available Subordinated Amount with respect to any day
occurring prior to the first Reset Date following the related Series Issuance
Date).
"Series Allocable Defaulted Amount" shall mean, with respect to any
Series and for any Collection Period, the product of the Weighted Average Series
Allocation Percentage for that Collection Period and the Defaulted Amount for
that Collection Period.
"Series Allocable Excess Funding Amount" shall mean, with respect to
any Series and for any day, the product of the Series Allocation Percentage on
that day and the amount on deposit in the Excess Funding Account on that day.
"Series Allocable Miscellaneous Payments" shall mean, with respect to
any Series and for any day, the product of the Series Allocation Percentage for
that day and the amount of Miscellaneous Payments for that day.
"Series Allocable Non-Principal Collections" shall mean, with respect
to any Series and for any day, the product of the Series Allocation Percentage
on that day and the amount of Collections of Non-Principal Receivables deposited
in the Collection Account for that day.
"Series Allocable Principal Collections" shall mean, with respect to
any Series and for any day, the product of the Series Allocation Percentage on
that day and the amount of Collections of Principal Receivables deposited in the
Collection Account for that day.
27
"Series Allocation Percentage" shall mean, with respect to any Series
and on any date, the percentage equivalent of a fraction, the numerator of which
is the Series Adjusted Invested Amount and the denominator of which is the Trust
Adjusted Invested Amount.
"Series Cut-Off Date" with respect to any Series, shall have the
meaning specified in the related Series Supplement.
"Series Issuance Date" shall mean, with respect to any Series, the date
on which the Notes of such Series are to be originally issued in accordance with
the Indenture and the related Series Supplement.
"Series Supplement" shall mean, with respect to any Series, a
supplement to the Indenture, executed and delivered in connection with the
original issuance of the Notes of such Series pursuant to Section 2.1 of the
Indenture, and all amendments thereof and supplements thereto.
"Servicer" shall mean, initially, World Omni, in its capacity as
Servicer under the Trust Sale and Servicing Agreement, and after any Servicing
Transfer, the Successor Servicer.
"Servicing Default" shall have the meaning specified in Section 7.1 of
the Trust Sale and Servicing Agreement.
"Servicing Fee" shall have the meaning specified in Section 3.2 of the
Trust Sale and Servicing Agreement.
"Servicing Fee Rate" shall be the rate set forth in the applicable
Series Supplement.
"Servicing Officer" shall mean any officer of the Servicer involved in,
or responsible for, the administration and servicing of the Receivables whose
name appears on a list of servicing officers furnished to the Indenture Trustee
by the Servicer as such list may from time to time be amended.
"Servicing Transfer" shall have the meaning specified in Section 7.1(d)
of the Trust Sale and Servicing Agreement.
"Standard & Poor's" shall mean Standard & Poor's Rating Services, a
division of the McGraw-Hill Companies, Inc. or its successor.
"Specified Trust Termination Date" shall mean December 31, 2020.
"Successor Servicer" shall have the meaning specified in Section 7.2 of
the Trust Sale and Servicing Agreement.
"Supplemental Certificate" shall have the meaning specified in Section
3.4 of the Trust Agreement.
28
"Target Available Subordinated Amount" shall mean, with respect to any
Series and for any day, the Available Subordinated Amount that would result if
the Available Subordinated Amount for each Series was calculated as if the
amount on deposit in the Excess Funding Account was zero and the Incremental
Subordinated Amount was zero.
"Target Invested Amount" shall mean, with respect to any Series and for
any day, the Invested Amount that would result if the Invested Amount for such
Series was calculated as if the amount on deposit in the Excess Funding Account
was zero.
"Tax Opinion" shall mean, with respect to any action, an Opinion of
Counsel to the effect that, for U.S. federal income tax purposes (a) such action
will not cause a taxable event with respect to any Noteholders, (b) in the case
of Section 2.14 of the Indenture, the Notes of the new Series will be
characterized as debt or an interest in a tax partnership (which partnership
will not be treated as a result of issuance of such Notes as a "publicly traded
partnership" within the meaning of Section 7704 of the Code and applicable
Treasury Regulations) and (c) the Trust will not be treated as an association or
publicly traded partnership taxable as a corporation.
"Termination Date" shall mean, with respect to any Series, the
termination date specified in the related Series Supplement.
"Termination Notice" shall have the meaning specified in Section 7.1 of
the Trust Sale and Servicing Agreement.
"Temporary Notes" shall mean the Notes specified in Section 2.3 of the
Indenture.
"Transfer Date" shall have the meaning specified in Section 2.1 of the
Trust Sale and Servicing Agreement.
"Transfer Deposit Amount" shall mean, with respect to any Receivable
reassigned or assigned to the Transferor or the Servicer, as applicable,
pursuant to Section 2.4(c) or Section 3.3(c) of the Trust Sale and Servicing
Agreement, the amounts specified in such Sections.
"Transferor" shall mean WODFI LLC, a Delaware limited liability
company.
"Transferor's Certificate" shall mean the Certificate held by the
Transferor.
"Trust" shall mean the World Omni Master Owner Trust, a Delaware
business trust, the corpus of which shall consist of the Trust Assets.
"Trust Accounts" shall mean the Collection Account, the Excess Funding
Account, and any other account so designated in a Series Supplement,
collectively.
"Trust Adjusted Invested Amount" shall mean, for any day, the sum of
the Series Adjusted Invested Amounts for all outstanding series at such time.
29
"Trust Agreement" shall mean the trust agreement between the Transferor
and the Owner Trustee, dated as of the date hereof, as the same may from time to
time be amended, modified or otherwise supplemented.
"Trust Assets" shall have the meaning specified in Section 2.1 of the
Trust Sale and Servicing Agreement.
"Trust Available Subordinated Amount" shall mean, at any time of
determination, the sum of the Available Subordinated Amounts, if any, for all
outstanding Series at such time.
"Trust Estate" shall mean all money, instruments, rights and other
property that are subject or intended to be subject to the lien and security
interest of the Indenture for the benefit of the Noteholders and (only to the
extent expressly provided in the Indenture) the Certificateholders (including,
without limitation, the Collateral described in the Granting Clause of the
Indenture), including the proceeds thereof, and any other property and interests
that are pledged to the Indenture Trustee for the benefit of Beneficiaries
pursuant to a supplement to the Trust Sale and Servicing Agreement or otherwise.
"Trust Incremental Subordinated Amount" for any Determination Date will
equal the sum of (a) the Overconcentration Amount, (b) the amount of Excess
Receivables and (c) the Ineligible Amount, in each case, on such Determination
Date.
"Trust Indenture Act or TIA" shall mean the Trust Indenture Act of
1939, as amended.
"Trust Sale and Servicing Agreement" shall mean the Trust Sale and
Servicing Agreement, dated as of the date hereof between the Servicer, the
Transferor and the Owner Trustee, as amended and supplemented from time to time.
"Trust Termination Date" shall have the meaning specified in Section
7.1 of the Trust Agreement.
"UCC" shall mean the Uniform Commercial Code, as amended from time to
time, as in effect in any specified jurisdiction.
"Unregistered Note" shall mean any Note that has not been registered
under the Securities Act and is subject to the provisions of Section 2.15 of the
Indenture.
"Used Vehicle" shall mean any Vehicle held for sale by a Dealer that is
determined to be a "used" Vehicle in accordance with the Servicer's standard
wholesale servicing practices.
"Variable Funding Increased Cost Amount" shall have the meaning
specified in the Series Supplement, if any.
"Vehicle" shall mean an automobile or light-duty truck.
30
"Voting Interests" shall mean as of any date, the aggregate outstanding
Certificate Balance of all Certificates; provided, however, that if WODFI and
its affiliates own less than 100% of the Certificates, Certificates owned by
WODFI, the Trust or any Affiliate of WODFI or the Trust (other than the
Transferor) shall be disregarded and deemed not to be outstanding, except that,
in determining whether the Owner Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Certificates that the Owner Trustee knows to be so owned shall be so
disregarded. Certificates so owned that have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Owner Trustee the pledgor's right so to act with respect to such Certificates
and that the pledgee is not WODFI or the Trust or any Affiliate of WODFI or the
Trust (other than the Transferor).
"Weighted Average Series Allocation Percentage" shall mean, with
respect to any Series and for any Collection Period, the sum of the Series
Allocation Percentages for each day during that Collection Period divided by the
number of days in that Collection Period.
"WODFI" shall mean WODFI LLC, a Delaware limited liability company, and
its successors in interest to the extent permitted hereunder.
"World Omni" shall mean World Omni Financial Corp., a Florida
corporation, and its successors in interest.
"WOWI" shall mean World Omni Wholesale, Inc., a wholly-owned subsidiary
of World Omni Financial Corp.
31
APPENDIX A
----------
PART II - RULES OF CONSTRUCTION
(A) Accounting Terms. As used in this Appendix or the Basic Documents,
accounting terms which are not defined, and accounting terms partly
defined, herein or therein shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Appendix or the Basic
Documents are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in
this Appendix or the Basic Documents will control.
(B) "Hereof," etc. The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Appendix or any Basic Document will
refer to this Appendix or such Basic Document as a whole and not to any
particular provision of this Appendix or such Basic Document; and
Section, Schedule and Exhibit references contained in this Appendix or
any Basic Document are references to Sections, Schedules and Exhibits
in or to this Appendix or such Basic Document unless otherwise
specified. The word "or" is not exclusive.
(C) Reference to Distribution Dates. With respect to any Distribution Date,
the "related Collection Period," and the "related Record Date," will
mean the Collection Period and Record Date, respectively, immediately
preceding such Distribution Date, and the relationships among
Collection Periods and Record Dates will be correlative to the
foregoing relationships.
(D) Number and Gender. Each defined term used in this Appendix or the Basic
Documents has a comparable meaning when used in its plural or singular
form. Each gender-specific term used in this Appendix or the Basic
Documents has a comparable meaning whether used in a masculine,
feminine or gender-neutral form.
(E) Including. Whenever the term "including" (whether or not that term is
followed by the phrase "but not limited to" or "without limitation" or
words of similar effect) is used in this Appendix or the Basic
Documents in connection with a listing of items within a particular
classification, that listing will be interpreted to be illustrative
only and will not be interpreted as a limitation on, or exclusive
listing of, the items within that classification.
32
APPENDIX B
----------
NOTICE ADDRESSES AND PROCEDURES
All requests, demands, directions, consents, waivers, notices,
authorizations and communications provided or permitted under any Basic Document
to be made upon, given or furnished to or filed with the Transferor, the
Servicer, the Administrator, the Indenture Trustee, the Issuer, the Owner
Trustee or the Rating Agencies shall be in writing, personally delivered, sent
by facsimile with a copy to follow via first class mail, overnight mail or
mailed by certified mail-return receipt requested, and shall be deemed to have
been duly given upon receipt:
(A) in the case of the Transferor, at the following
address:
WODFI LLC
120 N.W. 12th Avenue
Deerfield Beach, FL 33442
Attn: Assistant Treasurer
with a copy to:
World Omni Financial Corp.
120 N.W. 12th Avenue
Deerfield Beach, FL 33442
Attn: Assistant Treasurer
(B) in the case of the Servicer or the Administrator,
at the following address:
World Omni Financial Corp.
120 N.W. 12th Avenue
Deerfield Beach, FL 33442
Attn: Assistant Treasurer
(C) in the case of the Indenture Trustee, at its
Corporate Trust Office,
(D) in the case of the Issuer or the Owner Trustee,
to the Owner Trustee at its Corporate Trust Office,
Chase Manhattan Bank Delaware
1201 North Market Street
8th Floor
Wilmington, DE 19801
Attn: Michael B. McCarthy
33
with a copy to:
WODFI LLC
120 N.W. 12th Avenue
Deerfield Beach, FL 33442
Attn: Assistant Treasurer
The Issuer shall promptly transmit any notice received by it from the
Noteholders to the Indenture Trustee and the Indenture Trustee shall
likewise promptly transmit any notice received by it from the
Noteholders to the Issuer.
(E) in the case of Moody's Investors Service, Inc., to:
Moody's Investors Service, Inc.
ABS Monitoring Department
99 Church Street
New York, New York 10007
(F) in the case of Standard & Poor's Ratings Services,
to:
Standard & Poor's Ratings Services
55 Water Street
40th Floor
New York, NY 10041-0003
Attention: Asset Backed Surveillance Department
(G) in the case of Fitch, to:
Fitch IBCA, Inc.
1 State Street Plaza
29th Floor
New York, NY 10004
Attention: Asset Backed Surveillance
or at such other address as shall be designated by such Person in a written
notice to the other parties to this Agreement.
Where any Basic Document provides for notice to Noteholders or
Certificateholders of any condition or event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if it is in writing and
mailed, first-class, postage prepaid or by overnight mail to each Noteholder or
Certificateholder affected by such condition or event, at such Person's address
as it appears on the Note Register or Certificate Register, as applicable, not
later than the latest date, and not earlier than the earliest date, prescribed
in such Basic Document for the giving of such notice. If notice to Noteholders
or Certificateholders is given by mail, neither the failure to mail such notice
34
nor any defect in any notice so mailed to any particular Noteholders or
Certificateholders shall affect the sufficiency of such notice with respect to
other Noteholders or Certificateholders, and any notice that is mailed in the
manner herein provided shall conclusively be presumed to have been duly given
regardless of whether such notice is in fact actually received.
35
EXHIBIT A
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.5(a)(iii) of the Trust Sale and Servicing
Agreement).
ASSIGNMENT No. ___ OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of
_________, among WODFI LLC ("WODFI"), as seller, World Omni Master Owner Trust
(the "Trust"), as buyer, and World Omni Financial Corp., as servicer (the
"Servicer") pursuant to the Trust Sale and Servicing Agreement referred to
below.
W I T N E S S E T H :
WHEREAS, the Servicer, WODFI and the Trust are parties to an Amended
and Restated Trust Sale and Servicing Agreement dated as of February ___, 2000
(as amended or supplemented, the "Trust Sale and Servicing Agreement"):
WHEREAS, pursuant to the Trust Sale and Servicing Agreement, WODFI
wishes to designate Additional Accounts to be included as Accounts and to convey
the Receivables and Collateral Security of such Additional Accounts, whether now
existing or hereafter created, to the Trust as part of the corpus of the Trust
(as each such term is defined in the Trust Sale and Servicing Agreement); and
WHEREAS the Trust is willing to accept such designation and conveyance
subject to the terms and conditions hereof;
NOW, THEREFORE, WODFI, the Trust and the Servicer hereby agree as
follows:
1. Defined Terms. All capitalized terms used herein shall have
the meanings ascribed to them in Appendix A of the Trust Sale and Servicing
Agreement unless otherwise defined herein. "Addition Date" shall mean, with
respect to the Additional Accounts designated hereby,
2. Designation of Additional Accounts. WODFI hereby delivers
herewith a computer file or microfiche or written list containing a true and
complete list of all such Additional Accounts specifying for each such Account,
as of the Additional Cut-Off Date, its account number, the aggregate amount of
Receivables outstanding in such Account and the aggregate amount of Principal
Receivables in such Account. Such file or list shall, as of the date of this
Assignment, supplement Schedule 1 to the Trust Sale and Servicing Agreement.
3. Conveyance of Receivables.
(a) WODFI does hereby sell, transfer, assign, set over and
otherwise convey, without recourse (except as expressly provided in the Trust
Sale and Servicing Agreement), to the Trust for the benefit of the
Securityholders and any Enhancement Providers, on the Addition Date
A-1
all of its right, title and interest in, to and under the Receivables in such
Additional Accounts and all Collateral Security with respect thereto, owned by
WODFI and existing at the close of business on the Additional Cut-Off Date and
thereafter created from time to time, all monies due or to become due and all
amounts received with respect thereto and all proceeds of all of the foregoing
(including "proceeds" as defined in Section 9-306 of the UCC as in effect in the
State of Florida) and Recoveries thereof. The foregoing sale, transfer,
assignment, set-over and conveyance does not constitute and is not intended to
result in the creation or an assumption by the Trust of any obligation of the
Servicer, World Omni or any other Person in connection with the Accounts, the
Receivables or under any agreement or instrument relating thereto, including any
obligation to any Dealers.
(b) In connection with such sale, WODFI agrees to record and
file, at its own expense, a financing statement on form UCC-1 (and continuation
statements when applicable) with respect to the Receivables now existing and
hereafter created for the sale of chattel paper, general intangibles or accounts
(as defined in Sections 9-105 and 9-106 of the UCC as in effect in any state
where WODFI's or the Servicer's chief executive offices or books and records
relating to the Receivables are located) meeting the requirements of applicable
state law in such manner and in such jurisdictions as are necessary to perfect
the sale and assignment of the Receivables and the Collateral Security to the
Trust, and to deliver a file-stamped copy of such financing statements or other
evidence of such filing to the Trust on or prior to the Addition Date. In
addition, WODFI shall cause to be timely filed in the appropriate filing office
any form UCC-1 financing statement and continuation statement necessary to
perfect any sale of Receivables to the Trust. The Trust shall be under no
obligation whatsoever to file such financing statement, or a continuation
statement to such financing statement, or to make any other filing under the UCC
in connection with such sale. The parties hereto intend that the sales of
Receivables effected by this Agreement be sales.
(c) In connection with such sale, WODFI further agrees, at its
own expense, on or prior to the Addition Date, to indicate in its computer files
that the Receivables created in connection with the Additional Accounts
designated hereby have been sold and the Collateral Security assigned to the
Trust pursuant to this Assignment for the benefit of the Securityholders and any
Enhancement Providers. In addition, in connection with such sales, WODFI shall
deliver within __ days after the Addition Date to the Owner Trustee all
documents constituting "instruments" (as defined in the UCC as in effect in the
applicable jurisdiction) with such endorsements attached as the Trust may
reasonably require.
4. Acceptance by the Trust. Subject to the satisfaction of the
conditions set forth in Section 6 of this Assignment, the Trust hereby
acknowledges its acceptance of all right, title and interest to the property,
now existing and hereafter created, conveyed to the Trust pursuant to Section
3(a) of this Assignment, and declares that it shall maintain such right, title
and interest, upon the trust herein set forth, for the benefit of the
Securityholders and any Enhancement Providers. The Trust further acknowledges
that, prior to or simultaneously with the execution and delivery of this
Assignment, WODFI delivered to the Trust the computer file or microfiche or
written list relating to the Additional Accounts described in Section 2 of this
Assignment.
5. Representations and Warranties of WODFI. WODFI hereby
represents and warrants to the Trust, as of the date of this Assignment and as
of the Addition Date that:
A-2
(a) Legal, Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of WODFI, enforceable against
WODFI in accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting creditors' rights in general
and except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);
(b) Organization and Good Standing. WODFI is a limited
liability company duly organized and validly existing and in good standing under
the law of the State of Delaware and has, in all material respects, full
corporate power, authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business is presently
conducted, and to execute, deliver and perform its obligations under this
Assignment;
(c) Due Qualification. WODFI is duly qualified to do business
and, where necessary, is in good standing as a foreign corporation (or is exempt
from such requirement) and has obtained all necessary licenses and approvals in
each jurisdiction in which the conduct of its business requires such
qualification except where the failure to so qualify or obtain licenses or
approvals would not have a material adverse effect on its ability to perform its
obligations hereunder;
(d) Eligible Accounts. Each Additional Account designated
hereby is an Eligible Account;
(e) Selection Procedures. No selection procedures believed by
WODFI to be adverse to the interests of the Noteholders, the Certificateholders
or any Enhancement Providers were utilized in selecting the Additional Accounts
designated hereby;
(f) Insolvency. As of the Notice Date and the Addition Date,
WODFI is not insolvent nor, after giving effect to the conveyance set forth in
Section 3 of this Assignment, will it have been made insolvent, nor is it aware
of any pending insolvency;
(g) Valid Transfer. This Assignment constitutes a valid sale,
transfer and assignment to the Trust of all right, title and interest of WODFI
in the Receivables and the related Collateral Security and the proceeds thereof
and upon the filing of the financing statements described in Section 3 of this
Assignment with the Secretary of State of the State of Florida and other
applicable states and, in the case of the Receivables and the Collateral
Security hereafter created and the proceeds thereof, upon the creation thereof,
the Trust shall have a first priority perfected ownership interest in such
property;
(h) Due Authorization. The execution and delivery of this
Assignment and the consummation of the transactions provided for or contemplated
by this Assignment have been duly authorized by WODFI by all necessary action on
the part of WODFI;
(i) No Conflict. The execution and delivery of this
Assignment, the performance of the transactions contemplated by this Assignment
and the fulfillment of the terms hereof, will not
A-3
conflict with, result in any breach of any of the material terms and provisions
of, or constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of trust, or
other instrument to which WODFI is a party or by which it or its properties are
bound;
(j) No Violation. The execution and delivery of this
Assignment by WODFI, the performance of the transactions contemplated by this
Assignment and the fulfillment of the terms hereof will not conflict with or
violate any material Requirements of Law applicable to WODFI;
(k) No Proceedings. There are no proceedings or, to the best
knowledge of WODFI, investigations pending or threatened against WODFI before
any Governmental Authority (i) asserting the invalidity of this Assignment, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Assignment, (iii) seeking any determination or ruling that, in the
reasonable judgment of WODFI, would materially and adversely affect the
performance by WODFI of its obligations under this Assignment, (iv) seeking any
determination or ruling that would materially and adversely affect the validity
or enforceability of this Assignment or (v) seeking to affect adversely the
income tax attributes of the Trust under the United States federal or any State
income, single business or franchise tax systems;
(l) Record of Accounts. As of the Addition Date, Schedule 1 to
this Assignment is an accurate and complete listing in all material respects of
all the Additional Accounts as of the Additional Cut-Off Date and the
information contained therein with respect to the identity of such Accounts and
the Receivables existing thereunder is true and correct in all material respects
as of the Additional Cut-Off Date;
(m) No Liens. Each Receivable and all Collateral Security
existing on the Addition Date has been conveyed to the Trust free and clear of
any Lien;
(n) All Consents Required. With respect to each Receivable and
all Collateral Security existing on the Addition Date, all material consents,
licenses, approvals or authorizations of or registrations or declarations with
any Governmental Authority required to be obtained, effected or given by WODFI
in connection with the conveyance of such Receivable or Collateral Security to
the Trust, the execution and delivery of this Assignment and the performance of
the transactions contemplated hereby have been duly obtained, effected or given
and are in full force and effect; and
(o) Eligible Receivables. On the Additional Cut-Off Date, each
Receivable conveyed to the Trust as of such date is an Eligible Receivable or,
if such Receivable is not an Eligible Receivable, such Receivable is conveyed to
the Trust in accordance with Section 2.9 of the Trust Sale and Servicing
Agreement.
6. Conditions Precedent. The acceptance of the Trust set forth
in Section 4of this Assignment is subject to the satisfaction, on or prior to
the Addition Date, of the following conditions precedent:
A-4
(a) Representations and Warranties. Each of the
representations and warranties made by WODFI in Section 5 of this Assignment
shall be true and correct as of the date of this Assignment and as of the
Addition Date;
(b) Agreement. Each of the conditions set forth in Section
2.5(a) of the Trust Sale and Servicing Agreement (other than Sections
2.4(a)(ii), (iii) (vi), (v) and (vii) in the case of Automatic Additional
Accounts designated by WODFI pursuant to Section 2.5(b) of the Trust Sale and
Servicing Agreement) applicable to the designation of the Additional Accounts to
be designated hereby shall have been satisfied; and
(c) Additional Information. WODFI shall have delivered to the
Trust such information as was reasonably requested by the Trust to satisfy
itself as to the accuracy of the representation and warranty set forth in
Section 5(d) of this Assignment.
7. Ratification of Agreement. As supplemented by this
Assignment, the trust Sale and Servicing Agreement is in all respects ratified
and confirmed and the Trust Sale and Servicing Agreement as so supplemented by
this Assignment shall be read, taken and construed as one and the same
instrument.
8. Counterparts. This Assignment may be executed in two or
more counterparts (and by different parties in separate counterparts),each of
which shall be an original but all of which together shall constitute one and
the same instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS OR
ANY OTHER JURISDICTION'S CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
* * * *
A-5
IN WITNESS WHEREOF, WODFI, Trust and the Servicer have caused this
Assignment to be duly executed and delivered by their respective duly authorized
officers as of the day and the year first above written.
WODFI LLC,
as Transferor
By:
-----------------------------------------
Name:
Title:
WORLD OMNI MASTER OWNER TRUST
By: CHASE MANHATTAN BANK
DELAWARE, not in its individual capacity,
but solely as Owner Trustee on behalf of the
Trust
By:
-----------------------------------------
Name:
Title:
WORLD OMNI FINANCIAL CORP.,
as Servicer
By:
-----------------------------------------
Name:
Title:
A-5
EXHIBIT B
FORM OF ANNUAL SERVICER'S CERTIFICATE
(As required to be delivered on or before (April 30)
of each calendar year beginning with April 30,
2000, pursuant to Section 3.5 of the Trust
Sale and Servicing Agreement)
WORLD OMNI FINANCIAL CORP.
-----------------------------------------------
WORLD OMNI MASTER OWNER TRUST
-----------------------------------------------
The undersigned, duly authorized representatives of World Omni
Financial Corp. ("WOFCO"), as Servicer, pursuant to the Amended and Restated
Trust Sale and Servicing Agreement dated as of February __, 2000 (as amended and
supplemented, or otherwise modified and in effect from time to time, the
"Agreement"), by and among WODFI LLC, as Transferor, WOFCO, as Servicer, and
World Omni Master Owner Trust, as the Trust, do hereby certify that:
1. WOFCO is, as of the date hereof, the Servicer under the
Agreement.
2. The undersigned are Servicing Officers and are duly
authorized pursuant to the Agreement to execute and deliver this Certificate to
the Rating Agencies, the Owner Trustee, the Indenture Trustee, any Agent and any
Enhancement providers.
3. A review of the activities of the Services during the
calendar year ended December 31, ____, and of its performance under the
Agreement was conducted under our supervision.
4. Based on such review, the Servicer has, to the best of our
knowledge, performed in all material respects all of its obligations under the
Agreement throughout such year and no default in the performance of such
obligations has occurred or is continuing except as set forth in paragraph 5
below.
5. The following is a description of each default in the
performance of the Servicer's obligations under the provisions of the Agreement
known to us to have been made by the Servicer during the year ended December 31,
____, which sets forth in detail the (a) nature of each such default, (b) the
action taken by the Servicer, if any, to remedy each such default and (c) the
current status of each such default: (If applicable, insert "None.")
B-1
Capitalized terms used but not defined herein are used as
defined in the Agreement.
IN WITNESS WHEREOF, each of the undersigned has duly executed
this Certificate this ____ day of __________.
By:
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Name:
Title:
By:
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Name:
Title:
B-2
EXHIBIT C
FORM OF OPINION OF COUNSEL
Provisions to be included in Opinion of Counsel to be
delivered pursuant to Section 2.5(a)(ix) of the Trust Sale and Servicing
Agreement.
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
opinion of counsel to WODFI LLC ("WODFI"), delivered on any Closing Date.
Capitalized terms used but not defined herein are used as defined in Part I of
Appendix A to the Amended and Restated Trust Sale and Servicing Agreement, dated
as of February __, 2000 (the "Trust Sale and Servicing Agreement"), between
WODFI, as Transferor, and World Omni Master Owner Trust, as the Trust.
1. The Assignment has been duly authorized, executed and
delivered by WODFI, and constitutes the valid and legally binding obligation of
WODFI, enforceable against WODFI in accordance with its terms.
2. Assuming the Receivables in the Additional Accounts are
created under, and are evidenced solely by, Floorplan Financing Agreements, such
Receivables will constitute either "instruments","general intangibles" or
"chattel paper" as defined under Sections 9-105 and 9-106 of the UCC.
3. With respect to Receivables in the Additional Accounts in
existence on the date hereof [and with respect to Receivables in the Additional
Accounts] that come into existence after the date hereof, upon the creation of
such Receivables and the subsequent transfer of such Receivables to the Trust
free and clear of any Liens in accordance with the Trust Sale and Servicing
Agreement and receipt by WODFI of the consideration therefor required pursuant
to the WODFI Agreement, a bankruptcy court having jurisdiction over WODFI (i)
would not be entitled to compel the turnover of such Receivables or the proceeds
thereof to WODFI under Section 542 of the Bankruptcy Code and (ii) would not be
entitled to treat such Receivables or the proceeds thereof as assets included in
the estate of World Omni pursuant to Section 541 of the Bankruptcy Code or
subject to the automatic stay provision of Section 362(a) of the Bankruptcy
Code.
C-1
EXHIBIT D
FORM OF REASSIGNMENT OF RECEIVABLES
AND ACCOUNTS
(Pursuant to Section 2.7 of the Trust Sale and
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Servicing Agreement referred to below)
REASSIGNMENT NO. _____ OF RECEIVABLES, dated
as of __________, _____ (the "Reassignment"), by and between WODFI LLC, a
limited liability company organized and existing under the laws of the State of
Delaware (the "Transferor"), and World Omni Master Owner Trust, a Delaware
business trust (the "Trust"), pursuant to the Trust Sale and Servicing Agreement
referred to below.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Transferor and the Trust are parties to the
Amended and Restated Trust Sale and Servicing Agreement dated as of February __,
2000 (hereinafter as such agreement may have been, or may from time to time be,
amended, supplemented or otherwise modified, the "Trust Sale and Servicing
Agreement");
WHEREAS, pursuant to the Trust Sale and Servicing Agreement,
the Trust wishes to reconvey to the Transferor all of the Receivables and
proceeds thereof, whether now existing or hereafter created, from the Trust to
the Transferor pursuant to the terms of Section 2.7 of the Trust Sale and
Servicing Agreement (as each such term is defined in the Trust Sale and
Servicing Agreement);
WHEREAS, the Transferor is willing to accept the reconveyance
of the Receivables subject to the terms and conditions hereof;
NOW THEREFORE, the Transferor and the Trust hereby agree as
follows:
1. Defined Terms. All terms defined in the Trust Sale and
Servicing Agreement and used herein shall have such defined meanings when used
herein, unless otherwise defined herein.
"Reassignment Date" shall mean __________ ___, ____.
2. Return of Lists of Accounts. The Trust shall deliver to the
Transferor, not later than three Business Days after the Reassignment Date, each
and every computer file or microfiche list of Accounts delivered to the Trust
pursuant to the terms of the Trust Sale and Servicing Agreement.
3. Conveyance of Receivables.
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a. The Trust does hereby reconvey to the Transferor, without
recourse, on and after the Reassignment Date, all right, title and interest of
the Trust in, to and under each and every Receivable and related Collateral
Security now existing and hereafter created in the Accounts, all monies due or
to become due with respect thereto, including all proceeds of all of the
foregoing (as defined by the appropriate UCC) of such Receivables.
b. In connection with such transfer, the Trust agrees to
execute and deliver to the Transferor on or prior to the date of this
Reassignment, such UCC termination statements as the Transferor may reasonably
request, evidencing the release by the Trust of its Lien on the Receivables.
4. Counterparts. This Reassignment may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
5. Governing Law. This Reassignment shall be construed in
accordance with the laws of the State of New York.
* * * *
D-2
IN WITNESS WHEREOF, the undersigned have caused this
Reassignment of Receivables to be duly executed and delivered by their
respective duly authorized officers on the day and year first above written.
WODFI LLC,
as Transferor
By:
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Name:
Title:
WORLD OMNI MASTER OWNER TRUST
By: CHASE MANHATTAN BANK
DELAWARE, not in its individual
capacity, but solely as Owner Trustee on
behalf of the Trust,
By:
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Name:
Title:
D-3
Schedule 1
LIST OF ACCOUNTS
On file at Kirkland & Ellis
Schedule 2
PROCEEDINGS
As part of its regular examination process of the consolidated federal
income tax returns of JM Family Enterprises and its subsidiaries (including
World Omni) for certain prior years, the IRS is reviewing, among other things,
transactions that were consummated in prior years relating to retail lease
contracts. The IRS has proposed treating these lease transactions as sales
rather than financings for federal income tax purposes, which would affect World
Omni's depreciation deductions. It has also proposed treating the origination
trust and each securitization trust created for those transactions as an
association taxable as a corporation rather than a trust for federal income tax
purposes. In connection with each transaction, World Omni received an opinion of
tax counsel to the effect that these transactions were properly treated as
financings for federal income tax purposes and that neither the origination
trust nor the relevant securitization trusts would be treated as an association
taxable as a corporation for federal income tax purposes. While management
believes that a challenge by the IRS would be unsuccessful, we cannot assure you
of this result. The IRS has also proposed changes to other positions that were
taken on the tax returns it is examining.
Management is vigorously defending its positions and believes that the
ultimate resolution of all of the issues will not have a material adverse effect
on securityholders, JM Family Enterprises' or World Omni's operations and
financial condition. However, if the IRS were to prevail on certain of these
issues, it could have a material adverse effect on JM Family Enterprises' or
World Omni's operations and financial condition. Nevertheless, management
believes that, even if the IRS were to prevail on all of these issues it would
not result in any material impairment of World Omni's ability to perform its
obligations and its duties as Servicer under the Trust Sale and Servicing
Agreement. Management cannot, however, assure you of this result.
Schedule 3
LIST OF TRUST ACCOUNTS
Excess Funding Account
Harris Trust and Savings Bank
ABA 071-000-288
Attn: Megan Carmody 312-461-6030
Further Credit World Omni Master Owner Trust Excess Funding
Acct: 01-11-080-1152297
Collection Account
Harris Trust and Savings Bank
ABA 071-000-288
Attn: Megan Carmody 312-461-6030
Further Credit World Omni Master Owner Trust Collection Account
Acct: __________________