UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report
(Date of earliest event reported):
April 19, 2017
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A
(Issuing Entity with respect to Securities)
(Central Index Key Number: 0001702011)
WORLD OMNI FINANCIAL CORP.
(Sponsor with respect to Securities)
(Central Index Key Number: 0001004150)
WORLD OMNI AUTO RECEIVABLES LLC
(Depositor with respect to Securities)
(Central Index Key Number: 0001083199)
Delaware
(State or other jurisdiction of incorporation or organization)
333-207756-03
(Commission File Number)
52-2184798
(Depositor’s I.R.S. Employer Identification No.)
6189
(Primary Standard Industrial Classification Code Number)
190 Jim Moran Blvd.
Deerfield Beach, FL 33442
(Address of principal executive offices of depositor, including Zip Code)
Depositor’s telephone number, including area code: (954) 429-2200
Former name or former address, if changed since last report: Not applicable
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the depositor under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act (§230.405 of this chapter) or Rule 12b-2 of the Exchange Act (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 8.01. | Other Events. |
On April 19, 2017 (the “Closing Date”), World Omni Auto Receivables LLC, a Delaware limited liability company (the “Depositor”), entered into an amended and restated trust agreement, a copy of which is filed as an exhibit hereto, with Wells Fargo Delaware Trust Company, N.A., as owner trustee (the “Owner Trustee”), relating to World Omni Auto Receivables Trust 2017-A (the “Issuing Entity”), a Delaware statutory trust created on March 13, 2017. On the Closing Date, World Omni Financial Corp. and the Depositor entered into a Receivables Purchase Agreement, a copy of which is filed as an exhibit hereto, pursuant to which specified motor vehicle retail installment sale contracts and related property were sold by World Omni Financial Corp. to the Depositor. On the Closing Date, the Issuing Entity, the Depositor and World Omni Financial Corp., as servicer, entered into a Sale and Servicing Agreement (the “Sale and Servicing Agreement”), a copy of which is filed as an exhibit hereto, pursuant to which motor vehicle retail installment sale contracts and related property were transferred by the Depositor to the Issuing Entity. On the Closing Date, the Issuing Entity issued to the Depositor the asset-backed notes, Series 2017-A, Class A-1, Class A-2a, Class A-2b, Class A-3, Class A-4 and Class B (collectively, the “Notes”), having an aggregate original principal amount of $1,256,450,000, pursuant to an Indenture (the “Indenture”), dated as of the Closing Date, between the Issuing Entity and U.S. Bank National Association, as indenture trustee (the “Indenture Trustee”), a copy of which is filed as an exhibit hereto. On the Closing Date, the Issuing Entity, the Depositor, the Indenture Trustee and World Omni Financial Corp., as administrator, entered into an Administration Agreement, a copy of which is filed as an exhibit hereto, pursuant to which the administrator agreed to perform certain duties and obligations of the Issuing Entity and the Owner Trustee under the transaction documents. On the Closing Date, the Issuing Entity, World Omni Financial Corp., as servicer, and Clayton Fixed Income Services LLC, as asset representations reviewer (the “Asset Representations Reviewer”), entered into an Asset Representations Review Agreement, a copy of which is filed as an exhibit hereto, pursuant to which the Asset Representations Reviewer agreed to perform, upon satisfaction of certain trigger events, reviews of certain receivables for compliance with the representations and warranties made by World Omni Financial Corp. about such receivables.
Interest on the Notes will be distributed on each Payment Date (as defined in Appendix A to the Sale and Servicing Agreement). Monthly distributions in reduction of the principal amount of the Notes will be allocated to the Notes in accordance with the priorities set forth in the Indenture and the Sale and Servicing Agreement.
Item 9.01. | Financial Statements and Exhibits. |
Exhibit No.
|
Description |
Exhibit 4.1 | Sale and Servicing Agreement, dated as of April 19, 2017, by and among World Omni Financial Corp., as servicer, World Omni Auto Receivables LLC, as depositor, and World Omni Auto Receivables Trust 2017-A, as issuing entity. |
Exhibit 4.2 | Indenture, dated as of April 19, 2017, by and between World Omni Auto Receivables Trust 2017-A, as issuing entity, and U.S. Bank National Association, as indenture trustee. |
Exhibit 4.3 | Trust Agreement, dated as of April 19, 2017, by and between World Omni Auto Receivables LLC, as depositor, and Wells Fargo Delaware Trust Company, N.A., as owner trustee. |
Exhibit 99.1 | Receivables Purchase Agreement, dated as of April 19, 2017, by and between World Omni Financial Corp. and World Omni Auto Receivables LLC. |
Exhibit 99.2 | Administration Agreement, dated as of April 19, 2017, by and among World Omni Financial Corp., as administrator, World Omni Auto Receivables LLC, as depositor, World Omni Auto Receivables Trust 2017-A, as issuing entity, and U.S. Bank National Association, as indenture trustee. |
Exhibit 99.3 | Asset Representations Review Agreement, dated as of April 19, 2017, by and among World Omni Auto Receivables Trust 2017-A, World Omni Financial Corp., as servicer, and Clayton Fixed Income Services LLC, as asset representations reviewer. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the depositor has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
WORLD OMNI AUTO RECEIVABLES LLC (Depositor)
| |||
Dated: April 19, 2017 | By: |
/s/ Bryan Romano | |
Name: | Bryan Romano | ||
Its: | Assistant Treasurer |
INDEX OF EXHIBITS
Exhibit No.
|
Description |
Exhibit 4.1 | Sale and Servicing Agreement, dated as of April 19, 2017, by and among World Omni Financial Corp., as servicer, World Omni Auto Receivables LLC, as depositor, and World Omni Auto Receivables Trust 2017-A, as issuing entity. |
Exhibit 4.2 | Indenture, dated as of April 19, 2017, by and between World Omni Auto Receivables Trust 2017-A, as issuing entity, and U.S. Bank National Association, as indenture trustee. |
Exhibit 4.3 | Trust Agreement, dated as of April 19, 2017, by and between World Omni Auto Receivables LLC, as depositor, and Wells Fargo Delaware Trust Company, N.A., as owner trustee. |
Exhibit 99.1 | Receivables Purchase Agreement, dated as of April 19, 2017, by and between World Omni Financial Corp. and World Omni Auto Receivables LLC. |
Exhibit 99.2 | Administration Agreement, dated as of April 19, 2017, by and among World Omni Financial Corp., as administrator, World Omni Auto Receivables LLC, as depositor, World Omni Auto Receivables Trust 2017-A, as issuing entity, and U.S. Bank National Association, as indenture trustee. |
Exhibit 99.3 | Asset Representations Review Agreement, dated as of April 19, 2017, by and among World Omni Auto Receivables Trust 2017-A, World Omni Financial Corp., as servicer, and Clayton Fixed Income Services LLC, as asset representations reviewer. |
Exhibit 4.1
SALE AND SERVICING AGREEMENT
among
WORLD OMNI
AUTO RECEIVABLES TRUST 2017-A
Issuing Entity,
WORLD OMNI
AUTO RECEIVABLES LLC,
Depositor,
and
WORLD OMNI
FINANCIAL CORP.,
Servicer
Series 2017-A
Dated as of April 19, 2017
TABLE OF CONTENTS
Page | ||
ARTICLE I DEFINITIONS | 1 | |
Section 1.01 | Definitions | 1 |
ARTICLE II CONVEYANCE OF RECEIVABLES | 1 | |
Section 2.01 | Conveyance of Receivables | 1 |
Section 2.02 | Intention of Parties | 2 |
ARTICLE III THE RECEIVABLES | 3 | |
Section 3.01 | Representations and Warranties of World Omni with Respect to each Receivable and the Pool of Receivables | 3 |
Section 3.02 | Repurchase upon Breach; Dispute Resolution | 7 |
Section 3.03 | Custody of Receivable Files | 10 |
Section 3.04 | Duties of Servicer as Custodian | 11 |
Section 3.05 | Instructions; Authority To Act | 12 |
Section 3.06 | Custodian’s Indemnification | 12 |
Section 3.07 | Effective Period and Termination | 13 |
ARTICLE IV ADMINISTRATION AND SERVICING OF RECEIVABLES | 13 | |
Section 4.01 | Duties of Servicer | 13 |
Section 4.02 | Collection and Allocation of Receivable Payments | 14 |
Section 4.03 | Realization upon Receivables | 14 |
Section 4.04 | Physical Damage Insurance | 14 |
Section 4.05 | Maintenance of Security Interests in Financed Vehicles | 15 |
Section 4.06 | Covenants of Servicer | 15 |
Section 4.07 | Purchase of Receivables upon Breach | 15 |
Section 4.08 | Servicing Fee | 15 |
Section 4.09 | Servicer’s Certificate | 16 |
Section 4.10 | Annual Statement as to Compliance; Item 1122 Servicing Criteria Assessment; Notice of Default | 16 |
Section 4.11 | Annual Independent Certified Public Accountants’ Report | 17 |
Section 4.12 | Access to Certain Documentation and Information Regarding Receivables | 17 |
Section 4.13 | Servicer Expenses | 17 |
Section 4.14 | Appointment of Subservicer | 17 |
Section 4.15 | Communications Between Noteholders | 17 |
Section 4.16 | Exchange Act Certifications | 18 |
ARTICLE V TRUST ACCOUNTS; DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS AND NOTEHOLDERS | 18 | |
Section 5.01 | Establishment of Trust Accounts | 18 |
Section 5.02 | Collections | 21 |
Section 5.03 | Application of Collections | 21 |
Section 5.04 | [Reserved] | 21 |
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Section 5.05 | Additional Deposits | 21 |
Section 5.06 | Distributions | 21 |
Section 5.07 | Reserve Account | 23 |
Section 5.08 | Statements to Noteholders and Certificateholders | 24 |
Section 5.09 | Net Deposits | 25 |
Section 5.10 | Transfer of Certificates | 25 |
ARTICLE VI THE DEPOSITOR | 26 | |
Section 6.01 | Representations of Depositor | 26 |
Section 6.02 | Limited Liability Company Existence | 27 |
Section 6.03 | Liability of Depositor; Indemnities | 28 |
Section 6.04 | Merger or Consolidation of, or Assumption of Obligations of Depositor | 29 |
Section 6.05 | Limitation on Liability of Depositor and Others | 30 |
Section 6.06 | Depositor May Own Notes | 30 |
Section 6.07 | Security Interest | 30 |
ARTICLE VII THE SERVICER | 30 | |
Section 7.01 | Representations of Servicer | 30 |
Section 7.02 | Indemnities of Servicer | 32 |
Section 7.03 | Merger or Consolidation of, or Assumption of Obligations of, Servicer | 32 |
Section 7.04 | Limitation on Liability of Servicer and Others | 33 |
Section 7.05 | World Omni Not To Resign as Servicer | 33 |
ARTICLE VIII DEFAULT | 34 | |
Section 8.01 | Servicer Default | 34 |
Section 8.02 | Appointment of Successor | 35 |
Section 8.03 | Notification to Noteholders and Certificateholders | 36 |
Section 8.04 | Waiver of Past Defaults | 36 |
Section 8.05 | Payment of Servicing Fees | 36 |
ARTICLE IX TERMINATION | 37 | |
Section 9.01 | Optional Purchase of All Receivables | 37 |
ARTICLE X MISCELLANEOUS | 37 | |
Section 10.01 | Amendment | 37 |
Section 10.02 | Protection of Title to Trust | 38 |
Section 10.03 | Notices | 40 |
Section 10.04 | Assignment by the Depositor or the Servicer | 40 |
Section 10.05 | Limitations on Rights of Others | 41 |
Section 10.06 | Severability | 41 |
Section 10.07 | Separate Counterparts | 41 |
Section 10.08 | Headings | 41 |
Section 10.09 | Governing Law | 41 |
Section 10.10 | Assignment by Issuing Entity | 41 |
Section 10.11 | Nonpetition Covenants | 41 |
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Section 10.12 | Limitation of Liability of Owner Trustee and Indenture Trustee | 42 |
Section 10.13 | Regulation AB | 43 |
Section 10.14 | Notices to the Rating Agencies | 43 |
SCHEDULE A | Schedule of Receivables |
SCHEDULE B | Location of Receivable Files |
EXHIBIT A | Form of Distribution Statement to Noteholders |
EXHIBIT B | Form of Servicer’s Certificate |
EXHIBIT C | Form of SSA Assignment |
APPENDIX A | Definitions and Rules of Construction |
APPENDIX B | Additional Representations and Warranties |
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SALE AND SERVICING AGREEMENT
This SALE AND SERVICING AGREEMENT is dated as of April 19, 2017, among WORLD OMNI AUTO RECEIVABLES TRUST 2017-A, a Delaware statutory trust (the “Issuing Entity”), WORLD OMNI AUTO RECEIVABLES LLC, a Delaware limited liability company (the “Depositor”), as depositor, and WORLD OMNI FINANCIAL CORP., a Florida corporation (“World Omni” or the “Servicer”).
WHEREAS, World Omni has sold the Receivables to the Depositor pursuant to the Receivables Purchase Agreement;
WHEREAS, World Omni Auto Receivables LLC, as depositor, desires to sell the Receivables to the Issuing Entity and the Issuing Entity desires to purchase such receivables; and
WHEREAS, the Servicer is willing to service, to make representations and warranties and to make certain repurchase representations with respect to such Receivables;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Certain capitalized terms used in the above recitals and in this Agreement are defined in and shall have the respective meanings assigned them in Part I of Appendix A to this Agreement. All references herein to “the Agreement” or “this Agreement” are to this 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 such 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 such Appendix A shall be applicable to this Agreement.
ARTICLE II
CONVEYANCE OF RECEIVABLES
Section 2.01 Conveyance of Receivables. In consideration of the Issuing Entity’s delivery to or upon the order of the Depositor of the Notes and the Certificates, on the Closing Date the Depositor does hereby sell, transfer, assign, set over and otherwise convey to the Issuing Entity, without recourse (subject to the obligations of the Depositor set forth herein), pursuant to an assignment in the form attached hereto as Exhibit C (the “SSA Assignment”) all right, title and interest of the Depositor, whether now or hereafter acquired, and wherever located, in and to the following:
(a) the Receivables identified in the Schedule of Receivables to the SSA Assignment delivered to the Issuing Entity (all of which are identified in World Omni’s computer files by a code indicating the Receivables are owned by the Trust and pledged to the Indenture Trustee) and all monies received thereon and in respect thereof after the Cutoff Date;
(b) the security interests in, and the liens on, the Financed Vehicles granted by Obligors in connection with the Receivables and any other interest of the Depositor in such Financed Vehicles;
(c) any proceeds with respect to the Receivables from claims on any physical damage, credit life or disability insurance policies covering such Financed Vehicles or Obligors;
(d) any Financed Vehicle that shall have secured a Receivable and shall have been acquired by or on behalf of the Depositor, the Servicer or the Trust;
(e) all funds on deposit in, and “financial assets” (as such term is defined in the Uniform Commercial Code as from time to time in effect) credited to, the Trust Accounts, including the Reserve Account, from time to time, including the Reserve Account Initial Deposit, and in all investments and proceeds thereof (including all income thereon);
(f) the Receivables Purchase Agreement;
(g) all “accounts,” “chattel paper,” “general intangibles” and “promissory notes” (as such terms are defined in the Uniform Commercial Code as from time to time in effect) constituting or relating to the foregoing; and
(h) the proceeds of any and all of the foregoing; provided, however, that the foregoing items (a) through (h) shall not include the Notes and Certificates.
Section 2.02 Intention of Parties. It is the intention of the Depositor and the Issuing Entity that the assignment and transfer contemplated herein constitute (and shall be construed and treated for all purposes, other than for tax purposes, as) a true and complete sale of the Receivables and the other property of the Depositor specified in Section 2.01 hereof, conveying good title thereto free and clear of any liens and encumbrances, from the Depositor to the Issuing Entity. However, in the event that such conveyance is deemed to be a pledge to secure a loan (in spite of the express intent of the parties hereto that this conveyance constitutes, and shall be construed and treated for all purposes, other than for tax purposes, as a true and complete sale), the Depositor hereby grants to the Issuing Entity, for the benefit of the Noteholders, a first priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Receivables and the other property of the Depositor specified in Section 2.01 hereof whether now existing or hereafter created and all proceeds of the foregoing to secure the loan deemed to be made in connection with such pledge and, in such event, this Agreement shall constitute a security agreement under applicable law.
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ARTICLE III
THE RECEIVABLES
Section 3.01 Representations and Warranties of World Omni with Respect to each Receivable and the Pool of Receivables.
(a) Representations and Warranties With Respect to each Receivable. On the Closing Date, World Omni, which sold the Receivables specified in the SSA Assignment on such date, hereby represents and warrants to the other parties hereto, with respect to such Receivables as of the Cutoff Date:
(i) Characteristics of Receivables. Each Receivable (1) (A) was originated in the United States of America by a Dealer for the retail sale of a Financed Vehicle in the ordinary course of such Dealer’s business, was fully and properly executed or electronically authenticated by the parties thereto, and was purchased by World Omni from such Dealer under an existing dealer agreement, (B) was originated by World Omni, or (C) was originated by an independent third party and acquired by World Omni, (2) contains customary and enforceable provisions such that the rights and remedies of the holder thereof are adequate for realization against the collateral of the benefits of the security, and (3) provides for level monthly payments (provided, that the payment in the first or last month in the life of the Receivable may vary from the level monthly payments and that certain of the Receivables did not require a payment to be made for up to six months from the date of execution of the contract) that fully amortize the Amount Financed by maturity and yield interest at the Annual Percentage Rate.
(ii) Compliance with Law. To the best of World Omni’s knowledge, each Receivable and the sale of the Financed Vehicle complied at the time it was originated or made and, at the execution of this Agreement, complies in all material respects with all requirements of applicable federal, state and local laws and regulations thereunder, including usury laws, the federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade Commission Act, the Magnuson-Moss Warranty Act, the Consumer Financial Protection Bureau’s Regulations B and Z, and State adaptations of the National Consumer Act and of the Uniform Consumer Credit Code, and other consumer credit laws and equal credit opportunity and disclosure laws.
(iii) Binding Obligation. Each Receivable represents the genuine, legal, valid and binding payment obligation in writing of the Obligor, enforceable by the holder thereof 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).
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(iv) No Government Obligor. No Receivable is due from the United States of America or any State or from any agency, department or instrumentality of the United States of America or any State.
(v) Security Interest in Financed Vehicle. Immediately prior to the sale, assignment and transfer thereof, each Receivable shall be secured by a validly perfected first priority security interest in the related Financed Vehicle in favor of World Omni as secured party or all necessary and appropriate actions have been commenced that would result in the valid perfection of a first priority security interest in the Financed Vehicle in favor of the Depositor as secured party and is assignable by World Omni to the Depositor, by the Depositor to the Issuing Entity and by the Issuing Entity to the Indenture Trustee.
(vi) Receivables in Force. No Receivable has been satisfied, subordinated or rescinded, nor has any Financed Vehicle been released from the Lien granted by the related Receivable in whole or in part.
(vii) No Amendments. The Servicer’s computer system does not reflect that any Receivable has been amended such that the amount of the Obligor’s scheduled payments has been increased.
(viii) No Waiver. No provision of a Receivable has been waived, other than a discretionary waiver of a late payment charge or any other fees that may be collected in the ordinary course of servicing a Receivable or in connection with any extension which is reflected in the Servicer’s computer system.
(ix) No Defenses. The Servicer’s computer system does not reflect that any right of rescission, setoff, counterclaim or defense has been asserted or threatened with respect to any Receivable.
(x) No Liens. The Servicer’s computer system does not reflect that any liens or claims have been filed for work, labor or materials relating to a Financed Vehicle that are liens prior or equal to the security interest in the Financed Vehicle granted by any Receivable.
(xi) No Default. No Receivable has a Scheduled Payment for which more than $40 is more than 30 days overdue as of the Cutoff Date, and, except as permitted in this paragraph, the Servicer’s computer system does not reflect that any default, breach, violation or event permitting acceleration under the terms of any Receivable has occurred nor that a continuing condition that with notice or the lapse of time would constitute a default, breach, violation or event permitting acceleration under the terms of any Receivable has arisen; and World Omni has not waived and, except as permitted hereby, shall not waive any of the foregoing.
(xii) Insurance. Under the terms of each Receivable, the related Obligor is required to maintain physical damage insurance covering the Financed Vehicle and to have World Omni named as the loss payee.
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(xiii) Title. No Receivable has been sold, transferred, assigned or pledged (x) by World Omni to any Person other than the Depositor or (y) by the Depositor to any Person other than the Issuing Entity.
(xiv) Lawful Assignment. No Receivable has been originated in, or is subject to the laws of, any jurisdiction under which the sale, transfer and assignment of such Receivable under this Agreement or the Indenture is unlawful, void or voidable.
(xv) One Authoritative Copy or Original. There is only one “authoritative copy” of any Receivable constituting “electronic chattel paper” as defined in the UCC. There is only one executed original of any Receivable constituting “tangible chattel paper” as defined in the UCC.
(xvi) Maturity of Receivables. Each Receivable has a final maturity date not later than July 28, 2023.
(xvii) Scheduled Payments. As of the Cutoff Date, each Receivable had a first scheduled due date on or prior to the end of the third month immediately following the Cutoff Date.
(xviii) Outstanding Principal Balance. Each Receivable has an outstanding principal balance of at least $500.
(xix) No Bankruptcies. No Obligor on any Receivable was noted in the Servicer’s computer system as having filed for bankruptcy.
(xx) No Repossessions. No Receivable was secured by a Financed Vehicle that had been repossessed without reinstatement of the related contract.
(xxi) Chattel Paper. Each Receivable constitutes “electronic chattel paper” or “tangible chattel paper” as defined in the UCC.
(xxii) Prepayment. Each Receivable provides that a prepayment by the related Obligor will fully pay the principal balance and accrued interest through the date of prepayment based on such Receivable’s Annual Percentage Rate.
(b) Representations and Warranties With Respect to the Pool of Receivables. On the Closing Date, World Omni, which sold the Receivables specified in the SSA Assignment on such date, hereby makes the representations and warranties set forth in Appendix B hereto, and hereby represents and warrants to the other parties hereto, with respect to such pool of Receivables as of the Cutoff Date:
(i) Schedule of Receivables. The information set forth in the Schedule of Receivables is true and correct in all material respects as of the close of business on the Cutoff Date, and no selection procedures believed by World Omni to be adverse to the Noteholders were utilized in selecting the Receivables. The computer tape or other listing regarding the Receivables made available to the Issuing Entity and its assigns (which computer tape or other listing is required to be delivered as specified herein) is true and correct in all material respects.
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(ii) Title. Immediately prior to the transfer and assignment contemplated in the Receivables Purchase Agreement, World Omni had good and marketable title to the Receivables free and clear of all Liens, encumbrances, security interests and rights of others and, immediately upon the transfer thereof, the Depositor shall have good and marketable title to the Receivables, free and clear of all Liens, encumbrances, security interests and rights of others; and the transfer has been perfected under the UCC (to the extent a security interest in such property may be perfected by filing under the applicable UCC) except, in each case, for liens and encumbrances that will be released concurrent with the transfer of Receivables pursuant to the Receivables Purchase Agreement. Immediately prior to the transfer and assignment herein contemplated, the Depositor had good and marketable title to the property conveyed to the Issuing Entity pursuant to Section 2.01 or 2.03 of this Agreement, as applicable, free and clear of all Liens, encumbrances, security interests and rights of others and, immediately upon the transfer thereof, the Issuing Entity shall have good and marketable title to the Receivables, free and clear of all Liens, encumbrances, security interests and rights of others; and the transfer has been perfected under the UCC (to the extent a security interest in such property may be perfected by filing under the applicable UCC).
(iii) All Filings Made. All filings (including UCC filings) necessary in any jurisdiction to give the Issuing Entity a first perfected ownership interest in the Receivables, and to give the Indenture Trustee a first perfected security interest therein, shall have been made.
(iv) Location of Receivable Files. The Receivable Files are, and will be, kept at the locations listed in Schedule B or at such other office or location as shall be specified to the Issuing Entity and the Indenture Trustee by written notice prior to any change in location together with the Opinion of Counsel required by Section 10.02(j).
(v) Computer Records. World Omni and the Depositor will cause their accounting and computer records to be marked to indicate the sale and assignment of the Receivables from World Omni to the Depositor and from the Depositor to the Trust.
(vi) Computer Code. Each of the Receivables is identified on World Omni’s computer files by a code indicating the Receivables are owned by the Trust and pledged to the Indenture Trustee. The Receivables are the only Contracts listed on the Schedule of Receivables, are the only Contracts identified on World Omni’s computer files by such code, and are not identified on World Omni’s computer files by any other code.
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Section 3.02 Repurchase upon Breach; Dispute Resolution.
(a) Investigation of Breach. If World Omni (i) has knowledge of a breach of a representation or warranty made in Section 3.01(a), (ii) receives notice from the Depositor, the Issuing Entity, the Owner Trustee or the Indenture Trustee of a breach of a representation or warranty made in Section 3.01(a), (iii) receives a Repurchase Request from the Owner Trustee or the Indenture Trustee for a Receivable or (iv) receives a Review Report that indicates a Test Fail for a Receivable, then, in each case, World Omni will investigate the Receivable to confirm the breach and determine if the breach has a material adverse effect on the Receivable. None of the Servicer, the Issuing Entity, the Owner Trustee, the Indenture Trustee, the Asset Representations Reviewer or the Administrator will have an obligation to investigate whether a breach of any representation or warranty has occurred or whether any Receivable is required to be repurchased under Section 3.02(b). The Depositor, the Servicer or the Trust, as the case may be, shall inform the other parties to this Agreement and the Indenture Trustee promptly, in writing, upon the discovery of any breach of World Omni’s representations and warranties made pursuant to Section 3.01(a).
(b) Repurchase. Unless any such breach shall have been cured by the last day of the second Collection Period following the discovery thereof or receipt of notice thereof by World Omni as described in Section 3.02(a), World Omni shall be obligated to repurchase any Receivable materially and adversely affected by any such breach as of such last day (or, at World Omni’s option, the last day of the first Collection Period following the discovery) and World Omni shall deliver a revised Schedule of Receivables to the Depositor and the Trust which shall reflect the repurchase of such Receivables). In consideration of the repurchase of any such Receivable, World Omni shall remit the Purchase Amount, in the manner specified in Section 5.05. Upon such repurchase, the Issuing Entity will, without further action, be deemed to have sold and assigned to World Omni all of the Issuing Entity’s right, title and interest in the Receivable repurchased by World Omni under this Section 3.02(b) and all security and documents relating to the Receivable. The sale will not require any action by the Issuing Entity and will be without recourse, representation or warranty by the Issuing Entity except the representation that the Issuing Entity owns the Receivable free and clear of any Lien, other than a Lien pursuant to the Basic Documents. On the sale, the Servicer will mark its receivables systems to indicate that the receivable is no longer a Receivable and may take any action necessary or advisable to evidence the sale of the receivable, free from any Lien of the Issuing Entity or the Indenture Trustee. Subject to the provisions of Section 6.03, the sole remedy of the Issuing Entity, the Owner Trustee, the Indenture Trustee, the Noteholders or the Certificateholders with respect to a breach of representations and warranties pursuant to Section 3.01(a) and the agreement contained in this Section shall be to require World Omni to repurchase Receivables pursuant to this Section, subject to the conditions contained herein.
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(c) Dispute Resolution.
(i) Referral to Dispute Resolution. If the Issuing Entity, the Owner Trustee, the Indenture Trustee, a Noteholder or a Note Owner (the “Requesting Party”) requests that World Omni repurchase a Receivable due to an alleged breach of a representation and warranty in Section 3.01(a) (which repurchase request shall provide sufficient detail so as to allow World Omni to reasonably investigate the alleged breach of the representations and warranties in Section 3.01(a); provided that with respect to a repurchase request from a Noteholder or a Note Owner, such repurchase request shall initially be provided to the Indenture Trustee) (each, a “Repurchase Request”), and the Repurchase Request has not been resolved, the alleged breach has not otherwise been cured or the related Receivable has not otherwise been repurchased, paid-off or otherwise satisfied, within 180 days of the receipt of notice of the Repurchase Request by World Omni, the Requesting Party may refer the matter, in its discretion, to either mediation (including non-binding arbitration) or binding third-party arbitration by filing in accordance with ADR Rules and providing a notice to World Omni. The Requesting Party must start the mediation (including non-binding arbitration) or arbitration proceeding according to the ADR Rules of the ADR Organization within 90 days after the end of the 180-day period. World Omni agrees to participate in the dispute resolution method selected by the Requesting Party. However, if the Receivable subject to a Repurchase Request was part of a Review and the Review Report states no Test Fails for the Receivable, the Repurchase Request for the Receivable will be deemed to have been resolved.
(ii) Mediation. If the Requesting Party selects mediation for dispute resolution:
(A) The mediation will be administered by the ADR Organization using its ADR Rules. However, if any ADR Rules are inconsistent with the procedures for mediation stated in this Section 3.02(c), the procedures in this Section 3.02(c) will control.
(B) A single mediator will be selected by the ADR Organization from a list of neutrals maintained by it according to the ADR Rules. The mediator must be impartial, an attorney admitted to practice in the State of New York and have at least 15 years of experience in commercial litigation and, if possible, consumer finance or asset-backed securitization matters.
(C) The mediation will start within 15 days after the selection of the mediator and conclude within 30 days after the start of the mediation.
(D) Expenses of the mediation will be allocated among the parties as mutually agreed by them as part of the mediation.
(E) If the parties fail to agree at the completion of the mediation, the Requesting Party may refer the Repurchase Request to arbitration under this Section 3.02(c) or may seek adjudication of the Repurchase Request in court.
(iii) Binding Arbitration. If the Requesting Party selects arbitration for dispute resolution:
(A) The arbitration will be administered by the ADR Organization using its ADR Rules. However, if any ADR Rules are inconsistent with the procedures for arbitration stated in this Section 3.02(c), the procedures in this Section 3.02(c) will control.
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(B) A single arbitrator will be selected by the ADR Organization from a list of neutrals maintained by it according to the ADR Rules. The arbitrator must be impartial, an attorney admitted to practice in the State of New York and have at least 15 years of experience in commercial litigation and, if possible, consumer finance or asset-backed securitization matters. The arbitrator will be independent and impartial and will comply with the Code of Ethics for Arbitrators in Commercial Disputes in effect at the time of the arbitration. Before accepting an appointment, the arbitrator must promptly disclose any circumstances likely to create a reasonable inference of bias or conflict of interest or likely to preclude completion of the proceedings within the stated time schedule. The arbitrator may be removed by the ADR Organization for cause consisting of actual bias, conflict of interest or other serious potential for conflict.
(C) The arbitrator will have the authority to schedule, hear and determine any motions, including dispositive and discovery motions, according to New York law, and will do so at the motion of any party. Discovery will be completed within 30 days of selection of the arbitrator and will be limited for each party to two witness depositions not to exceed five hours, two interrogatories, one document request and one request for admissions. However, the arbitrator may grant additional discovery on a showing of good cause that the additional discovery is reasonable and necessary. Briefs will be limited to no more than ten pages each, and will be limited to initial statements of the case, motions and a pre-hearing brief. The evidentiary hearing on the merits will start no later than 60 days after selection of the arbitrator and will proceed for no more than six consecutive Business Days with equal time allocated to each party for the presentation of evidence and cross examination. The arbitrator may allow additional time for discovery and hearings on a showing of good cause or due to unavoidable delays.
(D) The arbitrator will make its final determination no later than 90 days after its selection. The arbitrator will resolve the dispute according to the terms of this Agreement and the other Basic Documents, and may not modify or change this Agreement or the other Basic Documents in any way or award remedies not consistent with the Basic Documents. The arbitrator will not have the power to award punitive damages or consequential damages in any arbitration conducted by it. In its final determination, the arbitrator will determine and award the expenses of the arbitration (including filing fees, the fees of the arbitrator, expense of any record or transcript of the arbitration and administrative fees) to the parties in its reasonable discretion. The determination of the arbitrator will be in writing and counterpart copies will be promptly delivered to the parties. The determination will be final and non-appealable, except for actions to confirm or vacate the determination permitted under federal or State law, and may be entered and enforced in any court of competent jurisdiction over the parties and the matter.
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(E) By selecting binding arbitration, the Requesting Party is giving up the right to sue in court, including the right to a trial by jury.
(F) The Requesting Party may not bring a putative or certificated class action to arbitration. If this waiver of class action rights is found to be unenforceable for any reason, the Requesting Party agrees that it will bring its claims in a court of competent jurisdiction.
(iv) Additional Conditions. For each mediation or arbitration:
(A) Any mediation or arbitration will be held in New York, New York at the offices of the mediator or arbitrator or at another location selected by World Omni. Any party or witness may participate by teleconference or video conference.
(B) World Omni and the Requesting Party will have the right to seek provisional relief from a competent court of law, including a temporary restraining order, preliminary injunction or attachment order, if such relief is available by law.
(C) Under no circumstances will the Owner Trustee or the Indenture Trustee, respectively, in its individual capacity be liable for any costs, expenses or liabilities that could be allocated to the Requesting Party in any mediation or arbitration.
(v) World Omni will not be required to produce personally identifiable customer information for purposes of any mediation or arbitration. The existence and details of any unresolved Repurchase Request, any informal meetings, mediations or arbitration proceedings, the nature and amount of any relief sought or granted, any offers or statements made and any discovery taken in the proceeding will be confidential, privileged and inadmissible for any purpose in any other mediation, arbitration, litigation or other proceeding. The parties will keep this information confidential and will not disclose or discuss it with any third party (other than a party’s attorneys, experts, accountants and other advisors, as reasonably required in connection with the mediation or arbitration proceeding under this Section 3.02(c)), except as required by law, regulatory requirement or court order. If a party to a mediation or arbitration proceeding receives a subpoena or other request for information from a third party (other than a governmental regulatory body) for confidential information of the other party to the mediation or arbitration proceeding, the recipient will promptly notify the other party and will provide the other party with the opportunity to object to the production of its confidential information.
Section 3.03 Custody of Receivable Files. To assure uniform quality in servicing the Receivables and to reduce administrative costs, the Issuing Entity hereby revocably appoints the Servicer, and the Servicer hereby accepts such appointment, to act for the benefit of the Issuing Entity and the Indenture Trustee as custodian of the following documents or instruments which are hereby or will hereby be constructively delivered to the Indenture Trustee, as pledgee of the Issuing Entity, as of the Closing Date with respect to each Receivable:
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(a) in the case of each Receivable constituting “tangible chattel paper”, the fully executed original Contract of such Receivable or, in the case of each Receivable constituting “electronic chattel paper”, the “authoritative copy” (as such term is used in Section 9-105 of the UCC) of the electronic Contract of such Receivable;
(b) the credit application fully executed by the Obligor or such other information as the Servicer may keep on file in accordance with its customary servicing procedures;
(c) the original certificate of title or such documents that the Servicer or the Depositor shall keep on file, in accordance with its customary procedures, evidencing the security interest of World Omni in the Financed Vehicle; and
(d) any and all other documents that the Servicer or the Depositor shall keep on file, in accordance with its customary procedures, relating to a Receivable, an Obligor or a Financed Vehicle;
provided, that the Servicer may appoint one or more agents to act as subcustodians of certain items in the Receivables Files so long as the Servicer remains primarily responsible for their safekeeping, provided, further, that the Servicer shall not transmit or transfer the authoritative copy of a Receivable that is in the form of electronic chattel paper to another person.
Section 3.04 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer shall hold the Receivable Files as custodian for the benefit of the Issuing Entity and maintain such accurate and complete accounts, records and computer systems pertaining to each Receivable File as shall enable the Issuing Entity to comply with this Agreement. In performing its duties as custodian the Servicer shall act with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to the receivable files relating to all comparable automotive receivables that the Servicer services for itself. The Servicer covenants and agrees that it shall hold the Receivable Files in such a manner as to prevent any other Person from obtaining “control” of any “electronic chattel paper” included therein (as such terms are used in section 9-105 of the UCC). The Servicer shall promptly report to the Issuing Entity and the Indenture Trustee any failure on its part to hold the Receivable Files and maintain its accounts, records and computer systems as herein provided and shall promptly take appropriate action to remedy any such failure. Nothing herein shall be deemed to require an initial review or any periodic review by the Issuing Entity or the Indenture Trustee of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall maintain each Receivable File at one of its offices, or at such other location, in each case as specified in Schedule B or at such other office or location of the Servicer or a third party agent retained by the Servicer as shall be specified to the Issuing Entity and the Indenture Trustee by written notice prior to any change in location together with the Opinion of Counsel required by Section 10.02(j).
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The Servicer shall provide to the Indenture Trustee and, following the receipt of a Review Notice, the Asset Representation Reviewer, access to any and all documentation regarding the Receivables in such cases where the Indenture Trustee is required in connection with the enforcement of the rights of the Noteholders, or by applicable statutes or regulations to review such documentation or the Asset Representations Reviewer is obligated to conduct a Review, as applicable, 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 3.04(b) shall derogate from the obligation of the Servicer, the Indenture Trustee or the Asset Representation Reviewer to observe any applicable law prohibiting disclosure of information regarding the Obligors and the failure of the Servicer to provide access as provided in this Section 3.04(b) as a result of such obligation shall not constitute a breach of this Section 3.04(b).
(c) Release of Documents. Upon instruction from the Indenture Trustee, the Servicer shall release any Receivable File to the Indenture Trustee, the Indenture Trustee’s agent or the Indenture Trustee’s designee, as the case may be, at such place or places as the Indenture Trustee may designate, as soon as practicable.
Section 3.05 Instructions; Authority To Act. The Servicer shall be deemed to have received proper instructions with respect to the Receivable Files upon its receipt of written instructions signed by a Trust Officer of the Indenture Trustee.
Section 3.06 Custodian’s Indemnification. The Servicer as custodian shall indemnify the Trust, the Owner Trustee, and the Indenture Trustee and each of their respective officers, directors, employees and agents for any and all liabilities, obligations, losses, compensatory damages, payments, costs or expenses of any kind whatsoever that may be imposed on, incurred by or asserted against the Trust, the Owner Trustee, or the Indenture Trustee or any of their respective officers, directors, employees and agents as the result of any improper act or omission in any way relating to the maintenance and custody by the Servicer as custodian of the Receivable Files, including, but not limited to, the cost of defending any claim or bringing any claim to enforce such indemnification or other obligations of the Servicer; provided, however, that the Servicer shall not be liable to the Owner Trustee for any portion of any such amount resulting from the willful misfeasance, bad faith or negligence of the Owner Trustee, and the Servicer shall not be liable to the Indenture Trustee for any portion of any such amount resulting from the willful misfeasance, bad faith or negligence of the Indenture Trustee.
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Section 3.07 Effective Period and Termination. The Servicer’s appointment as custodian shall become effective as of the Cutoff Date and shall continue in full force and effect until terminated pursuant to this Section. If World Omni shall resign as Servicer in accordance with the provisions of this Agreement or if all of the rights and obligations of any Servicer shall have been terminated under Section 8.01, the appointment of such Servicer as custodian may be terminated by the Indenture Trustee or by the Holders of the Controlling Securities evidencing not less than 25% of the Outstanding Amount of the Controlling Securities or, with the consent of Holders of the Controlling Securities evidencing not less than 25% of the Outstanding Amount of the Controlling Securities, by the Owner Trustee, in the same manner as the Indenture Trustee or such Holders may terminate the rights and obligations of the Servicer under Section 8.01. As soon as practicable after any termination of such appointment, the Servicer shall deliver the Receivable Files to the Indenture Trustee or the Indenture Trustee’s agent at such place or places as the Indenture Trustee may reasonably designate; provided, however, that with respect to “authoritative copies” of the Receivables constituting “electronic chattel paper,” (a) if the Servicer’s appointment as custodian has been terminated in connection with the resignation or termination of the Servicer as servicer, the custodian shall transfer such “authoritative copies” to the successor Servicer or (b) otherwise, unless otherwise instructed by the Indenture Trustee, such “authoritative copies” shall be transferred to the Indenture Trustee or the Indenture Trustee’s designee. In each case, if necessary, an authorized representative of World Omni shall use commercially reasonable efforts to convert an authoritative copy into tangible form by permanently removing such electronic authoritative copy from World Omni’s electronic vaulting system and causing a contract in tangible form to be printed as the tangible authoritative copy that constitutes original tangible chattel paper for purposes of the UCC, and shall deliver such tangible authoritative copy to the successor Servicer or to the Indenture Trustee or the Indenture Trustee’s designee at the place or places as the Indenture Trustee may reasonably designate.
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.01 Duties of Servicer. The Servicer, for the benefit of the Issuing Entity (to the extent provided herein), shall manage, service, administer and receive collections on the Receivables (other than Purchased Receivables) with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable automotive receivables that it services for itself or others. The Servicer’s duties shall include collection and posting of all payments, responding to inquiries of Obligors on such Receivables, investigating delinquencies, sending invoices to Obligors, reporting tax information to Obligors, accounting for collections, paying the fee of the Administrator out of its own funds pursuant to Section 1.03 of the Administration Agreement and furnishing a Servicer’s Certificate to the Indenture Trustee. Subject to the provisions of Section 4.02, the Servicer shall follow its customary standards, policies and procedures in performing its duties as Servicer. Without limiting the generality of the foregoing, the Servicer is authorized and empowered to execute and deliver, on behalf of itself, the Issuing Entity, the Owner Trustee, the Indenture Trustee, the Certificateholders and the Noteholders or any of them, any and all instruments of satisfaction or cancellation, or partial or full release or discharge, and all other comparable instruments, with respect to such Receivables or to the Financed Vehicles securing such Receivables. If the Servicer shall commence a legal proceeding to enforce a Receivable, the Issuing Entity (in the case of a Receivable other than a Purchased Receivable) shall thereupon be deemed to have automatically assigned, solely for the purpose of collection, such Receivable to the Servicer. If in any enforcement suit or legal proceeding it shall be held that the Servicer may not enforce a Receivable on the ground that it shall not be a real party in interest or a holder entitled to enforce such Receivable, the Owner Trustee shall, at the Servicer’s expense and direction, take steps to enforce such Receivable, including bringing suit in its name or the name of the Owner Trustee, the Indenture Trustee, the Certificateholders or the Noteholders. The Owner Trustee shall upon the written request of the Servicer furnish the Servicer with any powers of attorney and other documents, in forms provided to it, reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder.
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Section 4.02 Collection and Allocation of Receivable Payments. The Servicer shall make reasonable efforts to collect all payments called for under the terms and provisions of the Receivables as and when the same shall become due and shall follow such collection procedures as it follows with respect to all comparable automotive receivables that it services for itself or others. The Servicer shall allocate collections as set forth in Section 5.03. The Servicer may grant extensions (although not more than six for the life of any Receivable (excluding the Servicer’s Payment Extension Program)), rebates or adjustments on a Receivable, which shall not, for the purposes of this Agreement, modify the day of the month on which payment is due (except in connection with a limited number of accommodations for Obligors of occasional requests in accordance with the Servicer’s customary servicing procedures) or change the method under which scheduled payments of interest are computed on such Receivable (other than with respect to the Servicer’s Payment Extension Program); provided, however, that if the Servicer extends the date for final payment by the Obligor of any Receivable beyond the Final Scheduled Maturity Date, it shall promptly repurchase the Receivable from the Issuing Entity in accordance with the terms of Section 4.07. The Servicer shall not retain any fees in connection with any extension of a Receivable but shall instead deposit such fees into the Collection Account within two Business Days of receipt (including receipt of proper instructions regarding where to allocate such payment). The Servicer may in its discretion waive any late payment charge or any other fees that may be collected in the ordinary course of servicing a Receivable. The Servicer shall not agree to any alteration of the interest rate or the originally scheduled payments on any Receivable, other than as provided herein or as required by law.
Section 4.03 Realization upon Receivables. On behalf of the Issuing Entity, the Servicer shall use commercially reasonable efforts, consistent with its customary servicing procedures, to repossess or otherwise convert the ownership of the Financed Vehicle securing any Receivable as to which the Servicer shall have determined eventual payment in full is unlikely. The Servicer shall follow such customary and usual practices and procedures as it shall deem necessary or advisable in its servicing of automotive receivables, which may include selling the Financed Vehicle at public or private sale. The Servicer is hereby authorized to exercise its discretion, consistent with its customary servicing procedures and the terms of this Agreement, in servicing Defaulted Receivables so as to maximize the realization of those Defaulted Receivables, including the discretion to choose to sell or not to sell any of the Defaulted Receivables. The Servicer shall not be liable for any such exercise of its discretion made in good faith.
Section 4.04 Physical Damage Insurance. To the extent applicable, the Servicer shall not take any action that would result in noncoverage under such physical damage insurance policy which, but for the actions of the Servicer, would have been covered thereunder. Any amounts collected by the Servicer under any physical damage insurance policy shall be deposited in the Collection Account pursuant to Section 5.02. The parties hereto acknowledge that the Servicer shall not force place any insurance coverage.
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Section 4.05 Maintenance of Security Interests in Financed Vehicles. The Servicer shall, in accordance with its customary servicing procedures, take such steps as are necessary to maintain perfection of the security interest created by each Receivable in the related Financed Vehicle. The Servicer is hereby authorized to take such steps as are necessary to re-perfect such security interest on behalf of the Issuing Entity and the Indenture Trustee in the event of the relocation of a Financed Vehicle or for any other reason.
Section 4.06 Covenants of Servicer. The Servicer shall not release the Financed Vehicle securing any Receivable from the security interest granted by such Receivable in whole or in part except in the event of (i) payment by the Obligor (a) in full or (b) in part with a remaining total payment shortage amount which, according to the Servicer’s customary procedures, does not exceed the amount of total payment shortage that would permit the Servicer to release the related Financed Vehicle from the security interest or (ii) repossession, nor shall the Servicer impair the rights of the Issuing Entity, the Indenture Trustee, the Certificateholders or the Noteholders in such Receivable.
Section 4.07 Purchase of Receivables upon Breach. The Servicer or the Trust shall inform the other party and the Indenture Trustee and the Depositor promptly, in writing, upon the discovery of any breach pursuant to Section 4.02, 4.05, 4.06 or 7.01. Unless the breach shall have been cured by the last day of the second Collection Period following such discovery or written notice (or, at the Servicer’s election, the last day of the first following Collection Period), the Servicer shall purchase any Receivable materially and adversely affected by such breach as of such last day and the Servicer shall deliver a revised Schedule of Receivables to the Depositor and the Trust, which shall reflect the repurchase of such Receivables. In consideration of the purchase of any such Receivable pursuant to the preceding sentence, the Servicer shall remit the Purchase Amount in the manner specified in Section 5.05. Subject to Section 7.02, the sole remedy of the Issuing Entity, the Owner Trustee, the Indenture Trustee, the Certificateholders or the Noteholders with respect to a breach pursuant to Section 4.02, 4.05, 4.06 or 7.01 shall be to require the Servicer to purchase Receivables pursuant to this Section. None of the Servicer, the Issuing Entity, the Owner Trustee, the Indenture Trustee, the Asset Representations Reviewer, the Seller, the Depositor or the Administrator will have an obligation to investigate whether a breach or other event has occurred that would require the purchase of any Receivable under this Section 4.07 or whether any Receivables is required to be purchased under this Section 4.07.
Section 4.08 Servicing Fee. The Servicing Fee for a Payment Date shall equal the product of (a) one-twelfth, (b) the Servicing Fee Rate and (c) the aggregate Principal Balance of the Receivables as of the first day of the related Collection Period; provided, however, that the Servicing Fee on the initial Payment Date shall be prorated to compensate for the length of the initial Collection Period being longer than one month and will be equal to $1,942,902.84. The Servicer shall also be entitled to all Supplemental Servicing Fees collected (from whatever source) on the Receivables, the amount of any Servicing Fee due but not distributed to the Servicer on a prior Payment Date (including any amounts previously deferred by the Servicer as provided in this Section 4.08) plus any reimbursement pursuant to the last paragraph of Section 7.02. The Servicer may, as long as it believes that sufficient collections will be available from interest collections on one or more future Payment Dates to pay the Servicing Fee, by notice to the Indenture Trustee on or before a Payment Date, elect to defer all or a portion of the Servicing Fee with respect to the related Collection Period, without interest. If the Servicer defers all of the Servicing Fee, the Servicing Fee for such related Collection Period will be deemed to equal zero.
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Section 4.09 Servicer’s Certificate. On or prior to the close of business on each Payment Determination Date, the Servicer shall deliver a Servicer’s Certificate pursuant to Section 5.08. Receivables to be purchased by the Servicer or to be repurchased by World Omni or the Depositor shall be identified by the Servicer by account number with respect to such Receivable (as specified in the Schedule of Receivables).
Section 4.10 Annual Statement as to Compliance; Item 1122 Servicing Criteria Assessment; Notice of Default.
(a) To the extent required by Regulation AB, the Servicer shall deliver (and shall cause each of its Reporting Subcontractors, if any, to deliver) to the Owner Trustee and the Indenture Trustee on or before the date that is 90 days after the end of each calendar year, commencing with the calendar year ended December 31, 2017, an Officer’s Certificate as required under Item 1123 of Regulation AB, dated as of December 31 of the preceding year, stating that (i) a review of the activities of the Servicer during the preceding calendar year (or such shorter period as shall have elapsed since the Closing Date) and of its performance under this Agreement has been made under such officer’s supervision and (ii) to the best of such officer’s knowledge, based on such review, the Servicer has fulfilled all its obligations under this Agreement in all material respects throughout such reporting period, or, if there has been a failure to fulfill any such obligation in any material respect, specifying each such failure known to such officer and the nature and status thereof. The Servicer shall send a copy of such certificate and the report referred to in Section 4.11 to the Rating Agencies. A copy of such certificate and the report referred to in Section 4.11 may be obtained by any Certificateholder or Noteholder by a request in writing to the Indenture Trustee addressed to the Corporate Trust Office. Upon the request of the Owner Trustee, the Indenture Trustee will promptly furnish the Owner Trustee a list of Noteholders as of the date specified by the Owner Trustee.
(b) The Servicer shall deliver to the Owner Trustee and the Indenture Trustee, on or before the date that is 90 days after the end of each calendar year, commencing with the calendar year ended December 31, 2017, a report, dated as of December 31 (or other applicable date) of the preceding year, regarding the Servicer’s assessment of compliance with the Servicing Criteria during the immediately preceding calendar year, including disclosure of any material instance of non-compliance identified by the Servicer, as described in Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB. Deliveries pursuant to this Section 4.10(b) may be delivered by electronic mail.
(c) The Servicer shall deliver to the Owner Trustee, the Indenture Trustee and the Rating Agencies, promptly after having obtained knowledge thereof, but in no event later than five (5) Business Days thereafter, unless such default shall have been cured prior to such date, written notice in an Officer’s Certificate of any event which with the giving of notice or lapse of time, or both, would become a Servicer Default under Section 8.01(a) or (b).
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Section 4.11 Annual Independent Certified Public Accountants’ Report. The Servicer shall cause a firm of independent certified public accountants, who may also render other services to the Servicer or to its Affiliates, to deliver to the Servicer (who shall promptly provide the assessment described in this Section 4.11(a) to the Rating Agencies), the Indenture Trustee and the Owner Trustee and, on or before the date that is 90 days after the end of the Servicer’s fiscal year, commencing with the fiscal year ended December 31, 2017, a report, dated as of December 31 of the preceding fiscal year, addressed to the board of directors of the Servicer, providing its assessment of compliance with the Servicing Criteria during the preceding fiscal year, including disclosure of any material instance of non-compliance, as described in Rule 13a-18 or Rule 15d-18 under the Exchange Act and Item 1122(b) of Regulation AB. Such attestation shall be in accordance with Rule 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the Exchange Act. Deliveries pursuant to this Section 4.11(a) may be delivered by electronic mail.
Section 4.12 Access to Certain Documentation and Information Regarding Receivables. The Servicer shall provide to the Certificateholders and Noteholders access to the Receivable Files in such cases where the Certificateholders or Noteholders shall be required by applicable statutes or regulations to review such documentation. Access shall be afforded without charge, but only upon reasonable request and during the normal business hours at the offices of the Servicer. Nothing in this Section shall affect the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Obligors and the failure of the Servicer to provide access to information as a result of such obligation shall not constitute a breach of this Section.
Section 4.13 Servicer Expenses. The Servicer shall be required to pay all expenses incurred by it in connection with its activities hereunder, including fees and disbursements of independent accountants, taxes imposed on the Servicer and expenses incurred in connection with distributions and reports to Certificateholders and Noteholders.
Section 4.14 Appointment of Subservicer. The Servicer may at any time appoint a subservicer to perform all or any portion of its obligations as Servicer hereunder; provided, however, that the Servicer shall remain obligated and be liable to the Issuing Entity, the Owner Trustee, the Indenture Trustee, the Certificateholders and the Noteholders for the servicing and administering of the Receivables in accordance with the provisions hereof without diminution of such obligation and liability by virtue of the appointment of such subservicer and to the same extent and under the same terms and conditions as if the Servicer alone were servicing and administering the Receivables. The fees and expenses of the subservicer shall be as agreed between the Servicer and its subservicer from time to time, and none of the Issuing Entity, the Owner Trustee, the Indenture Trustee, the Certificateholders or the Noteholders shall have any responsibility therefor. The Servicer shall give the Indenture Trustee written notice of any subservicer appointed hereunder,
Section 4.15 Communications Between Noteholders. The Servicer will comply with its obligations under Section 7.02(e) of the Indenture to include in the Form 10-D filed by the Issuing Entity with the Commission for the Collection Period the information described in such Section. The Servicer will bear any costs associated with including any such communication in such Form 10-D.
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Section 4.16 Exchange Act Certifications. To the extent permitted by Exchange Act Rules, the Servicer shall prepare, execute, file and deliver on behalf of the Issuing Entity any certification or other instrument as required by Exchange Act Rules 13a-14 and 15d-14.
ARTICLE V
TRUST ACCOUNTS; DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS AND NOTEHOLDERS
Section 5.01 Establishment of Trust Accounts.
(a) (i) The Servicer, for the benefit of the Noteholders and the Certificateholders, shall cause to be established and maintained with and in the name of the Indenture Trustee an Eligible Deposit Account (the “Collection Account”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders and the Certificateholders.
(ii) The Servicer, for the benefit of the Noteholders, shall cause to be established and maintained with and in the name of the Indenture Trustee an Eligible Deposit Account (the “Note Distribution Account”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders.
(iii) The Servicer, for the benefit of the Noteholders and the Certificateholders, shall cause to be established and maintained with and in the name of the Indenture Trustee an Eligible Deposit Account (the “Reserve Account”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders and the Certificateholders.
(b) Funds on deposit in the Collection Account, the Note Distribution Account and the Reserve Account (collectively the “Trust Accounts”) shall be invested by the Indenture Trustee in Eligible Investments selected by the Servicer. In absence of written direction from the Servicer, such funds shall be invested in Eligible Investments specified in clause (i) of the definition thereof. All such Eligible Investments shall be held by the Indenture Trustee for the benefit of the Noteholders and the Certificateholders, as applicable; provided, that on each Payment Determination Date all interest and other Investment Earnings on funds on deposit in the Trust Accounts shall be deposited into the Collection Account and shall be deemed to constitute a portion of Available Funds for the related Payment Date. Other than as permitted by the Rating Agencies, funds on deposit in the Collection Account, the Reserve Account and the Note Distribution Account shall be invested in Eligible Investments that will mature (A) not later than the Business Day immediately preceding the next Payment Date or (B) on or before 10:00 a.m. on such next Payment Date if such investment is held in the corporate trust department of the institution with which the Collection Account, the Reserve Account and the Note Distribution Account, as applicable, is then maintained and is invested either (i) in a time deposit of the Indenture Trustee rated at least A-1 by S&P Global Ratings and F1 by Fitch (such account being maintained within the corporate trust department of the Indenture Trustee), (ii) in the Indenture Trustee’s common trust fund so long as such fund is rated in the highest applicable rating category by S&P Global Ratings and Fitch or (iii) in Eligible Investments specified in clauses (g) or (i) of the definition thereof; and provided that Eligible Investments shall be available for redemption and use by the Indenture Trustee on the relevant Payment Date. In no event shall the Indenture Trustee be held liable for investment losses in Eligible Investments pursuant to this Section 5.01, except in its capacity as obligor thereunder. Except as otherwise provided hereunder or agreed in writing among the parties hereto, the Servicer shall retain the authority to institute, participate and join in any plan of reorganization, readjustment, merger or consolidation with respect to the issuer of any Eligible Investments held hereunder, and, in general, to exercise each and every other power or right with respect to each such asset or investment as individuals generally have and enjoy with respect to their own assets and investment, including power to vote upon any securities.
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(c) (i) The Indenture Trustee shall possess all right, title and interest in all funds on deposit from time to time in the Trust Accounts and in all proceeds thereof (including all income thereon) and all such funds, investments, proceeds and income shall be part of the Trust Estate. The Trust Accounts shall be under the sole dominion and control of the Indenture Trustee for the benefit of the Noteholders and the Certificateholders, as the case may be. If, at any time, any of the Trust Accounts ceases to be an Eligible Deposit Account, the Indenture Trustee (or the Servicer on its behalf) shall within 10 Business Days (or such longer period, not to exceed 30 calendar days, as to which each Rating Agency may consent) establish a new Trust Account as an Eligible Deposit Account and shall transfer any cash and/or any investments to such new Trust Account. The Indenture Trustee or the other Person holding the Trust Accounts as provided in this Section 5.01(c)(i) shall be the “Securities Intermediary.” If the Securities Intermediary shall be a Person other than the Indenture Trustee, the Servicer shall obtain the express agreement of such Person to the obligations of the Securities Intermediary set forth in this Section 5.01.
(ii) With respect to the Trust Account Property, the Securities Intermediary agrees, by its acceptance hereof, that:
(A) The Trust Accounts are accounts to which Financial Assets will be credited.
(B) All securities or other property underlying any Financial Assets credited to the Trust Accounts shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any Financial Asset credited to any of the Trust Accounts be registered in the name of the Trust, the Servicer or the Depositor, payable to the order of the Trust, the Servicer or the Depositor or specially indorsed to the Owner Trustee, the Servicer or the Depositor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank.
(C) All property delivered to the Securities Intermediary pursuant to this Agreement will be promptly credited to the appropriate Trust Account.
(D) Each item of property (whether investment property, Financial Asset, security, instrument or cash) credited to a Trust Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the New York UCC.
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(E) If at any time the Securities Intermediary shall receive any order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to the Trust Accounts, the Securities Intermediary shall comply with such entitlement order without further consent by the Trust, the Servicer, the Depositor or any other Person.
(F) The Trust Accounts shall be governed by the laws of the State of New York, regardless of any provision in any other agreement. For purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction and the Trust Accounts (as well as the securities entitlements (as defined in Section 8-102(a)(17) of the UCC) related thereto) shall be governed by the laws of the State of New York.
(G) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other person relating to the Trust Accounts and/or any Financial Assets credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other person and the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Trust, the Depositor, the Servicer or the Indenture Trustee purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.01(c)(ii)(E) hereof.
(H) Except for the claims and interest of the Indenture Trustee and of the Trust in the Trust Accounts, the Securities Intermediary knows of no claim to, or interest in, the Trust Accounts or in any Financial Asset credited thereto. If any other person asserts any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Trust Accounts or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Indenture Trustee, the Servicer and the Trust thereof.
(I) The Securities Intermediary will promptly send copies of all statements, confirmations and other correspondence concerning the Trust Accounts and/or any Trust Account Property simultaneously to each of the Servicer and the Indenture Trustee.
(iii) The Servicer shall have the power, revocable by the Indenture Trustee or by the Owner Trustee with the consent of the Indenture Trustee, to instruct the Indenture Trustee to make withdrawals and payments from the Trust Accounts for the purpose of permitting the Servicer or the Owner Trustee to carry out its respective duties hereunder or permitting the Indenture Trustee to carry out its duties under the Indenture.
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Section 5.02 Collections. The Servicer shall remit to the Collection Account (and post such amounts to its records) within two Business Days of receipt and identification of payment (including receipt of proper instructions regarding where to allocate such payment) all payments by or on behalf of the Obligors with respect to the Receivables (other than Purchased Receivables) and all Recoveries, both as collected during the Collection Period. Notwithstanding the foregoing, for so long as (i) World Omni remains the Servicer, (ii) no Servicer Default shall have occurred and be continuing and (iii) the Rating Agency Condition is met, the Servicer shall remit such collections with respect to the preceding calendar month to the Collection Account on the Payment Determination Date immediately preceding the related Payment Date. For purposes of this Article V the phrase “payments by or on behalf of Obligors” shall mean payments made with respect to the Receivables by Persons other than the Servicer or the Depositor.
Section 5.03 Application of Collections. With respect to each Receivable (other than a Purchased Receivable), payments by or on behalf of the Obligor shall be applied to interest and principal in accordance with the Simple Interest Method.
Section 5.04 [Reserved].
Section 5.05 Additional Deposits. The Servicer and the Depositor shall deposit or cause to be deposited in the Collection Account the aggregate Purchase Amount with respect to Purchased Receivables and the Servicer shall deposit therein all amounts to be paid under Section 9.01. The Servicer will deposit the aggregate Purchase Amount with respect to Purchased Receivables when such obligations are due. All such deposits shall be made on the Payment Determination Date for the related Collection Period.
Section 5.06 Distributions.
(i) On or prior to the close of business on each Payment Determination Date, the Servicer shall calculate (A) all amounts required to be deposited in the Note Distribution Account, and (B) all amounts required to be distributed to the Certificateholders.
(ii) Except as otherwise provided in clause (iii) below, on each Payment Date, the Servicer shall instruct the Indenture Trustee (based on the information contained in the Servicer’s Certificate delivered on the related Payment Determination Date pursuant to Section 4.09) to make the following deposits and distributions in the following order of priority, in each case, to the extent of Available Funds, if any, remaining after application thereof pursuant to prior clauses:
(A) to the Asset Representations Reviewer, all fees, expenses and indemnities due to the Asset Representations Reviewer under the Asset Representations Review Agreement and not previously paid by the Servicer, up to a maximum of $150,000 per year;
(B) to the Note Distribution Account, the Class A Noteholders’ Interest Distributable Amount;
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(C) to the Note Distribution Account, the Noteholders’ First Priority Principal Distributable Amount;
(D) to the Note Distribution Account, the Class B Noteholders’ Interest Distributable Amount;
(E) to the Note Distribution Account, the Noteholders’ Second Priority Principal Distributable Amount;
(F) to the Reserve Account, the amount necessary to reinstate the balance in the Reserve Account up to the Required Reserve Amount;
(G) to the Note Distribution Account, an amount equal to the Noteholders’ Principal Distributable Amount minus any amounts allocated to the Note Distribution Account pursuant to clauses (C) and (E) above;
(H) to the Asset Representations Reviewer, all fees, expenses and indemnities due to the Asset Representations Reviewer under the Asset Representations Review Agreement but not paid pursuant to clause (A) above; and
(I) to the Certificateholders, any remaining amounts; provided the Indenture Trustee has not received written instruction from the Certificateholders of 100% percentage interest in the Certificates to redeposit all or a portion of such Available Funds due such Certificateholders into the Collection Account.
The Holders of 100% Percentage Interest of the Certificates will have the right, but not the obligation, in their sole discretion, to instruct the Indenture Trustee in writing on or prior to the close of business on the related Payment Determination Date to retain in the Collection Account all or a portion of distributions otherwise payable to them pursuant to clause (I) above. If the Certificateholders make this election, these amounts will be treated as collections during the then current Collection Period and the Certificateholders will have no claim to such amounts (unless distributed on a subsequent Payment Date pursuant to clause (I) above).
(iii) In the event Notes are declared to be due and payable following the occurrence of an Event of Default under the Indenture, Available Funds will be distributed in the following order or priority:
(A) to the Owner Trustee, the Indenture Trustee and the Asset Representations Reviewer, all fees, expenses and indemnities due to each such party in accordance with the terms of the Basic Documents and not previously paid by the Servicer or the Administrator, as applicable, on a pro rata basis based on amounts due and payable to each party;
(B) to the Holders of the Class A Notes, the aggregate accrued and unpaid interest on each Class of the Class A Notes;
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(C) if the Notes have been declared to be due and payable as a result of occurrence of an Event of Default under Section 5.01(a)(i) or (ii) of the Indenture, to the Holders of the Class A-1 Notes, the aggregate Outstanding Amount of such Notes, and then to the Holders of the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, pro rata, the aggregate Outstanding Amount of such Notes;
(D) to the Holders of the Class B Notes, the accrued and unpaid interest on the Class B Notes;
(E) if the Notes have been declared to be due and payable as a result of occurrence of an Event of Default under the Indenture other than as a result of default in payment of any interest on or principal of any Note in accordance with the Indenture, to the Holders of the Class A-1 Notes, the aggregate Outstanding Amount of such Notes, and then to the Holders of the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, pro rata, the aggregate Outstanding Amount of such Notes;
(F) to the Holders of the Class B Notes, the Outstanding Amount of the Class B Notes; and
(G) to the Certificateholders, any remaining amounts.
Section 5.07 Reserve Account.
(a) On the Closing Date, the Indenture Trustee will deposit, on behalf of the Depositor, the Reserve Account Initial Deposit into the Reserve Account.
(b) If the amount on deposit in the Reserve Account on any Payment Date (after giving effect to all deposits thereto or withdrawals therefrom on such Payment Date) is greater than the Required Reserve Amount for such Payment Date, the Servicer shall instruct the Indenture Trustee to withdraw such amount from the Reserve Account and apply it as Available Funds for such Payment Date.
(c) In the event that the Total Available Funds for a Payment Date are not sufficient to make the full amount of the payments and deposits required pursuant to Sections 5.06(ii)(A), (B), (C), (D) and (E) on such Payment Date, the Servicer shall instruct the Indenture Trustee to withdraw from the Reserve Account on such Payment Date an amount equal to such shortfall, to the extent of funds available therein, and pay or deposit such amount according to the priorities set forth in Section 5.06(ii). In addition, amounts will be withdrawn from the Reserve Account as provided in Section 8.02(c) and (d) of the Indenture.
(d) Subject to Section 9.01, amounts will continue to be applied pursuant to Section 5.06 following payment in full of the Outstanding Amount of the Notes until the Pool Balance is reduced to zero. Following the payment in full of the aggregate Outstanding Amount of the Notes and of all other amounts owing or to be distributed hereunder or under the Indenture or the Trust Agreement to Noteholders, any amount remaining on deposit in the Reserve Account shall be distributed to the Certificateholders.
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Section 5.08 Statements to Noteholders and Certificateholders. On or prior to the close of business on each Payment Determination Date, the Servicer shall provide to the Indenture Trustee (with a copy to the Rating Agencies) for the Indenture Trustee to post on its internet website pursuant to Section 6.06 of the Indenture, a statement substantially in the form of Exhibit B, setting forth at least the following information as to the Notes, to the extent applicable:
(a) the amount of such distribution allocable to principal allocable to each Class of Notes;
(b) the amount of such distribution allocable to interest allocable to each Class of Notes;
(c) the Outstanding Amount of each Class of Notes and the Note Pool Factor for each such Class as of the close of business on the last day of the preceding Collection Period;
(d) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period, the amount of any unpaid Servicing Fee and the change in such amount from the prior Payment Date;
(e) the balance of the Reserve Account on such Payment Determination Date before and after giving effect to deposits and withdrawals to be made on the immediate following Payment Date, if any;
(f) the amount, if any, distributed to Noteholders and Certificateholders from amounts on deposit in the Reserve Account or from other forms of credit enhancement;
(g) the Pool Balance as of the close of business on the last day of the related Collection Period, before and after giving effect to payments allocated to principal reported under clause (a) above;
(h) the Class A Noteholders’ Interest Carryover Shortfall;
(i) the Class B Noteholders’ Interest Carryover Shortfall;
(j) the number of Receivables purchased by, and the aggregate Purchase Amount paid by, World Omni or the Servicer with respect to the related Collection Period;
(k) delinquency information relating to the Receivables which has a payment of more than $40 that is more than 30, 60, 90 or 120 days delinquent;
(l) the aggregate amount of Receivables which have become Defaulted Receivables during the preceding Collection Period;
(m) the amount, if any, distributed to the Certificateholders;
(n) the Noteholders’ First Priority Principal Distributable Amount;
(o) the Noteholders’ Second Priority Principal Distributable Amount;
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(p) the Noteholders’ Principal Distributable Amount;
(q) the Overcollateralization Target Amount for the immediately following Payment Date;
(r) the number and dollar amount of Receivables at the beginning and end of the applicable Collection Period, and the weighted average coupon and weighted average remaining term of the Receivables held by the Trust;
(s) delinquency and loss information for the applicable Collection Period and any material changes in determining or defining delinquencies, charge-offs and uncollectible accounts;
(t) material breaches of pool asset representations and warranties or transaction covenants;
(u) any material modifications, extensions or waivers relating to the terms of or fees, penalties or payments on, pool assets during the distribution period or that, cumulatively, have become material over time;
(v) the Yield Supplement Overcollateralization Amount for the related Payment Date;
(w) a material change in World Omni or the Depositor’s retained interest in the Notes or Certificates; and
(x) the Interest Rate for each Class of Notes for the next Payment Date, including One-Month LIBOR.
Each amount set forth on the Payment Date statement under clauses (a), (b), (h) and (i) above shall be expressed as a dollar amount per $1,000 of original principal amount of a Note. Deliveries pursuant to this Section 5.08 may be delivered by electronic mail.
Section 5.09 Net Deposits. As an administrative convenience, the Servicer will be permitted to make the deposit of collections on the Receivables and Purchase Amounts for or with respect to the Collection Period net of distributions (including without limitation the Servicing Fee) to be made to the Servicer with respect to the Collection Period. The Servicer, however, will account to the Owner Trustee, the Indenture Trustee, the Noteholders and the Certificateholders as if all deposits, distributions and transfers were made individually.
Section 5.10 Transfer of Certificates. In the event any Certificateholder shall wish to transfer such Certificate, the Depositor shall provide to such Certificateholder and any prospective transferee designated by such Certificateholder information regarding the Certificates and the Receivables and such other information as shall be necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate without registration thereof under the Securities Act, pursuant to the exemption from registration provided by Rule 144A.
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ARTICLE VI
THE DEPOSITOR
Section 6.01 Representations of Depositor. The Depositor makes the following representations on which the Issuing Entity is deemed to have relied in acquiring the Receivables. The representations speak as of the Closing Date, and shall survive the sale of the Receivables to the Issuing Entity and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. The Depositor is duly organized and validly existing as a limited liability company in good standing under the laws of the State of Delaware, with the requisite power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and has, the requisite power, authority and legal right to acquire and own the Receivables.
(b) Due Qualification. The Depositor is duly qualified to do business as a foreign limited liability company in good standing, and has obtained all necessary material licenses and approvals, in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications, except where the failure to be so qualified or to have obtained such licenses or approvals would not have a material adverse effect on the Depositor’s earnings, business affairs or business prospects.
(c) Power and Authority. The Depositor has the requisite power and authority to execute and deliver this Agreement and to carry out its terms; the Depositor has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Issuing Entity, and the Depositor shall have duly authorized such sale and assignment to the Issuing Entity by all necessary action; and the execution, delivery and performance of this Agreement has been duly authorized by the Depositor by all necessary action.
(d) Binding Obligation. This Agreement constitutes a legal, valid and binding obligation of the Depositor enforceable against the Depositor 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).
(e) No Violation. The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof do not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the limited liability company agreement or bylaws of the Depositor; (ii) breach, conflict with or violate any of the material terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, agreement or other instrument to which the Depositor is a party or by which it is bound; (iii) result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to this Agreement and the Basic Documents); or, (iv) to the best of the Depositor’s knowledge, violate any order, rule or regulation applicable to the Depositor of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Depositor or its properties except, in the case of clauses (ii), (iii) and (iv), for such breaches, defaults, conflicts, liens or violations that would not have a material adverse effect on the Depositor’s earnings, business affairs or business prospects.
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(f) No Proceedings. To the Depositor’s best knowledge, there are no proceedings or investigations pending or threatened before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Depositor or its properties: (i) asserting the invalidity of this Agreement, the Indenture or any of the other Basic Documents, the Notes or the Certificates, (ii) seeking to prevent the issuance of the Notes or the Certificates or the consummation of any of the transactions contemplated by this Agreement, the Indenture or any of the other Basic Documents, (iii) seeking any determination or ruling that could reasonably be expected to materially and adversely affect the performance by the Depositor of its obligations under, or the validity or enforceability of, this Agreement, the Indenture, any of the other Basic Documents, the Notes or the Certificates or (iv) which could reasonably be expected to adversely affect the federal or state income tax attributes of the Notes or the Certificates.
(g) All Consents. All authorizations, licenses, consents, orders or approvals of, or registrations or declarations with, any court, regulatory body, administrative agency or other government instrumentality required to be obtained, effected or given by the Depositor in connection with the execution and delivery by the Depositor of this Agreement or any of the Basic Documents to which it is a party and the performance by the Depositor of the transactions contemplated by this Agreement or any of the Basic Documents to which it is a party, have been duly obtained, effected or given and are in full force and effect, except where failure to obtain the same would not have a material adverse effect upon the rights of the Trust, the Noteholders or the Certificateholders.
Section 6.02 Limited Liability Company Existence.
(a) During the term of this Agreement, the Depositor will keep in full force and effect its existence, rights and franchises as a limited liability company under the laws of the jurisdiction of its formation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement, the Basic Documents and each other instrument or agreement necessary or appropriate to the proper administration of this Agreement and the transactions contemplated hereby. In addition, all transactions and dealings between the Depositor and its Affiliates will be conducted on an arm’s-length basis.
(b) During the term of this Agreement, the Depositor shall observe the applicable legal requirements for the recognition of the Depositor as a legal entity separate and apart from its affiliates, including the following:
(i) the Depositor shall maintain limited liability company records and books of account separate from those of its affiliates;
(ii) except as otherwise provided in this Agreement, the Depositor shall not commingle its assets and funds with those of its affiliates;
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(iii) the Depositor shall hold such appropriate meetings of its Board of Directors as are necessary to authorize all the Depositor’s limited liability company actions required by law to be authorized by the Board of Directors, shall keep minutes of such meetings and observe all other customary limited liability company formalities (and any successor Depositor not a limited liability company shall observe similar procedures in accordance with its governing documents and applicable law); and
(iv) the Depositor shall at all times hold itself out to the public under the Depositor’s own name as a legal entity separate and distinct from its affiliates.
Section 6.03 Liability of Depositor; Indemnities. The Depositor shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Depositor under this Agreement:
(a) The Depositor shall indemnify, defend and hold harmless the Issuing Entity, the Owner Trustee, the Indenture Trustee and the Servicer and any of the officers, directors, employees and agents of the Issuing Entity, the Owner Trustee and the Indenture Trustee from and against any taxes that may at any time be asserted against any such Person with respect to the transactions contemplated herein and in the Basic Documents, including any sales, gross receipts, general corporation, tangible personal property, privilege or license taxes (but, in the case of the Issuing Entity, not including any taxes asserted with respect to, and as of the date of, the sale of the Receivables to the Issuing Entity or the issuance and original sale of the Certificates and the Notes, or asserted with respect to ownership of the Receivables, or federal or other income taxes arising out of distributions on the Certificates or the Notes) and costs and expenses in defending against the same.
(b) The Depositor shall indemnify, defend and hold harmless the Issuing Entity, the Owner Trustee, the Indenture Trustee, the Certificateholders and the Noteholders and any of the officers, directors, employees and agents of the Issuing Entity, the Owner Trustee and the Indenture Trustee from and against any loss, liability or reasonable and documented expense incurred by reason of the Depositor’s willful misfeasance, bad faith or negligence (except for errors in judgment) in the performance of its duties under this Agreement, or by reason of reckless disregard of its obligations and duties under this Agreement.
(c) The Depositor shall indemnify, defend and hold harmless the Owner Trustee and the Indenture Trustee and their respective officers, directors, employees and agents from and against all reasonable and documented cost and expense, and all other losses, claims, damages and liabilities arising out of or incurred in connection with the acceptance or performance of the trusts and duties herein and in the Trust Agreement, in the case of the Owner Trustee, and in the Indenture, in the case of the Indenture Trustee, except to the extent that such cost, expense, loss, claim, damage or liability: (i) in the case of the Owner Trustee, shall be due to the willful misfeasance, bad faith or negligence (except for errors in judgment) of the Owner Trustee or, in the case of the Indenture Trustee, shall be due to the willful misfeasance, bad faith or negligence (except for errors in judgment) of the Indenture Trustee or (ii) in the case of the Owner Trustee, shall arise from the breach by the Owner Trustee of any of its representations or warranties set forth in Section 7.03 of the Trust Agreement.
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(d) The Depositor shall pay any and all taxes levied or assessed upon all or any part of the Owner Trust Estate.
Indemnification under this Section shall survive the resignation or removal of the Owner Trustee or the Indenture Trustee and the termination or assignment of this Agreement and the Trust Agreement and shall include reasonable and documented fees and expenses of counsel and expenses of litigation (including without limitation, any legal fees, costs and expenses incurred in connection with any enforcement (including any action, claim, or suit brought) by an indemnified party of any indemnification or other obligation of the Depositor). If the Depositor shall have made any indemnity payments pursuant to this Section and the Person to or on behalf of whom such payments are made thereafter shall collect any of such amounts from others, such Person shall promptly repay such amounts to the Depositor, without interest.
Notwithstanding anything to the contrary contained in this Agreement or any other document, the obligations of the Depositor under this Section 6.03 and Section 7.5 of the Depositor’s Limited Liability Company Agreement are solely the company obligations of the Depositor and shall be payable by it (x) solely from funds distributed to it in its capacity as Certificateholder available pursuant to, and in accordance with, the payment priorities set forth in Section 5.06 of this Agreement and (z) only to the extent that it receives additional funds designated for such purposes or to the extent it has additional funds available (other than funds described in preceding clause (x)). In addition, no amount owing by the Depositor hereunder or under Section 7.5 of its Limited Liability Company Agreement in excess of the liabilities that it is required to pay in accordance with the preceding sentence shall constitute a “claim” (as defined in Section 101(5) of the Bankruptcy Code) against it. No recourse shall be had for the payment of any amount owing hereunder or under Section 7.5 of the Depositor’s Limited Liability Company Agreement or any other obligation of, or claim against, the Depositor, arising out of or based upon this Section 6.03 or under Section 7.5 of its Limited Liability Company Agreement against any employee, officer, agent, directed or authorized person of the Depositor; provided, however, that the foregoing shall not relieve any such person or entity of any liability they might otherwise have as a result of fraudulent actions or omissions taken by them.
Section 6.04 Merger or Consolidation of, or Assumption of Obligations of Depositor. Any Person (a) into which the Depositor may be merged or consolidated, (b) which may result from any merger or consolidation to which the Depositor shall be a party or (c) which may succeed to the properties and assets of the Depositor substantially as a whole, which person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Depositor under this Agreement, shall be the successor to the Depositor hereunder without the execution or filing of any document or any further act by any of the parties to this Agreement; provided, however, that (i) immediately after giving effect to such transaction, no representation or warranty made pursuant to Section 3.01(a) or (b) shall have been breached and no Servicer Default in respect of the Depositor under Section 8.01(b) or (c) shall have occurred and be continuing, and no event that, after notice or lapse of time, or both, would become a Servicer Default in respect of the Depositor under Section 8.01(b) or (c) shall have occurred and be continuing, (ii) the Depositor shall have delivered to the Owner Trustee and the Indenture Trustee an Officers’ Certificate stating that such consolidation, merger or succession and such agreement of assumption comply with this Section and that all conditions precedent, if any, provided for in this Agreement relating to such transaction have been complied with, (iii) the Rating Agency Condition shall have been satisfied with respect to such transaction and (iv) the Depositor shall have delivered to the Owner Trustee and the Indenture Trustee an Opinion of Counsel either (A) stating that, in the opinion of such counsel, all financing statements and continuation statements and amendments thereto have been filed that are necessary fully to preserve and protect the interest of the Owner Trustee and Indenture Trustee, respectively, in the Receivables and reciting the details of such filings, or (B) stating that, in the opinion of such counsel, no such action shall be necessary to preserve and protect such interests. Notwithstanding anything herein to the contrary, (a) the execution of the foregoing agreement of assumption and compliance with clauses (i), (ii), (iii) and (iv) above shall be conditions to the consummation of the transactions referred to in clause (a), (b) or (c) above and (b) the Depositor may transfer its rights under this Agreement in accordance with Section 4.15 hereof.
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Section 6.05 Limitation on Liability of Depositor and Others. The Depositor and any director, officer, employee or agent of the Depositor may rely in good faith on the advice of counsel or on any document of any kind, prima facie properly executed and submitted by any Person respecting any matters arising hereunder. The Depositor shall not be under any obligation to appear in, prosecute or defend any legal action that shall not be incidental to its obligations under this Agreement, and that in its opinion may involve it in any expense or liability.
Section 6.06 Depositor May Own Notes. The Depositor and any Affiliate thereof may in its individual or any other capacity become the owner or pledgee of Notes with the same rights as it would have if it were not the Depositor or an Affiliate thereof, except as expressly provided herein or in any Basic Document.
Section 6.07 Security Interest. During the term of this Agreement, the Depositor will not take any action to assign the security interest in any Financed Vehicle other than pursuant to the Basic Documents.
ARTICLE VII
THE SERVICER
Section 7.01 Representations of Servicer. The Servicer makes the following representations on which the Issuing Entity is deemed to have relied in acquiring the Receivables. The representations speak as of the Closing Date, and shall survive the sale of the Receivables from time to time to the Issuing Entity and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. The Servicer is duly organized and validly existing as a corporation in good standing under the laws of the state of its incorporation, with the corporate power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and has, the corporate power, authority and legal right to acquire, own, sell and service the Receivables and to hold the Receivable Files as custodian.
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(b) Due Qualification. The Servicer is duly qualified to do business as a foreign corporation in good standing, and has obtained all necessary material licenses and approvals, in all jurisdictions in which the ownership or lease of property or the conduct of its business (including the servicing of the Receivables as required by this Agreement) shall require such qualifications, except where the failure to be so qualified or to have obtained such licenses or approvals would not have a material adverse effect on the Servicer’s earnings, business affairs or business prospects.
(c) Power and Authority. The Servicer has the corporate power and authority to execute and deliver this Agreement and to carry out its terms; and the execution, delivery and performance of this Agreement have been duly authorized by the Servicer by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a legal, valid and binding obligation of the Servicer enforceable against the Servicer 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).
(e) No Violation. The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof do not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the articles of incorporation or bylaws of the Servicer; (ii) breach, conflict with or violate any of the material terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, agreement or other instrument to which the Servicer is a party or by which it is bound; (iii) result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to this Agreement and the Basic Documents); or, (iv) to the best of the Servicer’s knowledge, violate any order, rule or regulation applicable to the Servicer of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Servicer or its properties except, in the case of clauses (ii), (iii) and (iv), for such breaches, defaults, conflicts, liens or violations that would not have a material adverse effect on the Servicer’s earnings, business affairs or business prospects.
(f) No Proceedings. To the Servicer’s best knowledge, there are no proceedings or investigations pending or threatened before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Servicer or its properties: (i) asserting the invalidity of this Agreement, the Indenture, any of the other Basic Documents, the Notes or the Certificates, (ii) seeking to prevent the issuance of the Notes or the Certificates or the consummation of any of the transactions contemplated by this Agreement, the Indenture or any of the other Basic Documents, (iii) seeking any determination or ruling that could reasonably be expected to materially and adversely affect the performance by the Servicer of its obligations under, or the validity or enforceability of, this Agreement, the Indenture, any of the other Basic Documents, the Notes or the Certificates or (iv) relating to the Servicer and which could reasonably be expected to adversely affect the federal or state income tax attributes of the Notes or the Certificates.
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(g) Approvals. All approvals, licenses, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official, required in connection with the execution and delivery of this Agreement have been or will be taken or obtained on or prior to the Closing Date, except where failure to obtain the same would not have a material adverse effect upon the rights of the Depositor, the Trust, the Noteholders or the Certificateholders.
Section 7.02 Indemnities of Servicer. The Servicer shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Servicer under this Agreement:
(a) The Servicer shall indemnify, defend and hold harmless the Issuing Entity, the Owner Trustee, the Indenture Trustee, the Noteholders, the Certificateholders and the Depositor and any of the officers, directors, employees and agents of the Issuing Entity, the Owner Trustee and the Indenture Trustee from and against any and all reasonable and documented costs and expenses, and all other losses, damages, claims and liabilities arising out of or resulting from the use, ownership or operation by the Servicer or any Affiliate thereof of a Financed Vehicle.
(b) The Servicer shall indemnify, defend and hold harmless the Issuing Entity, the Owner Trustee, the Indenture Trustee, the Depositor, the Certificateholders and the Noteholders and any of the officers, directors, employees and agents of the Issuing Entity, the Owner Trustee and the Indenture Trustee from and against any and all costs, expenses, losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or was imposed upon any such Person through, the willful misfeasance, bad faith or negligence (except for errors in judgment) of the Servicer in the performance of its duties under this Agreement or by reason of reckless disregard of its obligations and duties under this Agreement.
For purposes of this Section, in the event of the termination of the rights and obligations of World Omni (or any successor thereto pursuant to Section 7.03) as Servicer pursuant to Section 8.01, or a resignation by such Servicer pursuant to this Agreement, such Servicer shall be deemed to be the Servicer pending appointment of a successor Servicer (other than the Indenture Trustee) pursuant to Section 8.02.
Indemnification under this Section shall survive the resignation or removal of the Owner Trustee or the Indenture Trustee or the termination or assignment of this Agreement and the Trust Agreement and shall include reasonable fees and expenses of counsel and expenses of litigation (including without limitation any legal fees, costs and expenses incurred in connection with any enforcement (including any action, claim, or suit brought) by an indemnified party of any indemnification or other obligation of the Servicer). If the Servicer shall have made any indemnity payments pursuant to this Section and the Person to or on behalf of whom such payments are made thereafter collects any of such amounts from others, such Person shall promptly repay such amounts to the Servicer, without interest.
Section 7.03 Merger or Consolidation of, or Assumption of Obligations of, 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:
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(a) the entity 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 an entity organized and existing under the laws of the United States of America or the District of Columbia and, if the Servicer is not the surviving entity, such entity shall assume, without the execution or filing of any paper or 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 and Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer will comply with this Section 7.03 and that all conditions precedent herein provided for relating to such transaction have been complied with.
The Servicer shall provide notice of any merger, consolidation or succession pursuant to this Section 7.03 to the Rating Agencies, the Owner Trustee, the Depositor and the Indenture Trustee.
Section 7.04 Limitation on Liability of Servicer and Others. Neither the Servicer nor any of the directors, officers, employees or agents of the Servicer shall be under any liability to the Issuing Entity, the Noteholders or the Certificateholders, except as provided under this Agreement, for any action taken or for refraining from the taking of any action pursuant to this Agreement or for errors in judgment; provided, however, that this provision shall not protect the Servicer or any such person against any liability that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations and duties under this Agreement. The Servicer and any director, officer, employee or agent of the Servicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising under this Agreement.
Except as provided in this Agreement, the Servicer shall not be under any obligation to appear in, prosecute or defend any legal action that shall not be incidental to its duties to service the Receivables in accordance with this Agreement and that in its opinion may involve it in any expense or liability; provided, however, that the Servicer may undertake any reasonable action that it may deem necessary or desirable in respect of this Agreement and the Basic Documents and the rights and duties of the parties to this Agreement and the Basic Documents and the interests of the Certificateholders under this Agreement and the Noteholders under the Indenture.
Section 7.05 World Omni Not To Resign as Servicer. Subject to the provisions of Section 7.03, World Omni shall not resign from the obligations and duties hereby imposed on it as Servicer under this Agreement except upon a determination that the performance of its duties under this Agreement shall no longer be permissible under applicable law and cannot be cured. Notice of any such determination permitting the resignation of World Omni shall be communicated to the Owner Trustee and the Indenture Trustee at the earliest practicable time (and, if such communication is not in writing, shall be confirmed in writing at the earliest practicable time) and any such determination shall be evidenced by an Opinion of Counsel to such effect delivered to the Owner Trustee and the Indenture Trustee concurrently with or promptly after such notice. No such resignation shall become effective until the Indenture Trustee or a successor Servicer shall have assumed the responsibilities and obligations of World Omni in accordance with Section 8.02.
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ARTICLE VIII
DEFAULT
Section 8.01 Servicer Default. Any one of the following events shall constitute a default by the Servicer (a “Servicer Default”):
(a) any failure by the Servicer to deliver to the Indenture Trustee for deposit in any of the Trust Accounts or distribution to the Certificateholders any required payment or to direct the Indenture Trustee to make any required distributions therefrom, which failure continues unremedied for a period of five Business Days after written notice of such failure is received by the Servicer from the Owner Trustee or the Indenture Trustee or after discovery of such failure by an officer of the Servicer; or
(b) failure by the Servicer or, if the Servicer is an affiliate of the Depositor, the Depositor, as the case may be, duly to observe or to perform in any material respect any other covenants or agreements of the Servicer or the Depositor (as the case may be) set forth in this Agreement or any other Basic Document, which failure shall (i) materially and adversely affect the rights of Certificateholders or Noteholders and (ii) continue unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (A) to the Servicer or the Depositor (as the case may be) by the Owner Trustee or the Indenture Trustee or (B) to the Servicer or the Depositor (as the case may be), and to the Owner Trustee and the Indenture Trustee by the Holders of the Notes evidencing at least a majority of the Outstanding Amount of the Controlling Securities and the Holders (as defined in the Trust Agreement) of Certificates evidencing at least a majority of the percentage interest of the Certificates; or
(c) the occurrence of an Insolvency Event with respect to the Servicer or, if the Servicer is an affiliate of the Depositor, the Depositor.
Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (a) above for a period of ten Business Days or referred to under clause (b) for a period of 90 Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and was caused by an act of God or other similar occurrence. Upon the occurrence of any such event, the Servicer shall not be relieved from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Owner Trustee, the Noteholders and the Certificateholders prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations.
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So long as the Servicer Default shall not have been remedied or stayed by the application of the above paragraph, either the Indenture Trustee or the Holders of the Notes evidencing at least a majority of the Outstanding Amount of the Controlling Securities, by notice then given in writing to the Servicer (and to the Indenture Trustee and the Owner Trustee if given by the Noteholders) may terminate all the rights and obligations (other than the obligations set forth in Section 7.02 hereof) of the Servicer under this Agreement. On or after the receipt by the Servicer of such written notice, all authority and power of the Servicer under this Agreement, whether with respect to the Notes, the Certificates or the Receivables or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such successor Servicer as may be appointed under Section 8.02; and, without limitation, the Indenture Trustee and the Owner Trustee are hereby authorized and empowered to execute and deliver, for the benefit of the predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of the Receivables and related documents, or otherwise. The predecessor Servicer shall cooperate with the successor Servicer, the Indenture Trustee and the Owner Trustee in effecting the termination of the responsibilities and rights of the predecessor Servicer under this Agreement, including the transfer to the successor Servicer for administration by it of all cash amounts that shall at the time be held by the predecessor Servicer for deposit, or shall thereafter be received by it with respect to any Receivable. Further, in such event, the Servicer shall use commercially reasonable efforts to effect the orderly and efficient transfer of the servicing of the Receivables to the successor Servicer, and as promptly as practicable, the Servicer shall provide to the successor Servicer a current computer tape containing all information from the Receivables Files required for the proper servicing of the Receivables, together with the documentation containing any and all information necessary for the use of the tape. All reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with transferring the Receivable Files to the successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this section shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expenses. Upon receipt of notice of the occurrence of a Servicer Default, the Owner Trustee shall give notice thereof to the Depositor who promptly shall provide such notice to the Rating Agencies.
Section 8.02 Appointment of Successor.
(a) Upon the Servicer’s receipt of notice of termination pursuant to Section 8.01 or the Servicer’s resignation in accordance with the terms of this Agreement, the predecessor Servicer shall continue to perform its functions as Servicer under this Agreement, in the case of termination, only until the date specified in such termination notice or, if no such date is specified in a notice of termination, until receipt of such notice and, in the case of resignation, until the later of (i) the date 45 days from the delivery to the Owner Trustee and the Indenture Trustee of written notice of such resignation (or written confirmation of such notice) in accordance with the terms of this Agreement and (ii) the date upon which the predecessor Servicer shall become unable to act as Servicer, as specified in the notice of resignation and accompanying Opinion of Counsel. In the event of the Servicer’s termination hereunder, the Indenture Trustee shall appoint a successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Owner Trustee and the Indenture Trustee. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with this Section, the Indenture Trustee without further action shall automatically be appointed the successor Servicer and the Indenture Trustee shall be entitled to the Servicing Fee. Notwithstanding the above, the Indenture Trustee shall, if it shall be legally unable so to act, appoint or petition a court of competent jurisdiction to appoint any established institution, having a net worth of not less than $100,000,000 and whose regular business shall include the servicing of automotive receivables, as the successor to the Servicer under this Agreement.
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(b) Upon appointment, the successor Servicer (including the Indenture Trustee acting as successor Servicer) shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer and shall be entitled to the Servicing Fee and all the rights granted to the predecessor Servicer by the terms and provisions of this Agreement. Notwithstanding anything to the contrary contained herein or in the Basic Documents, if the Indenture Trustee shall act as Successor Servicer, it shall not, in any event have obligations (i) with respect to the repurchase of the Receivables, (ii) to pay any fees, expenses and other amounts owing to the Administrator, or (iii) to pay any indemnities owed by the Servicer to another party under the Basic Documents (other than those resulting from the actions or inactions of the Indenture Trustee as successor Servicer).
(c) The successor Servicer may not resign unless it is prohibited from serving as such by law.
Section 8.03 Notification to Noteholders and Certificateholders. Upon any termination of, or appointment of a successor to, the Servicer pursuant to this Article VIII, the Indenture Trustee shall give prompt written notice thereof to Noteholders, the Certificateholders and the Depositor who promptly shall provide such notice to the Rating Agencies.
Section 8.04 Waiver of Past Defaults. The Holders of Notes evidencing at least a majority of the Outstanding Amount of the Controlling Securities may, on behalf of all Noteholders, waive in writing any default by the Servicer in the performance of its obligations hereunder and its consequences, except a default in making any required deposits to or payments from any of the Trust Accounts or to the Certificateholders in accordance with this Agreement. Upon any such waiver of a past default, such default shall cease to exist, and any Servicer Default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereto.
Section 8.05 Payment of Servicing Fees. If the Servicer shall change, the predecessor Servicer shall be entitled to receive any accrued and unpaid Servicing Fees through the date of such Successor Servicer’s acceptance hereunder in accordance with Section 4.08.
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ARTICLE IX
TERMINATION
Section 9.01 Optional Purchase of All Receivables.
(a) On the Payment Date immediately following (and on each Payment Date thereafter) the last day of any Collection Period as of which the then outstanding aggregate Principal Balance of the Receivables is 10% or less of the Aggregate Starting Principal Balance, the Servicer shall have the option to purchase the Owner Trust Estate, other than the Trust Accounts. To exercise such option, the Servicer shall deposit pursuant to Section 5.05 in the Collection Account an amount equal to the aggregate Purchase Amount for the Receivables (including Defaulted Receivables), and shall succeed to all interests in and to the Trust. Notwithstanding the foregoing, the Servicer shall not be permitted to exercise such option unless the amount to be deposited in the Collection Account pursuant to the preceding sentence is greater than or equal to the sum of the Outstanding Amount of the Notes, all accrued but unpaid interest (including any overdue interest and premium) thereon and all amounts owing by the Issuing Entity to the Asset Representations Reviewer.
(b) As described in Article IX of the Trust Agreement, notice of any termination of the Trust shall be given by the Servicer to the Owner Trustee and the Indenture Trustee as soon as practicable after the Servicer has received notice thereof.
(c) Following the satisfaction and discharge of the Indenture and the payment in full of the principal of and interest on the Notes, the Certificateholders will succeed to the rights of the Noteholders hereunder other than Section 5.07(b) and the Owner Trustee will succeed to the rights of, but not the obligations of, the Indenture Trustee pursuant to this Agreement.
ARTICLE X
MISCELLANEOUS
Section 10.01 Amendment.
(a) This Agreement may be amended by the Depositor, the Servicer and the Issuing Entity, with the consent of the Indenture Trustee, but without the consent of any of the Noteholders or the Certificateholders, to cure any ambiguity or to correct or supplement any provisions in this Agreement or for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders or the Certificateholders; provided that such amendments require: (i) satisfaction of the Rating Agency Condition or (ii) an Officer’s Certificate of the Servicer delivered to the Issuing Entity, the Owner Trustee and the Indenture Trustee stating that the amendment will not materially and adversely affect the interest of any Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to time by the Depositor, the Servicer and the Issuing Entity, with the consent of the Indenture Trustee, the consent of Holders of Notes evidencing at least a majority of the Outstanding Amount of the Controlling Securities (unless (i) the interests of the Noteholders are not affected materially and adversely, as evidenced by an Officer’s Certificate of the Servicer to that effect delivered to the Indenture Trustee by the Depositor or (ii) satisfaction of the Rating Agency Condition) and the consent of the Holders (as defined in the Trust Agreement) of Certificates evidencing at least a majority of the percentage interest of the Certificates (unless (i) the interests of the Certificateholders are not affected materially and adversely and (ii) an Officer’s Certificate of the Servicer to that effect is delivered to the Owner Trustee by the Depositor) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders or the Certificateholders; provided, however, that no such amendment shall (a) change the date of payment of any installment of principal of or interest on any Note, or reduce the principal amount thereof, (b) change the provisions of this Sale and Servicing Agreement relating to the application of collections on, or the proceeds of the sale of, the Trust Estate to payment of principal of or interest on the Notes or (c) reduce the consent percentages in this sentence, without the consent of the Holders of all outstanding Notes and the Holders (as defined in the Trust Agreement) of all the outstanding Certificates affected thereby.
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(c) Promptly after the execution of any such amendment or consent, the Servicer shall furnish written notification of the substance of such amendment or consent to each Certificateholder, the Indenture Trustee, the Owner Trustee and each of the Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders or Noteholders pursuant to this Section to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall approve the substance thereof.
(e) Prior to the execution of any amendment to this Agreement, the Owner Trustee, on behalf of the Issuing Entity, and the Indenture Trustee shall be entitled to receive and conclusively rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and that all conditions precedent thereto have been satisfied, and the Opinion of Counsel referred to in Section 10.02(h)(A). The Owner Trustee and the Indenture Trustee may, but shall not be obligated to, enter into any such amendment which affects the Owner Trustee’s or the Indenture Trustee’s, as applicable, own rights, duties or immunities under this Agreement or otherwise.
Section 10.02 Protection of Title to Trust.
(a) The Depositor shall file such financing statements and cause to be filed such continuation statements, all in such manner and in such places as may be required by law fully to preserve, maintain and protect the interest of the Issuing Entity and of the Indenture Trustee in the Receivables and in the proceeds thereof. The Depositor hereby authorizes the filing of such financing statements and hereby ratifies any such financing statements filed prior to the date hereof. The Depositor shall deliver (or cause to be delivered) to the Owner Trustee and the Indenture Trustee file-stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing.
(b) Neither the Depositor nor the Servicer shall change its name, identity or corporate structure in any manner that could reasonably be expected to make any financing statement or continuation statement filed in accordance with paragraph (a) above seriously misleading within the meaning of Section 9-506 of the UCC, unless it shall have given the Owner Trustee and the Indenture Trustee at least five days’ prior written notice thereof and shall have promptly filed appropriate amendments to all previously filed financing statements or continuation statements.
(c) Each of the Depositor and the Servicer shall have an obligation to give the Owner Trustee and the Indenture Trustee at least 60 days’ prior written notice of any relocation of its principal executive office or a change in its jurisdiction of organization if, as a result of such relocation or change in its jurisdiction of organization, the applicable provisions of the UCC would require the filing of any amendment of any previously filed financing or continuation statement or of any new financing statement and shall promptly file any such amendment or new financing statement. The Servicer shall at all times maintain each office from which it shall service Receivables, and its principal executive office, within the United States of America.
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(d) The Servicer shall maintain accounts and records as to each Receivable accurately and in sufficient detail to permit (i) the reader thereof to know at any time the status of such Receivable, including payments and recoveries made and payments owing (and the nature of each) and (ii) reconciliation between payments or recoveries on (or with respect to) each Receivable and the amounts from time to time deposited in the Collection Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, within five (5) Business Days from and after the time of sale under this Agreement of the Receivables, the Servicer’s master computer records (including any backup archives) that refer to a Receivable shall indicate clearly that such Receivable has been sold to the Issuing Entity.
(f) If at any time the Depositor or the Servicer shall propose to sell, grant a security interest in, or otherwise transfer any interest in automotive receivables to any prospective purchaser, lender or other transferee, the Servicer shall give to such prospective purchaser, lender or other transferee computer tapes, records or printouts (including any restored from backup archives) that, if they shall refer in any manner whatsoever to any Receivable, shall indicate clearly that such Receivable has been sold and is owned by the Issuing Entity and has been pledged to the Indenture Trustee.
(g) Upon request, the Servicer shall furnish to the Owner Trustee or to the Indenture Trustee, within five Business Days, a list of all Receivables (by contract number and name of Obligor) then held as part of the Trust.
(h) The Servicer shall deliver to the Owner Trustee and the Indenture Trustee:
(A) promptly after the execution and delivery of this Agreement, an Opinion of Counsel stating that, in the opinion of such counsel, either (1) all financing statements and continuation statements have been filed that are necessary fully to preserve and protect the interest of the Trust and the Indenture Trustee in the Receivables, and reciting the details of such filings or referring to prior Opinions of Counsel in which such details are given, or (2) no such action shall be necessary to preserve and protect such interest other than any action necessary (as of the date of such opinion) to be taken in the following year to preserve and protect such interest; and
(B) on or before March 31, in each calendar year, beginning in 2018, an Opinion of Counsel, dated as of a date during such 90-day period, stating that, in the opinion of such counsel, either (1) all financing statements and continuation statements have been filed that are necessary fully to preserve and protect the interest of the Trust and the Indenture Trustee in the Receivables, and reciting the details of such filings or referring to prior Opinions of Counsel in which such details are given, or (2) no such action shall be necessary to preserve and protect such interest other than any action necessary (as of the date of such opinion) to be taken in the following year to preserve and protect such interest.
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Each Opinion of Counsel referred to in clause (A)(2) or (B)(2) above shall specify any action necessary (as of the date of such opinion) to be taken in the following year to preserve and protect such interest.
(i) The Depositor shall, to the extent required by applicable law, cause the Notes to be registered with the Commission pursuant to Section 12(b) or Section 12(g) of the Exchange Act within the time periods specified in such sections.
(j) The Servicer shall deliver to the Owner Trustee and the Indenture Trustee, prior to any change in the location of the Receivable Files, an Opinion of Counsel stating that, in the opinion of such counsel, either (i) all financing statements and continuation statements have been filed that are necessary fully to preserve and protect the interest of the Trust and the Indenture Trustee in the Receivables, and reciting the details of such filings or referring to prior Opinions of Counsel in which such details are given, or (ii) no such action shall be necessary to preserve and protect such interest.
Section 10.03 Notices. All demands, deliveries, notices, communications and instructions upon or to the Depositor, the Servicer, the Owner Trustee, the Indenture Trustee or the Rating Agencies under this Agreement shall be by facsimile, in writing, personally delivered or mailed by certified mail, return receipt requested, and shall be deemed to have been duly given upon receipt or by electronic mail (if designated by such party to the other parties) (a) in the case of the Depositor, to World Omni Auto Receivables LLC, 190 Jim Moran Boulevard, Deerfield Beach, Florida 33442, Telecopy: (954) 429-2685, Attention: Treasurer, (b) in the case of the Servicer, World Omni Financial Corp., 190 Jim Moran Boulevard, Deerfield Beach, Florida 33442, Telecopy: (954) 429-2685, Attention: Treasurer, (c) in the case of the Issuing Entity or the Owner Trustee, at its Corporate Trust Office, Telecopy: (302) 575-2006, Email: Tracy.M.McLamb@wellsfargo.com, (d) in the case of the Indenture Trustee, at its Corporate Trust Office, Telecopy: (866) 807-8670, Email: christopher.nuxoll@usbank.com, and (e) in the case of the Rating Agencies, to the Depositor who promptly shall post such notice to the website maintained by the Depositor for notifications to nationally recognized statistical rating organizations; or, as to each of the foregoing, at such other address or electronic mail address as shall be designated by written notice to the other parties; provided, that, so long as World Omni is the Servicer, the Servicer’s obligation to deliver or provide any demand, delivery, notice, communication or instruction (including the Servicer’s Certificate) to any Person other than a Noteholder shall be satisfied by the Servicer making such demand, delivery, notice, communication or instruction available at https://via.intralinks.com/, or such other website or distribution service or provider as the Servicer shall designate by written notice to the other parties.
Section 10.04 Assignment by the Depositor or the Servicer. Notwithstanding anything to the contrary contained herein, except as provided in the remainder of this Section, as provided in Sections 6.04 and 7.03 herein and as provided in the provisions of this Agreement concerning the resignation of the Servicer, this Agreement may not be assigned by the Depositor or the Servicer.
40 |
Section 10.05 Limitations on Rights of Others. The provisions of this Agreement are solely for the benefit of the Depositor, the Servicer, the Issuing Entity, the Owner Trustee, the Certificateholders, the Indenture Trustee and the Noteholders, and nothing in this Agreement, whether express or implied, shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Owner Trust Estate or under or in respect of this Agreement or any covenants, conditions or provisions contained herein.
Section 10.06 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 10.07 Separate Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 10.08 Headings. The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.
Section 10.09 Governing Law. This Agreement shall be construed in accordance with the laws of the State of New York, without regard to any otherwise applicable conflict of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.
Section 10.10 Assignment by Issuing Entity. Each of World Omni and the Depositor hereby acknowledges and consents to any mortgage, pledge, assignment and grant of a security interest by the Issuing Entity to the Indenture Trustee pursuant to the Indenture for the benefit of the Noteholders of all right, title and interest of the Issuing Entity in, to and under the Receivables and/or the assignment of any or all of the Issuing Entity’s rights and obligations hereunder to the Indenture Trustee.
Section 10.11 Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement, the Servicer and the Depositor shall not, prior to the date which is one year and one day after the termination of this Agreement with respect to the Issuing Entity, acquiesce, petition or otherwise invoke or cause the Issuing Entity to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Issuing Entity under any federal or state bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuing Entity or any substantial part of their property, or ordering the winding up or liquidation of the affairs of the Issuing Entity.
(b) Notwithstanding any prior termination of this Agreement, the Servicer, solely in its capacity as a creditor of the Depositor, shall not, prior to the date which is one year and one day after the termination of this Agreement with respect to the Depositor, acquiesce, petition or otherwise invoke the process of any court or government authority for the purpose of commencing or sustaining an involuntary case against the Depositor under any federal or state bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Depositor or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Depositor.
41 |
(c) In the event that any Person (other than the Depositor) is deemed, under applicable law by any court or other authority of competent jurisdiction, to have an interest in any assets of the Depositor or any Affiliate of the Depositor other than the beneficial interest in the Trust (“other assets”), the parties to this Agreement acknowledge and agree that: (i) such Person’s claim is against the assets of the Trust and the Trust Estate only, (ii) such Person’s claim against any other assets shall be, and hereby is, subject and subordinate in all respects to the rights of other Persons to whom rights in the other assets have been expressly granted (“entitled Persons”), including to the payment in full of all amounts owing to such entitled Persons, and (iii) the covenant set forth in the preceding clause (ii) constitutes a “subordination agreement” within the meaning of, and subject to, Section 510(a) of the Bankruptcy Code.
Section 10.12 Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) It is expressly understood and agreed by the parties hereto that (i) this Agreement is executed and delivered by the Trustee Bank, not individually or personally but solely as Owner Trustee, in the exercise of the powers and authority conferred and vested in it under the Trust Agreement, (ii) each of the representations, undertakings and agreements herein made on the part of the Issuing Entity is made and intended not as personal representations, undertakings and agreements by the Trustee Bank, but is made and intended for the purpose of binding only the Issuing Entity, (iii) nothing herein contained shall be construed as creating any liability on the Trustee Bank, individually or personally, to perform any covenant of the Issuing Entity, either expressed or implied, contained herein, all such liability of the Trustee Bank in its individual or personal capacity, if any, being expressly waived by the parties hereto and by any person claiming by, through or under the parties hereto, (iv) the Trustee Bank has made no investigation into the accuracy or completeness of any representations or warranties made by the Issuing Entity in this Agreement, and (v) under no circumstances shall the Trustee Bank be personally liable for the payment of any indebtedness or expenses of the Issuing Entity under this Agreement or any other related documents.
(b) Notwithstanding anything contained herein to the contrary, this Agreement has been accepted by U.S. Bank National Association, not in its individual capacity but solely as Indenture Trustee and in no event shall U.S. Bank National Association have any liability for the representations, warranties, covenants, agreements or other obligations of the Issuing Entity hereunder or in any of the certificates, notices or agreements delivered pursuant hereto, as to all of which recourse shall be had solely to the assets of the Issuing Entity. For all purposes of this Agreement, the Indenture Trustee shall be entitled to all rights, privileges, benefits, protections, immunities, and indemnities provided to it under the Indenture.
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Section 10.13 Regulation AB. The Depositor and the Servicer acknowledge and agree that the purpose of this Section 10.13 is to facilitate compliance by the Depositor with the provisions of Regulation AB and the related rules and regulations of the Commission. The Depositor shall not exercise its right to request delivery of information or other performance under these provisions other than in good faith, or for purposes other than compliance with the Securities Act, the Exchange Act and the rules and regulations of the Commission under the Securities Act and the Exchange Act. The Servicer acknowledges that interpretations of the requirements of Regulation AB may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and the Servicer agrees to comply with all reasonable requests made by the Depositor in good faith for delivery of information and shall deliver (and shall cause each of its Reporting Subcontractors to deliver) to the Depositor all information and certifications reasonably required by the Depositor to comply with its Exchange Act reporting obligations, including with respect to any of its predecessors or successors. The obligations of a Servicer to provide such information shall survive the removal or termination of a Servicer as Servicer hereunder.
Section 10.14 Notices to the Rating Agencies. If World Omni is no longer the Servicer, the successor Servicer shall provide any required Rating Agency notices under this Agreement to the Depositor, who promptly shall provide such notices to the Rating Agencies.
43 |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers as of the day and year first above written.
WORLD OMNI AUTO RECEIVABLES | ||
TRUST 2017-A | ||
by: Wells Fargo Delaware Trust Company, N.A., | ||
not in its individual capacity | ||
but solely as Owner Trustee, | ||
By: | /s/ Jose I. Mercado | |
Name: | Jose I. Mercado | |
Title: | Vice President | |
WORLD OMNI AUTO RECEIVABLES LLC, | ||
as Depositor | ||
By: | /s/ Bryan Romano | |
Name: | Bryan Romano | |
Title: | Assistant Treasurer | |
WORLD OMNI FINANCIAL CORP., as Servicer, and, with respect to Sections 3.01 and 3.02, individually | ||
By: | /s/ Bryan Romano | |
Name: | Bryan Romano | |
Title: | Assistant Treasurer |
44 |
Acknowledged and agreed to as of the day | ||
and year first above written: | ||
U.S. BANK NATIONAL ASSOCIATION | ||
not in its individual capacity but solely as | ||
Indenture Trustee | ||
By: | /s/ Christopher J. Nuxoll | |
Name: | Christopher J. Nuxoll | |
Title: | Vice President |
45 |
SCHEDULE A
Schedule of Receivables
Documents on file at:
Kirkland & Ellis LLP
300 North LaSalle Street
Chicago, Illinois 60654
Sch. A
SCHEDULE B
Location of Receivable Files
World Omni Financial Corp.
6150 Omni Park Drive
Mobile, Alabama 36609
RecordMax LLC
2051 West I-65 Service Rd. N.
Mobile, AL 36618
HP Enterprise Services LLC
5400 Legacy Dr
Plano, TX 75024
RouteOne LLC
31500 Northwestern Hwy Ste 200
Farmington Hills, MI 48334
Sch. B
EXHIBIT A
Form of Distribution Statement to Noteholders
World Omni Financial Corp.
World Omni Auto Receivables Trust 2017-A Payment Date Statement to Noteholders
Total Available Funds
Class A-1 Notes: ($_______ per $1,000 original principal amount)
Class A-2a Notes: ($_______ per $1,000 original principal amount)
Class A-2b Notes: ($_______ per $1,000 original principal amount)
Class A-3 Notes: ($_______ per $1,000 original principal amount)
Class A-4 Notes: ($_______ per $1,000 original principal amount)
Class B Notes: ($_______ per $1,000 original principal amount)
Outstanding Amount
Class A-1 Notes
Class A-2a Notes
Class A-2b Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
Note Pool Factor
Class A-1 Notes
Class A-2a Notes
Class A-2b Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
Servicing Fee
Servicing Fee Per $1,000 Note
Reserve Account Balance
Ex. A
EXHIBIT B
Form of Servicer’s Certificate
World Omni Financial Corp.
World Omni Auto Receivables Trust 2017-A Monthly Servicer’s Certificate
World Omni Auto Receivables Trust 2017-A |
Monthly Servicer Certificate |
mm/dd/yyyy |
Dates Covered | |||
Collections Period | |||
Interest Accrual Period | |||
30/360 Days | |||
Actual/360 Days | |||
Distribution Date |
Collateral Pool Balance Data | $ Amount | # of Accounts | |||
Pool Balance at mm/dd/yy | |||||
Yield Supplement Overcollateralization Amount at mm/dd/yy | |||||
Receivables Balance at mm/dd/yy | |||||
Principal Payments | |||||
Defaulted Receivables | |||||
Repurchased Accounts | |||||
Yield Supplement Overcollateralization Amount at mm/dd/yy | |||||
Pool Balance at mm/dd/yy |
Ex. B-1 |
Pool Statistics | $ Amount | # of Accounts | |||
Pool Factor | |||||
Prepayment ABS Speed | |||||
Aggregate Starting Principal Balance | |||||
Pre-Funding Contracts added mm/dd/yy | |||||
Delinquent Receivables: | |||||
Past Due 31-60 days | |||||
Past Due 61-90 days | |||||
Past Due 91-120 days | |||||
Past Due 121 + days | |||||
Total | |||||
Total 31+ Delinquent as % Ending Pool Balance | |||||
Total 61+ Delinquent as % Ending Pool Balance | |||||
Delinquency Trigger Occurred | [Yes/No] | ||||
Recoveries | |||||
Aggregate Net Losses/(Gains) - mm/yyyy | |||||
Ratio of Net Loss to the Receivables Balance as of beginning of Collection period (Annualized) |
|||||
Current Net Loss Ratio | |||||
Prior Period Net Loss Ratio | |||||
Second Prior Period Net Loss Ratio | |||||
Third Prior Period Net Loss Ratio | |||||
Four Month Average | |||||
Cumulative Net Loss as a % of Aggregate Starting Principal Balance | |||||
Overcollateralization Target Amount | |||||
Actual Overcollateralization | |||||
Weighted Average APR | |||||
Weighted Average APR, Yield Adjusted | |||||
Weighted Average Remaining Term |
Flow of Funds | $ Amount | ||||
Collections | |||||
Investment Earnings on Cash Accounts | |||||
Servicing Fee | |||||
Transfer to Collection Account | |||||
Available Funds | |||||
Distributions of Available Funds | |||||
(1) Asset Representation Reviewer Amounts (up to $150,000 per year) | |||||
(2) Class A Interest | |||||
(3) Noteholders’ First Priority Principal Distributable Amount | |||||
(4) Class B Interest | |||||
(5) Noteholders’ Second Priority Principal Distributable Amount | |||||
(6) Required Reserve Amount | |||||
(7) Noteholders’ Principal Distributable Amount | |||||
(8) Asset Representation Reviewer Amounts (in excess of 1) | |||||
(9) Distribution to Certificateholders | |||||
Total Distributions of Available Funds | |||||
Servicing Fee | |||||
Unpaid Servicing Fee | |||||
Change in amount of Unpaid Servicing Fee from the prior period |
Ex. B-2 |
Note Balances & Note Factors | $ Amount | ||||
Original Class A | |||||
Original Class B | |||||
Total Class A & B | |||||
Note Balance @ mm/dd/yy | |||||
Principal Paid | |||||
Note Balance @ mm/dd/yy | |||||
Class A-1 | |||||
Note Balance @ mm/dd/yy | |||||
Principal Paid | |||||
Note Balance @ mm/dd/yy | |||||
Note Factor @ mm/dd/yy | |||||
Class A-2a | |||||
Note Balance @ mm/dd/yy | |||||
Principal Paid | |||||
Note Balance @ mm/dd/yy | |||||
Note Factor @ mm/dd/yy | |||||
Class A-2b | |||||
Note Balance @ mm/dd/yy | |||||
Principal Paid | |||||
Note Balance @ mm/dd/yy | |||||
Note Factor @ mm/dd/yy | |||||
Class A-3 | |||||
Note Balance @ mm/dd/yy | |||||
Principal Paid | |||||
Note Balance @ mm/dd/yy | |||||
Note Factor @ mm/dd/yy | |||||
Class A-4 | |||||
Note Balance @ mm/dd/yy | |||||
Principal Paid | |||||
Note Balance @ mm/dd/yy | |||||
Note Factor @ mm/dd/yy | |||||
Class B | |||||
Note Balance @ mm/dd/yy | |||||
Principal Paid | |||||
Note Balance @ mm/dd/yy | |||||
Note Factor @ mm/dd/yy |
Ex. B-3 |
Interest & Principal Payments | $ Amount | ||||
Total Interest Paid | |||||
Total Principal Paid | |||||
Total Paid | |||||
Class A-1 | |||||
Coupon | |||||
Interest Paid | |||||
Principal Paid | |||||
Total Paid to A-1 Holders | |||||
Class A-2a | |||||
Coupon | |||||
Interest Paid | |||||
Principal Paid | |||||
Total Paid to Class A-2a Holders | |||||
Class A-2b | |||||
Coupon | |||||
Interest Paid | |||||
Principal Paid | |||||
Total Paid to Class A-2b Holders | |||||
Class A-3 | |||||
Coupon | |||||
Interest Paid | |||||
Principal Paid | |||||
Total Paid to A-3 Holders | |||||
Class A-4 | |||||
Coupon | |||||
Interest Paid | |||||
Principal Paid | |||||
Total Paid to A-4 Holders | |||||
Class B | |||||
Coupon | |||||
Interest Paid | |||||
Principal Paid | |||||
Total Paid to B Holders |
Ex. B-4 |
Distribution per $1,000 of Notes | Total | ||||
Total Interest Distribution Amount | |||||
Total Interest Carryover Shortfall | |||||
Total Principal Distribution Amount | |||||
Total Distribution Amount | |||||
A-1 Interest Distribution Amount | |||||
A-1 Interest Carryover Shortfall | |||||
A-1 Principal Distribution Amount | |||||
Total A-1 Distribution Amount | |||||
A-2a Interest Distribution Amount | |||||
A-2a Interest Carryover Shortfall | |||||
A-2a Principal Distribution Amount | |||||
Total A-2a Distribution Amount | |||||
A-2b Interest Distribution Amount | |||||
A-2b Interest Carryover Shortfall | |||||
A-2b Principal Distribution Amount | |||||
Total A-2b Distribution Amount | |||||
A-3 Interest Distribution Amount | |||||
A-3 Interest Carryover Shortfall | |||||
A-3 Principal Distribution Amount | |||||
Total A-3 Distribution Amount | |||||
A-4 Interest Distribution Amount | |||||
A-4 Interest Carryover Shortfall | |||||
A-4 Principal Distribution Amount | |||||
Total A-4 Distribution Amount | |||||
B Interest Distribution Amount | |||||
B Interest Carryover Shortfall | |||||
B Principal Distribution Amount | |||||
Total B Distribution Amount | |||||
Noteholders’ First Priority Principal Distributable Amount | |||||
Noteholders’ Second Priority Principal Distributable Amount | |||||
Noteholders’ Principal Distributable Amount |
Ex. B-5 |
Account Balances | $ Amount | ||||
Reserve Account | |||||
Balance as of mm/dd/yy | |||||
Investment Earnings | |||||
Investment Earnings paid | |||||
Deposit (Withdrawal) | |||||
Balance as of mm/dd/yy | |||||
Change | |||||
Required Reserve Amount |
Ex. B-6 |
EXHIBIT C
Form of SSA Assignment
As of April 19, 2017, for value received, in accordance with the Sale and Servicing Agreement, dated as of the date hereof (the “Sale and Servicing Agreement”), among World Omni Auto Receivables LLC, a Delaware limited liability company (the “Depositor”), World Omni Auto Receivables Trust 2017-A (the “Issuing Entity”) and World Omni Financial Corp., a Florida corporation, (the “Servicer”), as acknowledged and accepted by U.S. Bank National Association, as Indenture Trustee, the Depositor does hereby sell, assign, transfer and otherwise convey unto the Issuing Entity, without recourse, all right, title and interest of the Depositor in, to and under (a) the Receivables identified on the Schedule of Receivables attached hereto having an aggregate Starting Principal Balance of $1,371,460,827.67 and all monies received thereon and in respect thereof after the Cutoff Date; (b) the security interests in, and the liens on, the Financed Vehicles granted by Obligors in connection with the Receivables and any other interest of the Depositor in such Financed Vehicles; (c) any proceeds with respect to the Receivables from claims on any physical damage, credit life or disability insurance policies covering such Financed Vehicles or Obligors; (d) any Financed Vehicle that shall have secured an Receivable and shall have been acquired by or on behalf of the Depositor, the Servicer or the Trust; (e) all funds on deposit in, and “financial assets” (as such term is defined in the Uniform Commercial Code as from time to time in effect) credited to, the Trust Accounts, including the Reserve Account, from time to time, including the Reserve Account Initial Deposit, and in all investments and proceeds thereof (including all income thereon); (f) the Receivables Purchase Agreement; (g) all “accounts,” “chattel paper,” “general intangibles” and “promissory notes” (as such terms are defined in the Uniform Commercial Code as from time to time in effect) constituting or relating to the foregoing; and (h) the proceeds of any and all of the foregoing; provided, however, that the foregoing items (a) through (h) shall not include the Notes and Certificates.
The foregoing sale does not constitute and is not intended to result in any assumption by the Issuing Entity of any obligation of the undersigned to the Obligors, Dealers, insurers or any other Person in connection with the Receivables, the agreements with Dealers, any insurance policies or any agreement or instrument relating to any of them.
This SSA Assignment is made pursuant to and upon the representations, warranties and agreements on the part of the undersigned contained in the Sale and Servicing Agreement and is to be governed by the Sale and Servicing Agreement.
Capitalized terms used herein and not otherwise defined shall have the meaning assigned to them in the Sale and Servicing Agreement.
* * * * *
Ex. C-1 |
IN WITNESS WHEREOF, the undersigned has caused this SSA Assignment to be duly executed as of the day and year first above written.
WORLD OMNI AUTO RECEIVABLES LLC | ||
By: | ||
Name: | ||
Title: |
Ex. C-2 |
APPENDIX A
PART I - DEFINITIONS
All terms used in this Appendix shall have the defined meanings set forth in this Part I when used in the Basic Documents, unless otherwise defined therein.
“Accredited Investor” has the meaning assigned in Section 2.04(e) of the Indenture.
“Act of the Noteholders” has the meaning specified in Section 11.03(a) of the Indenture.
“Administration Agreement” means the Administration Agreement, dated as of the Closing Date, among the Administrator, the Issuing Entity, the Depositor and the Indenture Trustee, as amended from time to time.
“Administrator” means World Omni, or any successor Administrator under the Administration Agreement.
“ADR Organization” means The American Arbitration Association or, if The American Arbitration Association no longer exists or if its ADR Rules would no longer permit mediation or arbitration, as applicable, of the dispute, another nationally recognized mediation or arbitration organization selected by World Omni.
“ADR Rules” means the relevant rules of the ADR Organization for mediation (including non-binding arbitration) or binding arbitration, as applicable, of commercial disputes in effect at the time of the mediation or arbitration.
“Affiliate” means, with respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Aggregate Starting Principal Balance” means as of any date of determination, the aggregate of the Starting Principal Balances of the Receivables as of the Cutoff Date, which is equal to the Initial Aggregate Starting Principal Balance.
“Amount Financed” means, with respect to a Receivable, the amount advanced under the Receivable toward the purchase price of the Financed Vehicle, warranty or insurance premium and any related costs.
“Annual Percentage Rate” or “APR” of a Receivable means the annual rate of finance charges stated in the related Contract.
“Asset Representations Review Agreement” shall mean the Asset Representations Review Agreement, dated as of the Closing Date, among World Omni, as servicer, the Issuing Entity and the Asset Representations Reviewer, as amended from time to time.
App. A-1 |
“Asset Representations Reviewer” means Clayton Fixed Income Services LLC, as asset representations reviewer under the Asset Representations Review Agreement, or any successor Asset Representations Reviewer under the Asset Representations Review Agreement.
“Assignment” shall mean any RPA Assignment or SSA Assignment.
“Authorized Officer” means, with respect to the Owner Trustee, any officer of the Owner Trustee or other Person who is authorized to act for the Owner Trustee in matters relating to the Issuing Entity (including any agent of the Owner Trustee acting under a power of attorney) and, with respect to the Issuing Entity, any Authorized Officer of the Owner Trustee or, so long as the Administration Agreement is in effect, the president, any vice president, treasurer, assistant treasurer, secretary or assistant secretary of the Administrator who is authorized to act for the Administrator in matters relating to the Issuing Entity 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 Closing Date (as such list may be modified or supplemented from time to time thereafter).
“Available Funds” means, with respect to any Payment Date, (1) the sum of the following amounts, without duplication, with respect to the Receivables in respect of the Collection Period preceding such Payment Date: (a) all collections on Receivables, (b) all Recoveries, (c) the Purchase Amount of each Receivable that became a Purchased Receivable as of the last day of the related Collection Period, (d) partial prepayments relating to refunds of warranty or insurance financed by the respective Obligor thereon as part of the original contract and only to the extent not included under clause (a) above, (e) amounts on deposit in the Reserve Account after giving effect to all other deposits and withdrawals thereto or therefrom on the Payment Date relating to such Collection Period in excess of the Required Reserve Amount, (f) Investment Earnings for the related Payment Date, (g) any Collection Account Redeposits for the related Payment Date, (h) all amounts received from the Indenture Trustee pursuant to Section 5.04 of the Indenture minus (2) the Servicing Fee and other amounts payable to the Servicer pursuant to Section 4.08 of the Sale and Servicing Agreement for the related Payment Date (unless the Servicer elects to defer part or all of such fee); provided, however, that in calculating Available Funds all payments and proceeds of any Purchased Receivables the Purchased Amount of which has been included in Available Funds in a prior Collection Period shall be excluded. Available Funds for each Payment Date will not include, and the amount of Available Funds will not be reduced by, the amount of any Supplemental Servicing Fees.
“Basic Documents” means the Indenture, the Certificate of Trust, the Trust Agreement, the Sale and Servicing Agreement, the Receivables Purchase Agreement, the Administration Agreement, the Note Depository Agreement, the Asset Representations Review Agreement and other documents and certificates delivered in connection therewith.
“Book-Entry Notes” means a beneficial interest in the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and, to the extent no longer Definitive Notes, Class B Notes, ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 2.11 of the Indenture.
App. A-2 |
“Business Day” means any day other than (i) a Saturday or a Sunday or (ii) a day on which banking institutions or trust companies in the State of Florida, the State of New York, the State of Delaware, the states in which the servicing offices of the Servicer are located or the states in which the Corporate Trust Offices are located are required or authorized by law, regulation or executive order to be closed.
“Certificate of Trust” shall mean the Certificate of Trust in the form of Exhibit B to the Trust Agreement filed for the Trust pursuant to Section 3810(a) of the Delaware Statutory Trust Act.
“Certificateholder” shall mean a Person in whose name a Trust Certificate is registered in the Certificate Register.
“Certificate Register” and “Certificate Registrar” shall mean the register mentioned in and the registrar appointed pursuant to Section 3.04 of the Trust Agreement.
“Certificates” means the Trust Certificates issued by the Issuing Entity pursuant to the Trust Agreement in form and substance attached as Exhibit A thereto.
“Class” means any one of the Class A-1 Notes, the Class A-2a Notes, the Class A-2b Notes, the Class A-3 Notes, the Class A-4 Notes or the Class B Notes.
“Class A Noteholders’ Interest Carryover Shortfall” means, with respect to any Payment Date, the excess of the Class A Noteholders’ Interest Distributable Amount for the preceding Payment Date, over the amount in respect of interest that was actually paid on the Class A Notes on such preceding Payment Date, plus interest on the amount of interest due but not paid to holders of the Class A Notes on the preceding Payment Date, to the extent permitted by law, at the respective interest rates borne by each Class of the Class A Notes for the related Interest Accrual Period.
“Class A Noteholders’ Interest Distributable Amount” means, with respect to any Payment Date, the sum of the Class A Noteholders’ Monthly Interest Distributable Amount for such Payment Date and the Class A Noteholders’ Interest Carryover Shortfall for such Payment Date.
“Class A Noteholders’ Monthly Interest Distributable Amount” means, with respect to any Payment Date, interest accrued for the related Interest Accrual Period on each Class of Class A Notes at the respective interest rate for such Class on the Outstanding Amount of the Notes of such Class on the immediately preceding Payment Date (or, in the case of the initial Payment Date, on the Closing Date), after giving effect to all payments of principal to the Noteholders of such Class on or prior to such preceding Payment Date. For all purposes of this Agreement and the Basic Documents, interest with respect to the Class A-2a Notes, the Class A-3 Notes and the Class A-4 Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The interest due on these Classes of notes on each Payment Date will be the product of:
· | the Outstanding Principal Balance of the related Class of Notes; |
· | the related Interest Rate; and |
App. A-3 |
· | 30 (or, in the case of the initial Payment Date, 26) divided by 360. |
Interest with respect to the Class A-1 Notes and the Class A-2b Notes shall be computed on the basis of the actual number of days in the related Interest Accrual Period and a 360-day year. The interest due on these Classes of notes on each Payment Date will be the product of:
· | the Outstanding Principal Balance of the related Class of Notes; |
· | the related Interest Rate; and |
· | the actual number of days since the previous Payment Date (or, in the case of the initial Payment Date, since the Closing Date) divided by 360. |
“Class A Notes” means the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes.
“Class A-1 Final Scheduled Payment Date” means the April 16, 2018 Payment Date.
“Class A-1 Interest Rate” means 1.10000% per annum computed on the basis of the actual number of days elapsed and on a 360 day year.
“Class A-1 Noteholder” means the Person in whose name a Class A-1 Note is registered in the Note Register.
“Class A-1 Notes” means the Class A-1 1.10000% Asset-Backed Notes, substantially in the form of Exhibit A-1 to the Indenture.
“Class A-2 Final Scheduled Payment Date” means the August 17, 2020 Payment Date.
“Class A-2 Noteholder” means the Person in whose name a Class A-2 Note is registered in the Note Register.
“Class A-2 Notes” means the Class A-2a Notes and the Class A-2b Notes.¶
“Class A-2a Interest Rate” means 1.50% per annum computed on the basis of a 360 day year of twelve 30 day months. ¶
“Class A-2a Noteholder” means the Person in whose name a Class A-2a Note is registered in the Note Register.¶
“Class A-2a Notes” means the Class A-2a 1.50% Asset-Backed Notes, substantially in the form of Exhibit A-2a to the Indenture.¶
“Class A-2b Interest Rate” means with respect to any Payment Date, One-Month LIBOR for the related Payment Date plus 0.14% per annum computed on the basis of the actual number of days elapsed and on a 360 day year; provided, that for any Interest Accrual Period for which the sum of One-Month LIBOR plus 0.14% is less than 0.00%, the Class A-2b Interest Rate shall be deemed to be 0.00%
App. A-4 |
“Class A-2b Noteholder” means the Person in whose name a Class A-2b Note is registered in the Note Register.¶
“Class A-2b Notes” means the Class A-2b Floating Rate Asset-Backed Notes, substantially in the form of Exhibit A-2b to the Indenture.
“Class A-3 Final Scheduled Payment Date” means the September 15, 2022 Payment Date.
“Class A-3 Interest Rate” means 1.93% per annum computed on the basis of a 360 day year of twelve 30 day months.
“Class A-3 Noteholder” means the Person in whose name a Class A-3 Note is registered in the Note Register.
“Class A-3 Notes” means the Class A-3 1.93% Asset-Backed Notes, substantially in the form of Exhibit A-3 to the Indenture.
“Class A-4 Final Scheduled Payment Date” means the June 15, 2023 Payment Date.
“Class A-4 Interest Rate” means 2.24% per annum computed on the basis of a 360 day year of twelve 30 day months.
“Class A-4 Noteholder” means the Person in whose name a Class A-4 Note is registered in the Note Register.
“Class A-4 Notes” means the Class A-4 2.24% Asset-Backed Notes, substantially in the form of Exhibit A-4 to the Indenture.
“Class B Final Scheduled Payment Date” means the February 15, 2024 Payment Date.
“Class B Interest Rate” means 2.38% per annum computed on the basis of a 360 day year of twelve 30 day months.
“Class B Noteholder” means the Person in whose name a Class B Note is registered in the Note Register.
“Class B Noteholders’ Interest Carryover Shortfall” means, with respect to any Payment Date, the excess of the Class B Noteholders’ Interest Distributable Amount for the preceding Payment Date, over the amount in respect of interest that was actually paid on the Class B Notes on such preceding Payment Date, plus interest on the amount of interest due but not paid to holders of the Class B Notes on the preceding Payment Date, to the extent permitted by law, at the interest rate borne by the Class B Notes for the related Interest Accrual Period.
“Class B Noteholders’ Interest Distributable Amount” means, with respect to any Payment Date, the sum of the Class B Noteholders’ Monthly Interest Distributable Amount for such Payment Date and the Class B Noteholders’ Interest Carryover Shortfall for such Payment Date.
App. A-5 |
“Class B Noteholders’ Monthly Interest Distributable Amount” means, with respect to any Payment Date, interest accrued for the related Interest Accrual Period on the Class B Notes at the interest rate for such Class on the Outstanding Amount of the Notes of such Class on the immediately preceding Payment Date (or, in the case of the initial Payment Date, on the Closing Date), after giving effect to all payments of principal to the Noteholders of such Class on or prior to such preceding Payment Date. For all purposes of this Agreement and the Basic Documents, interest with respect to all Class B Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The interest due on these Classes of notes on each Payment Date will be the product of:
· | the Outstanding Principal Balance of the Class B Notes; |
· | the Class B Interest Rate; and |
· | 30 (or, in the case of the initial Payment Date, 26) divided by 360. |
“Class B Notes” means the Class B 2.38% Asset-Backed Notes substantially in the form of Exhibit B to the Indenture.
“Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act.
“Clearing Agency Participant” means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.
“Closing Date” shall mean April 19, 2017.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, and Treasury Regulations promulgated thereunder.
“Collateral” has the meaning specified in the Granting Clause of the Indenture.
“Collection Account” means the account designated as such, established and maintained pursuant to Section 5.01(a)(i) of the Sale and Servicing Agreement.
“Collection Account Redeposits” means, with respect to any Payment Date, amounts that would have been distributed to the Certificateholders on the prior Payment Date but for the direction of the Certificateholders causing such amounts to remain on deposit in the Collection Account.
“Collection Period” means, with respect to any Payment Date, the period from and including the first day of the calendar month immediately preceding the calendar month in which such Payment Date occurs (or with respect to the initial Payment Date, from but excluding the Cutoff Date) to and including the last day of the calendar month immediately preceding the calendar month in which such Payment Date occurs. Any amount stated as of the last day of a Collection Period shall give effect to the following applications as determined as of the close of business on such last day: (1) all applications of collections and (2) all distributions to be made on the related Payment Date.
App. A-6 |
“Collections” shall mean all amounts collected by the Servicer (from whatever source) on or with respect to the Receivables.
“Commission” means the U.S. Securities and Exchange Commission.
“Contract” means a motor vehicle retail installment sale contract.
“Controlling Securities” means (i) the Class A Notes so long as the Class A Notes are outstanding and (ii) after the Class A Notes are no longer outstanding, the Class B Notes so long as the Class B Notes are outstanding.
“Corporate Trust Office” means:
(a) with respect to the Indenture Trustee, (i) solely for purposes of transfer, exchange or surrender of the Notes, 111 East Fillmore Avenue, EP-MN-WS2N, St. Paul, Minnesota 55107, Attention: Bondholder Services, and (ii) the principal office of the Indenture Trustee at which at any particular time the Indenture shall be administered, which office at the date of execution of the Indenture is located at U.S. Bank National Association, 190 South LaSalle Street, 7th floor, Chicago, Illinois 60603, Attention: Corporate Trust Services, WOART 2017-A, Telecopy: (866) 807-8670, or at such other address or electronic mail address as the Indenture Trustee may designate from time to time by notice to the Noteholders and the Issuing Entity, or the principal corporate trust office of any successor Indenture Trustee at the address or electronic mail address designated by such successor Indenture Trustee by notice to the Noteholders and the Issuing Entity; and
(b) with respect to the Owner Trustee, the corporate trust office of the Owner Trustee located at Wells Fargo Delaware Trust Company, N.A., 919 N. Market Street, Suite 1600, 7th Floor, Wilmington, Delaware 19801, Attention: Corporate Trust Services, Fax: (302) 575-2006; or at such other address or electronic mail address as the Owner Trustee may designate by notice to the Certificateholders and the Depositor, or the principal corporate trust office of any successor Owner Trustee at the address or electronic mail address designated by such successor Owner Trustee by notice to the Certificateholders and the Depositor.
“Credit Risk Retention Rules” means risk retention regulations in 17 C.F.R. Part 246 as such regulation may be amended from time to time and subject to such clarification and interpretation as have been provided by the Commission in an adopting release or by the staff of the Commission, or as may be provided in writing by the Commission or its staff from time to time.
“Cutoff Date” means the close of business on March 9, 2017.
“Dealer” means the dealer who sold a Financed Vehicle and who originated and assigned the related Receivable to World Omni under an existing agreement between such dealer and World Omni.
App. A-7 |
“Default” means any occurrence that is, or with notice or the lapse of time or both would become, an Event of Default.
“Defaulted Receivable” means a Receivable as to which (a) more than $40 of a scheduled payment is 120 or more days past due in accordance with its terms, (b) the Servicer has either repossessed and liquidated the related Financed Vehicle or repossessed and held the related Financed Vehicle in its repossession inventory for 45 days, whichever occurs first, or (c) the Servicer has, in accordance with its customary servicing procedures, determined that eventual payment in full is unlikely and has charged off the remaining Principal Balance. The Principal Balance of any Receivable that becomes a Defaulted Receivable will be deemed to be zero as of the date it becomes a Defaulted Receivable.
“Definitive Notes” has the meaning specified in Section 2.11 of the Indenture.
“Delinquency Percentage” means, for each Payment Date and the related Collection Period, the ratio (expressed as a percentage) of (i) the aggregate Principal Balance of all Delinquent Receivables held by the Issuing Entity that are more than 60 days delinquent as of the last day of calendar month immediately preceding such Payment Date to (ii) the aggregate Principal Balance of the Receivables as of the last day of the related Collection Period after giving effect to all payments of principal received from obligors and Purchase Amounts to be remitted by the Servicer or the Depositor, as the case may be, and after reduction to zero of the aggregate outstanding Principal Balance of any Receivable that became a Defaulted Receivable during the related Collection Period.
“Delinquency Trigger” means 6.50%.
“Delinquent Receivable” means a Receivable as to which more than $40 of a scheduled payment is past due, including a Receivable with a bankrupt Obligor but excluding a Defaulted Receivable.
“Delivery” when used with respect to Trust Account Property means:
(a) with respect to bankers’ acceptances, commercial paper, negotiable certificates of deposit and other obligations that constitute “instruments” within the meaning of Section 9-102(a)(47) of the UCC and are susceptible of physical delivery, transfer thereof to the Indenture Trustee or its nominee or custodian by physical delivery to the Indenture Trustee or its nominee or custodian endorsed to, or registered in the name of, the Indenture Trustee or its nominee or custodian or endorsed in blank, and, with respect to a certificated security (as defined in Section 8-102 of the UCC) transfer thereof (i) by delivery of such certificated security endorsed to, or registered in the name of, the Indenture Trustee or its nominee or custodian or endorsed in blank to a financial intermediary (as defined in Section 8-313 of the UCC) and the making by such financial intermediary of entries on its books and records identifying such certificated securities as belonging to the Indenture Trustee or its nominee or custodian and the sending by such financial intermediary of a confirmation of the purchase of such certificated security by the Indenture Trustee or its nominee or custodian, or (ii) by delivery thereof to a “clearing corporation” (as defined in Section 8-102(3) of the UCC) and the making by such clearing corporation of appropriate entries on its books reducing the appropriate securities account of the transferor and increasing the appropriate securities account of a financial intermediary by the amount of such certificated security, the identification by the clearing corporation of the certificated securities for the sole and exclusive account of the financial intermediary, the maintenance of such certificated securities by such clearing corporation or a “custodian bank” (as defined in Section 8-102(4) of the UCC) or the nominee of either subject to the clearing corporation’s exclusive control, the sending of a confirmation by the financial intermediary of the purchase by the Indenture Trustee or its nominee or custodian of such securities and the making by such financial intermediary of entries on its books and records identifying such certificated securities as belonging to the Indenture Trustee or its nominee or custodian (all of the foregoing, “Physical Property”), and, in any event, any such Physical Property in registered form shall be in the name of the Indenture Trustee or its nominee or custodian; and such additional or alternative procedures as may hereafter become appropriate to effect the complete transfer of ownership of any such Trust Account Property (as defined herein) to the Indenture Trustee or its nominee or custodian, consistent with changes in applicable law or regulations or the interpretation thereof;
App. A-8 |
(b) with respect to any securities issued by the U.S. Treasury, the Federal Home Loan Mortgage Corporation or by the Federal National Mortgage Association that are book-entry securities held through the Federal Reserve System pursuant to Federal book-entry regulations, the following procedures, all in accordance with applicable law, including applicable Federal regulations and Articles 8 and 9 of the UCC: book-entry registration of such Trust Account Property to an appropriate book-entry account maintained with a Federal Reserve Bank by a financial intermediary which is also a “depository” pursuant to applicable Federal regulations and issuance by such financial intermediary of a deposit advice or other written confirmation of such book-entry registration to the Indenture Trustee or its nominee or custodian of the purchase by the Indenture Trustee or its nominee or custodian of such book-entry securities; the identification by the Federal Reserve Bank of such book-entry securities on its record being credited to the financial intermediary’s Participant’s securities account; the making by such financial intermediary of entries in its books and records identifying such book-entry security held through the Federal Reserve System pursuant to Federal book-entry regulations as being credited to the Indenture Trustee’s securities account or custodian’s securities account and indicating that such custodian holds such Trust Account Property solely as agent for the Indenture Trustee or its nominee or custodian; and such additional or alternative procedures as may hereafter become appropriate to effect complete transfer of ownership of any such Trust Account Property to the Indenture Trustee or its nominee or custodian, consistent with changes in applicable law or regulations or the interpretation thereof; and
(c) with respect to any item of Trust Account Property that is an uncertificated security under Article 8 of the UCC and that is not governed by clause (b) above, registration on the books and records of the issuer thereof in the name of the financial intermediary, the sending of a confirmation by the financial intermediary of the purchase by the Indenture Trustee or its nominee or custodian of such uncertificated security, the making by such financial intermediary of entries on its books and records identifying such uncertificated certificates as belonging to the Indenture Trustee or its nominee or custodian.
App. A-9 |
“Depositor” means World Omni Auto Receivables LLC in its capacity as Depositor under certain of the Basic Documents.
“Eligible Deposit Account” means either (a) a segregated account with an Eligible Institution or (b) a segregated trust account with the corporate trust department of a depository institution organized under the laws of the United States of America or any one of the states thereof or the District of 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 shall have a credit rating of BBB or better by S&P Global Ratings and of each Rating Agency (if rated by Fitch) in one of its generic rating categories that signifies investment grade.
“Eligible Institution” means
(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 A or better by Fitch, AA or better by S&P Global Ratings, or such other rating that is acceptable to each Rating Agency or (B) a certificate of deposit rating of F1 by Fitch, A-1+ by S&P Global Ratings, or such other rating that is acceptable to each Rating Agency and (ii) whose deposits are insured by the FDIC.
“Eligible Investments” shall mean any of the following in each case with a required maturity date as set forth in Section 5.01(b) of the Sale and Servicing Agreement:
(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, Fannie Mae or any State then rated with the highest available credit rating of Fitch (if rated by Fitch) and S&P Global Ratings, or 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) money market deposit accounts, certificates of deposit, demand or time deposits, savings deposits, bankers acceptances, or federal funds, in each case as defined in Regulation D of the Board of Governors of the Federal Reserve System and issued by or sold by or offered by, any domestic office of any commercial bank or any depository institution or trust company (including the Indenture Trustee or the Owner Trustee or their successors) incorporated or organized under the laws of the United States or any State thereof which has a combined capital and surplus and undivided profits of not less than $250,000,000 and the deposits of which are insured by the FDIC to the full extent legally permitted;
App. A-10 |
(c) repurchase obligations held by 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 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 Fitch and S&P Global Ratings, or the 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 the 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 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) interest in any open-end or closed-end management type investment company or investment trust (i) registered under the Investment Company Act of 1940, as amended, 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 (for which the Rating Agency Condition has been satisfied) as collateral for securities having ratings equivalent to the ratings of the Notes;
App. A-11 |
(f) guaranteed reinvestment agreements issued by any bank, insurance company or other corporation for which the 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 Fitch and S&P Global Ratings;
(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; provided, however, that the fund shall be rated with the highest available credit rating of Fitch (if rated by Fitch or, if not rated by Fitch, an equivalent rating by a nationally recognized statistical rating organization other than S&P and Fitch) and S&P Global Ratings, and redemptions shall be permitted on a daily or next business day basis;
(j) auction rate securities issued with a rate reset mechanism and a maximum term of 30 days; provided that investment will be limited to those issuers having the AAA credit rating of Fitch and S&P Global Ratings; and
(k) such other investments for which the Rating Agency Condition has been satisfied.
Notwithstanding anything to the contrary contained in the foregoing definition:
(a) no Eligible Investment may be repurchased at a premium;
(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;
App. A-12 |
(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 S&P Global Ratings shall be Eligible Investments, so long as the aggregate amount of such investments does not exceed 10% of the Outstanding Amount of the Notes.
“ERISA” shall have the meaning assigned thereto in Section 3.04 of the Trust Agreement.
“Event of Default” has the meaning specified in Section 5.01 of the Indenture.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Executive Officer” means, with respect to any company, the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, President, any Executive Vice President, Vice President, Secretary, Assistant Secretary, Treasurer or Assistant Treasurer of such company; and with respect to any partnership, any general partner thereof.
“Expenses” shall have the meaning assigned to such term in Section 8.02 of the Trust Agreement.
“FATCA” means Sections 1471 through 1474 of the Code.
“FATCA Withholding Tax” means any withholding or deduction pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations or agreements (including any intergovernmental agreements) thereunder or official interpretations thereof.
“FDIC” means the Federal Deposit Insurance Corporation.
“Final Prospectus” shall mean the prospectus dated April 12, 2017, relating to the Notes.
App. A-13 |
“Final Scheduled Maturity Date” means in the case of a Receivable, July 28, 2023.
“Final Scheduled Payment Date” means (i) with respect to the Class A-1 Notes, the Class A-1 Final Scheduled Payment Date, (ii) with respect to the Class A-2 Notes, the Class A-2 Final Scheduled Payment Date, (iii) with respect to the Class A-3 Notes, the Class A-3 Final Scheduled Payment Date, (iv) with respect to the Class A-4 Notes, the Class A-4 Final Scheduled Payment Date, and (v) with respect to the Class B Notes, the Class B Final Scheduled Payment Date.
“Financed Vehicle” means an automobile or light-duty truck, together with all accessions thereto, securing an Obligor’s indebtedness under the respective Receivable.
“Financial Asset” has the meaning given such term in Revised Article 8. As used herein, the Financial Asset “related to” a security entitlement is the Financial Asset in which the entitlement holder (as defined in the New York UCC) holding such Security Entitlement has the rights and property interest specified in the New York UCC.
“Fitch” means Fitch Ratings, Inc. or its successor.
“Grant” means mortgage, pledge, bargain, warrant, alienate, remise, release, convey, assign, transfer, create, and grant a lien upon and a security interest in and a right of set-off against, deposit, set over and confirm pursuant to the Indenture. A Grant of the Collateral or of any other agreement or instrument shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including the immediate and continuing right to claim for, collect, receive and give receipt for principal and interest payments in respect of the Collateral and all other monies payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring Proceedings in the name of the granting party or otherwise, and generally to do and receive anything that the granting party is or may be entitled to do or receive thereunder or with respect thereto.
“Holder” or “Noteholder” means the Person in whose name a Note is registered on the Note Register.
“Indemnified Parties” shall have the meaning assigned to such term in Section 8.02 of the Trust Agreement.
“Indenture” shall mean the Indenture, dated as of the Closing Date, between the Trust and the Indenture Trustee, as the same may be amended and supplemented from time to time.
“Indenture Trustee” means U.S. Bank National Association, not in its individual capacity but solely as Indenture Trustee under the Indenture, or any successor Indenture Trustee under the Indenture.
“Independent” means, when used with respect to any specified Person, that the Person (a) is in fact independent of the Issuing Entity, any other obligor on the Notes, the Depositor 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 Issuing Entity, any such other obligor, the Depositor or any Affiliate of any of the foregoing Persons and (c) is not connected with the Issuing Entity, any such other obligor, the Depositor or any Affiliate of any of the foregoing Persons as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
App. A-14 |
“Independent Certificate” means 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 11.01 of the Indenture, made by an Independent appraiser or other expert appointed by an Issuing Entity 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” in the Indenture and that the signer is Independent within the meaning thereof.
“Initial Aggregate Starting Principal Balance” means $1,371,460,827.67.
“Initial Trust Agreement” shall have the meaning assigned to such term in Section 2.12 of the Trust Agreement.
“Insolvency Event” means, with respect to a specified Person, (a) the filing of a decree or order for relief by a court having jurisdiction in the premises in respect of such Person or any substantial part of its property in an involuntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or ordering the winding-up or liquidation of such Person’s affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (b) the commencement by such Person of a voluntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the making by such Person of any general assignment for the benefit of creditors, or the failure by such Person generally to pay its debts as such debts become due, or the taking of action by such Person in furtherance of any of the foregoing.
“Interest Accrual Period” means, with respect to any Payment Date, (i) for the Class A-1 Notes and the Class A-2b Notes, the period from and including the previous Payment Date (or, in the case of the initial Payment Date, the Closing Date) to, but excluding, the current Payment Date and (ii) for the Class A-2a Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes, the period from and including the 15th day of the preceding calendar month (or, in the case of the initial Payment Date, the Closing Date) to, but excluding, the 15th day of the current calendar month.
“Interest Rate” means the Class A-1 Interest Rate, the Class A-2a Interest Rate, the Class A-2b Interest Rate, the Class A-3 Interest Rate, the Class A-4 Interest Rate or the Class B Interest Rate, as applicable.
App. A-15 |
“Investment Earnings” means, with respect to any Payment Date, the investment earnings (net of losses and investment expenses) on amounts on deposit in the Trust Accounts to be deposited into the Collection Account on such Payment Date pursuant to Section 5.01(b) of the Sale and Servicing Agreement.
“Investment Letter” has the meaning assigned in Section 2.04(a) of the Indenture.
“Issuing Entity” means World Omni Auto Receivables Trust 2017-A until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained in the Indenture and required by the TIA, each other obligor on the Notes.
“Issuing Entity Order” or “Issuing Entity Request” means a written order or request signed in the name of the Issuing Entity by any one of its Authorized Officers and delivered to the Indenture Trustee.
“LIBOR Determination Date” means, for any Payment Date, the date that is two London Business Days prior to the Payment Date immediately preceding such Payment Date or, in the case of the initial Payment Date, two London Business Days prior to the Closing Date.
“London Business Day” means any day on which dealing in deposits in United States Dollars are transacted in the London bank market.
“Lien” means a security interest, lien, charge, pledge, equity or encumbrance of any kind, other than tax liens, mechanics’ liens and any liens that attach to the respective Receivable by operation of law as a result of any act or omission by the related Obligor.
“Note Depository Agreement” means the letter of representations, dated as of the Closing Date, between the Issuing Entity and The Depository Trust Company, as the initial Clearing Agency.
“Note Distribution Account” means the account designated as such, established and maintained pursuant to Section 5.01(a)(ii) of the Sale and Servicing Agreement.
“Note Owner” means, with respect to a Book-Entry Note, the Person who is the beneficial owner of such Book-Entry Note, as reflected on the books of the Clearing Agency or on the books of a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance with the rules of such Clearing Agency).
“Note Pool Factor” means, with respect to each Class of Notes as of the close of business on the last day of a Collection Period, a seven-digit decimal figure equal to the Outstanding Amount of such Class of Notes (after giving effect to any reductions thereof to be made on the immediately following Payment Date) divided by the original Outstanding Amount of such Class of Notes. The Note Pool Factor will be 1.0000000 as of the Closing Date; thereafter, the Note Pool Factor will decline to reflect reductions in the Outstanding Amount of such Class of Notes.
“Note Register” and “Note Registrar” have the respective meanings specified in Section 2.05 of the Indenture.
App. A-16 |
“Noteholder FATCA Information” means, with respect to any Noteholder or Note Owner, information sufficient to eliminate the imposition of, or determine the amount of, U.S. withholding tax under FATCA.
“Noteholder Tax Identification Information” means, with respect to any Noteholder or Note Owner, properly completed and signed tax certifications (generally, in the case of U.S. Federal Income Tax, IRS Form W-9 (or applicable successor form) in the case of a person that is a “United States Person” within the meaning of Section 7701(a)(30) of the Code or the appropriate IRS Form W-8 (or applicable successor form) in the case of a person that is not a “United States Person” within the meaning of Section 7701(a)(30) of the Code).
“Noteholders” shall mean the holders of the Notes.
“Noteholders’ First Priority Principal Distributable Amount” means, with respect to any Payment Date, an amount equal to the excess, if any, of (a) the Outstanding Amount of the Class A Notes as of the day immediately preceding such Payment Date over (b) the Pool Balance for that Payment Date.
“Noteholders’ Interest Distributable Amount” means, with respect to any Payment Date, the sum of the Class A Noteholders’ Interest Distributable Amount for such Payment Date and the Class B Noteholders’ Interest Distributable Amount for such Payment Date.
“Noteholders’ Principal Distributable Amount” means, with respect to any Payment Date, the excess, if any, of (a) the sum of the Outstanding Amount of the Notes as of the day immediately preceding that Payment Date over (b) the Pool Balance for that Payment Date minus the Overcollateralization Target Amount for that Payment Date, provided that on the Final Scheduled Payment Date of any Class of Notes, the Noteholders’ Principal Distributable Amount shall not be less than the amount necessary to reduce the aggregate Principal Balance of such Class of Notes to zero.
“Noteholders’ Second Priority Principal Distributable Amount” means, with respect to any Payment Date, an amount equal to the excess, if any, of (a) the Outstanding Amount of the Notes as of the day immediately preceding such Payment Date over (b) the Pool Balance for that Payment Date less (c) any amounts allocated to the Noteholders’ First Priority Principal Distributable Amount.
“Notes” means Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class B Notes.
“Obligor” on a Receivable means the purchaser or co-purchasers of the Financed Vehicle and any other Person who owes payments under the Receivable.
“Officer’s Certificate” means in the case of the Issuing Entity, a certificate signed by any Authorized Officer of the Issuing Entity, under the circumstances described in, and otherwise complying with, the applicable requirements of Section 11.01 of the Indenture, and delivered to the Indenture Trustee (unless otherwise specified, any reference in the Indenture to an Officer’s Certificate shall be to an Officer’s Certificate of any Authorized Officer of the Issuing Entity), and in the case of World Omni, the Depositor or the Servicer, a certificate signed by the president, a vice president, a treasurer, assistant treasurer, secretary or assistant secretary of World Omni, the Depositor or the Servicer, as appropriate.
App. A-17 |
“One-Month LIBOR” means, for any Payment Date, the rate per annum of deposits in United States dollars having a one month maturity that appears on Bloomberg Screen US0001M Index Page (or the successor page or screen as may replace that page or screen or that service) at approximately 11:00 a.m., London time on the related LIBOR Determination Date. Notwithstanding the foregoing, in the event that no rate for one-month United States dollar deposits appears on Bloomberg Screen US0001M Index Page (or the successor page or screen as may replace that page or screen or that service) on the applicable LIBOR Determination Date, then One-Month LIBOR shall be the arithmetic mean (rounded upwards to the nearest one-sixteenth of 1%) of the rates at which one-month United States dollar deposits are offered to prime banks in the London interbank market by four major banks in that market selected by the Servicer as of the LIBOR Determination Date and time specified above. If fewer than two quotations are provided by such banks, then One-Month LIBOR shall be the arithmetic mean (rounded upwards as above) of the rates at which one-month loans in United States dollars are offered to leading European banks by three major banks in New York City selected by the Servicer as of 11:00 a.m. New York City time on the applicable LIBOR Determination Date. If no such quotation can be obtained, One-Month LIBOR for such Payment Date will be One-Month LIBOR that was determined with respect to the prior Payment Date.
“Opinion of Counsel” means one or more written opinions of counsel who may, except as otherwise expressly provided in the Indenture, be an employee of or counsel to the Issuing Entity and who shall be satisfactory to the addressees of such opinion, and which opinion or opinions if addressed to the Indenture Trustee, shall comply with any applicable requirements of Section 11.01 of the Indenture and shall be in form and substance satisfactory to the Indenture Trustee.
“Outstanding” means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture except:
(a) Notes theretofore cancelled by the Note Registrar or delivered to the Note Registrar 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 or waived pursuant to this Indenture or provision for such notice or waiver has been made which is satisfactory to the Indenture Trustee); and
(c) Notes in exchange for or in lieu of which other Notes 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 protected purchaser;
provided, that in determining whether the Holders of the requisite Outstanding Amount of the Controlling Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or under any Basic Document, Notes owned by the Issuing Entity, any other obligor upon the Notes, the Depositor 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 a Responsible Officer of the Indenture Trustee has actual knowledge are 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 the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Issuing Entity, any other obligor upon the Notes, the Depositor or any Affiliate of any of the foregoing Persons.
App. A-18 |
“Outstanding Amount” means the aggregate principal amount of all Notes, or Class of Notes, as applicable, Outstanding at the date of determination.
“Overcollateralization Target Amount” means, with respect to any Payment Date, an amount equal to 4.50% of the aggregate Principal Balance of the Receivables as of the end of the related Collection Period less the Yield Supplement Overcollateralization Amount of those Receivables as of the last day of the related Collection Period, but not less than the result of 1.00% of the Aggregate Starting Principal Balance of the Receivables minus the Yield Supplement Overcollateralization Amount as of the Cutoff 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 Sale and Servicing Agreement, all funds on deposit from time to time in the Trust Accounts and all other property of the Trust from time to time, including any rights of the Trust pursuant to the Sale and Servicing Agreement and the Administration Agreement.
“Owner Trustee” shall mean Wells Fargo Delaware Trust Company, N.A., not in its individual capacity but solely as owner trustee under the Trust Agreement, and any successor Owner Trustee thereunder.
“Paying Agent” means 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 Issuing Entity to make payments to and distributions from the Collection Account and the Note Distribution Account, including payments of principal of or interest on the Notes on behalf of the Issuing Entity.
“Payment Date” means, with respect to each Collection Period, the fifteenth day of the following month or, if such day is not a Business Day, the immediately following Business Day. The initial Payment Date will be May 15, 2017.
“Payment Determination Date” means, with respect to any Payment Date, one (1) Business Day immediately preceding such Payment Date.
“Payment Extension Program” means a program where one month’s payment is deferred in return for the payment of an amount calculated generally at the APR of the contract for the month in which such payment is deferred (unless such amount is waived by the Servicer in accordance with the Servicer’s customary servicing procedures).
App. A-19 |
“Percentage Interest” shall mean, with respect to each Trust Certificate, the percentage beneficial interest in the Trust represented by such Trust Certificate.
“Person” means any individual, corporation, limited liability company, estate, partnership, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization or government or any agency or political subdivision thereof.
“Physical Property” has the meaning assigned to such term in the definition of “Delivery” above.
“Plan” shall have the meaning assigned to such term in Section 3.04 of the Trust Agreement.
“Pool Balance” means, as of any Payment Date, the aggregate Principal Balance of the Receivables as of the last day of the related Collection Period less the Yield Supplement Overcollateralization Amount as of such day of the related Collection Period after giving effect to all payments of principal received from obligors and Purchase Amounts to be remitted by the Servicer or the Depositor, as the case may be, and after reduction to zero of the aggregate outstanding Principal Balance of any Receivable that became a Defaulted Receivable during the related Collection Period.
“Predecessor Note” means, 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 2.06 of the Indenture in lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.
“Principal Balance” of a Receivable, as of the close of business on the last day of a Collection Period, means the Amount Financed minus the sum of (i) the portion of all payments made by or on behalf of the related Obligor on or prior to such day and allocable to principal using the Simple Interest Method; (ii) refunds of any warranty or insurance financed on the original Contract; and (iii) any payment of the Purchase Amount with respect to the Receivable allocable to principal.
“Proceeding” means any suit in equity, action at law or other judicial or administrative proceeding.
“Purchase Amount” means, with respect to a Receivable, the amount, as of the close of business on the last day of the Collection Period as of which that Receivable is purchased, required to prepay in full that Receivable under the terms thereof including accrued and unpaid interest to such last day.
“Purchase Date” has the meaning assigned to such term in Section 2.01 of the Receivables Purchase Agreement.
“Purchase Price” has the meaning assigned to such term in Section 2.02 of the Receivables Purchase Agreement.
App. A-20 |
“Purchased Receivable” means a Receivable purchased as of the close of business on the last day of a Collection Period by the Servicer pursuant to Section 4.07 or by World Omni pursuant to Section 3.02(b) of the Sale and Servicing Agreement.
“Rating Agencies” means, for so long as such organization is rating a Class of Notes, Fitch and S&P Global Ratings or, if none of such organizations or successors is any longer in existence, a nationally recognized statistical rating organization or other comparable Person designated by the Depositor, notice of which designation shall be given to the Indenture Trustee, the Owner Trustee and the Servicer.
“Rating Agency Condition” means, with respect to any action, that each Rating Agency then rating a Class of Notes shall have received 5 Business Days’ (or such shorter period as shall be acceptable to each Rating Agency) prior written notice and shall not have notified the Depositor that such action will result in a downgrade of the then current rating on any Notes.
“Receivable” means any Contract listed on the Schedule of Receivables attached to an Assignment (which Schedule may be in the form of microfiche), as such Schedule may be amended from time to time.
“Receivable Files” means the documents specified in Section 3.03 of the Sale and Servicing Agreement.
“Receivables Purchase Agreement” shall mean the Receivables Purchase Agreement, dated as of the Closing Date, between World Omni, as depositor and World Omni Auto Receivables LLC, as purchaser, as amended from time to time.
“Record Date” means, with respect to a Payment Date or Redemption Date, and (i) any Book-Entry Notes, the close of business on the Business Day immediately preceding such Payment Date or Redemption Date or (ii) any Definitive Notes, the Payment Date in the preceding month.
“Recoveries” means, with respect to any Defaulted Receivable and any Collection Period, monies collected in respect thereof, from whatever source, net of any expenses of the Servicer in connection with such Receivable for which the Servicer has not been previously reimbursed and any amounts required by law to be remitted to the Obligor.
“Redemption Date” means, in the case of a redemption of the Notes pursuant to Section 10.01 of the Indenture, the Payment Date specified by the Depositor or the Issuing Entity pursuant to Section 10.01 of the Indenture.
“Redemption Price” means, in connection with a redemption of the Notes pursuant to Section 10.01 of the Indenture, with respect to any Note, an amount equal to the unpaid principal amount of such Note plus accrued and unpaid interest thereon to but excluding the Redemption Date.
“Registered Holder” means the Person in whose name a Note is registered on the Note Register on the applicable Record Date.
App. A-21 |
“Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such may be amended from time to time and subject to such clarification and interpretation as have been provided by the Commission in the adopting releases (Asset-Backed Securities, Securities Act Release No. 33-8518. 70 Fed. Reg. 1,506, 1,531 (January 7, 2005) and Asset-Backed Securities Disclosure and Registration, Securities Act Release No. 33-9638, 79 Fed. Reg. 57, 184 (September 24, 2014)) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.
“Reporting Officer” means, with respect to the Owner Trustee, any officer, employee or other person within the Corporate Trust Office of the Owner Trustee having direct responsibility for the administration of the Trust Agreement.
“Reporting Subcontractor” shall mean with respect to any Person, any Subcontractor for such Person that is “participating in the servicing function” within the meaning of Item 1122 of Regulation AB. References to a Reporting Subcontractor shall refer only to the Subcontractor of such Person and shall not refer to Subcontractors generally.
“Repurchase Event” shall have the meaning specified in Section 6.02 of the Receivables Purchase Agreement.
“Repurchase Request” has the meaning specified in Section 3.02(c)(i) of the Sale and Servicing Agreement.
“Repurchase Rules and Regulations” shall have the meaning specified in Section 6.14 of the Indenture.
“Requesting Party” has the meaning specified in Section 3.02(c)(i) of the Sale and Servicing Agreement.
“Required Rate” means (i) with respect to the Cutoff Date and any Payment Date on or prior to the date on which the Outstanding Amount of the Class A-2b Notes is paid in full, 6.05% per annum, and (ii) with respect to any Payment Date after the date on which the Outstanding Amount of the Class A-2b Notes is paid in full, 5.85%, or, in each case such other rate as shall be approved by the Rating Agencies.
“Required Rating” means a rating on commercial paper or other short term unsecured debt obligations of F1 by Fitch so long as Fitch is a Rating Agency and A-1+ by S&P Global Ratings so long as S&P Global Ratings 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 Fitch and S&P Global Ratings.
“Required Reserve Amount” means, with respect to any Payment Date, the lesser of (a) 0.25% of the difference of the Aggregate Starting Principal Balance less the Yield Supplement Overcollateralization Amount as of the Cutoff Date of all Receivables transferred to the Trust and (b) the Outstanding Amount of the Notes.
“Reserve Account” means the account designated as such, established and maintained pursuant to Section 5.01(a)(iii) and Section 5.07 of the Sale and Servicing Agreement.
App. A-22 |
“Reserve Account Initial Deposit” means cash or Eligible Investments having a value of $3,213,436.41.
“Responsible Officer” means, with respect to the Indenture Trustee, any officer within the Corporate Trust Office of the Indenture Trustee, including any vice president, assistant vice president, assistant secretary, senior associate, associate, trust officer or any other officer, employee or other person of the Indenture Trustee customarily performing functions similar to those performed by any of the above designated officers and, with respect to each, having direct responsibility for the administration of the Indenture 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.
“Retained Notes” means [RESERVED].
“Review” means a review by the Asset Representations Reviewer as specified in the Asset Representations Review Agreement of all Delinquent Receivables that have been Delinquent Receivables for 60 days or more as of the last day of the preceding Collection Period to determine whether such Delinquent Receivables satisfy the representations and warranties set forth in Section 3.01(a) of the Sale and Servicing Agreement, each as of the date as specified in Section 3.01(a) of the Sale and Servicing Agreement..
“Review Notice” means the notice from the Indenture Trustee to the Asset Representations Reviewer, the Issuing Entity and the Servicer pursuant to Section 7.05(c) of the Indenture notifying the Asset Representations Reviewer that the Noteholders have requested a Review.
“Review Receivable” has the meaning designated in Section 1.01 of the Asset Representations Review Agreement.
“Review Report” has the meaning designated in Section 3.04 of the Asset Representations Review Agreement.
“RPA Assignment” has the meaning designated in Section 2.01 of the Receivables Purchase Agreement.
“Sale and Servicing Agreement” means the Sale and Servicing Agreement, dated as of the Closing Date, among the Issuing Entity, the Depositor and World Omni, as Servicer, as amended from time to time.
“Schedule of Receivables” shall mean the schedule attached to the RPA Assignment or the SSA Assignment specifying the Receivables being transferred, as such Schedule may be amended from time to time.
“Secretary of State” shall mean the Secretary of State of the State of Delaware.
“Securities Act” means the Securities Act of 1933, as amended.
App. A-23 |
“Securitization Transaction” means any transaction effected after the Closing Date involving an issuance of notes pursuant to the Indenture, whether publicly offered or privately placed, rated or unrated.
“Servicer” means World Omni, in its capacity as servicer under the Sale and Servicing Agreement, and any Successor Servicer thereunder.
“Servicer Default” means an event specified in Section 8.01 of the Sale and Servicing Agreement.
“Servicer’s Certificate” means a certificate of the Servicer delivered pursuant to Section 4.09 of the Sale and Servicing Agreement.
“Servicing Criteria” means the “servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be amended from time to time.
“Servicing Fee” means the fee payable to the Servicer for services rendered during each Collection Period, determined pursuant to Section 4.08 of the Sale and Servicing Agreement.
“Servicing Fee Rate” means 1% per annum.
“Similar Law” has the meaning assigned to such term in Section 3.04 of the Trust Agreement.
“Simple Interest Method” means the method of allocating a fixed level payment to principal and interest, pursuant to which the portion of such payment that is allocated to interest is equal to the product of the fixed rate of interest multiplied by the unpaid principal balance multiplied by the period of time elapsed since the preceding payment of interest was made and the remainder of such payment is allocable to principal.
“Simple Interest Receivable” means any Receivable under which the portion of a payment allocable to interest and the portion allocable to principal is determined in accordance with the Simple Interest Method.
“Sponsor” means World Omni Financial Corp., a Florida corporation, or its successors.
“SSA Assignment” has the meaning assigned in Section 2.01 of the Sale and Servicing Agreement.
“S&P Global Ratings” means S&P Global Ratings, a division of S&P Global, or its successor.
“Starting Principal Balance” means with respect to a Receivable, the aggregate principal amount advanced under such Receivable toward the purchase price of the Financed Vehicle or Financed Vehicles, including insurance premiums, service and warranty contracts, federal excise and sales taxes and other items customarily financed as part of a Receivable and related costs, less payments received from the Obligor prior to the Cutoff Date with respect to such Receivable allocable to principal.
App. A-24 |
“State” means any one of the 50 States of the United States of America or the District of Columbia.
“Statutory Trust Act” shall mean Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code § 3801 et seq., as the same may be amended from time to time.
“Subcontractor” shall mean any vendor, subcontractor or other Person that is not responsible for the overall servicing (as “servicing” is commonly understood by participants in the mortgage-backed securities market) of Receivables but performs one or more discrete functions identified in Item 1122(d) of Regulation AB with respect to the Receivables under the direction or authority of the Servicer or the Indenture Trustee.
“Successor Servicer” has the meaning specified in Section 3.07(e) of the Indenture.
“Supplemental Servicing Fees” means late fees, any prepayment charges, phone pay fees and other administrative fees or similar charges allowed by applicable law with respect to the Receivables collected from Obligors during the related Collection Period.
“Test Fail” has the meaning assigned in Section 3.03(a) of the Asset Representations Review Agreement.
“Transferor Certificate” has the meaning assigned in Section 2.04(a) of the Indenture.
“Treasury Regulations” shall mean regulations, including proposed or temporary Regulations, promulgated under the Code. References herein to specific provisions of proposed or temporary regulations shall include analogous provisions of final Treasury Regulations or other successor Treasury Regulations.
“Trust” means World Omni Auto Receivables Trust 2017-A, a Delaware statutory trust.
“Trust Account Property” means the Trust Accounts, all amounts and investments held from time to time in any Trust Account (whether in the form of deposit accounts, Physical Property, book-entry securities, uncertificated securities or otherwise), including the Reserve Account, and all proceeds of the foregoing.
“Trust Accounts” has the meaning assigned thereto in Section 5.01 of the Sale and Servicing Agreement.
“Trust Agreement” means the Trust Agreement, dated as of the Closing Date, between the Depositor and the Owner Trustee, as the same may be amended and supplemented from time to time; such agreement being the amended and restated Trust Agreement contemplated by the Initial Trust Agreement.
“Trust Certificate” shall mean a certificate evidencing the beneficial interest of a Person in the trust established by the Trust Agreement and substantially in the form attached as Exhibit A to such Trust Agreement.
App. A-25 |
“Trust Estate” means all money, instruments, rights and other property that are subject or intended to be subject to the lien and security interest of this Indenture for the benefit of the Noteholders (including, without limitation, all property and interests Granted to the Indenture Trustee), including all proceeds thereof.
“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939 as in force as of the Closing Date, unless otherwise specifically provided.
“Trust Officer” means, in the case of the Indenture Trustee, any Officer within the Corporate Trust Office of the Indenture Trustee, including any vice president, assistant vice president, assistant secretary, senior associate, associate, trust officer 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 and, with respect to the Owner Trustee, any officer within the Corporate Trust Office of the Owner Trustee with direct responsibility for the administration of the Trust Agreement and the Basic Documents on behalf of the Owner Trustee.
“Trustee Bank” means Wells Fargo Delaware Trust Company, N.A., in its individual capacity, each bank appointed as successor Owner Trustee under the Trust Agreement in its individual capacity and each bank appointed as co-trustee under and to the extent provided in the Trust Agreement in its individual capacity.
“UCC” means, unless the context otherwise requires, the Uniform Commercial Code, as in effect in the relevant jurisdiction, as amended from time to time.
“U.S. Person” means:
(a) a citizen or resident of the United States for U.S. federal income tax purposes;
(b) an entity treated as a corporation or partnership for U.S. federal income tax purposes, except to the extent provided in applicable U.S. Department of Treasury regulations, created or organized in or under the laws of the United States, any state or the District of Columbia, including an entity treated as a corporation or partnership for U.S. federal income tax purposes;
(c) an estate the income of which is subject to U.S. federal income taxation regardless of its source;
(d) an entity treated as a trust for U.S. federal income tax purposes if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Persons have the authority to control all substantial decisions of such trust; or
(e) to the extent provided in applicable U.S. Department of Treasury regulations, certain trusts in existence on August 20, 1996, which are eligible to elect to be treated as U.S. Persons.
“WOAR” means World Omni Auto Receivables LLC, a Delaware limited liability company, or its successors.
App. A-26 |
“World Omni” means World Omni Financial Corp., a Florida corporation, or its successors.
“Yield Supplement Overcollateralization Amount” means, with respect to any calendar month and the related Payment Date, or with respect to the Cutoff Date, the aggregate amount by which the Principal Balance as of the last day of such calendar month or the Cutoff Date of each of the related Receivables with an APR as stated in the related Contract of less than the Required Rate, other than a Defaulted Receivable, exceeds the present value, calculated by using a discount rate equal to the Required Rate, of each scheduled payment of each such Receivables assuming such scheduled payment is made on the last day of each month and each month has 30 days.
App. A-27 |
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) Use of “related” as used in this Appendix and the Basic Documents, with respect to any Payment Date, the “related Payment Determination Date,” the “related Collection Period,” and the “related Record Date” will mean the Payment Determination Date, the Collection Period, and the Record Date, respectively, immediately preceding such Payment Date. With respect to any Purchase Date, the “related Cutoff Date” will mean the Cutoff Date established for the closing of the purchase of Receivables on that Purchase Date.
(D) Use of “outstanding” etc. Whenever the term “outstanding Notes,” “outstanding principal amount” and words of similar import are used in this Appendix or any Basic Document for purposes of determining whether the Noteholders of the requisite outstanding principal 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 Issuing Entity, any other obligor upon the Notes, the Depositor or any Affiliate of any of the foregoing Persons (it being understood that the Owner Trustee in its individual capacity shall not be considered an Affiliate of any of the foregoing) 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 the pledgor’s right so to act with respect to such Notes and that the pledgee is not the Issuing Entity, any other obligor upon the Notes, the Depositor or any Affiliate of any of the foregoing Persons.
(E) 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.
App. A-28 |
(F) 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.
(G) UCC References. References to sections or provisions of Article 9 of the UCC in any of the Basic Documents shall be deemed to be automatically updated to reflect the successor, replacement or functionally equivalent sections or provisions of Revised Article 9, Secured Transactions (2000) at any time in any jurisdiction which has made such revised article effective.
App. A-29 |
APPENDIX B
Additional Representations and Warranties
1. | This Agreement, the Receivables Purchase Agreement and the Indenture create a valid and continuing security interest (as defined in the applicable UCC) in the Receivables in favor of the Indenture Trustee, which security interest is prior to all other Liens, and is enforceable as such as against creditors of and purchasers from World Omni, the Depositor and the Trust, respectively. |
2. | World Omni has taken all steps necessary to perfect its security interest against each Obligor in the property securing the Receivables. |
3. | The Receivables constitute “tangible chattel paper” or “electronic chattel paper” within the meaning of the applicable UCC. |
4. | World Omni owns and has good and marketable title to the Receivables and will transfer the Receivables free and clear of any Lien, claim or encumbrance of any Person. |
5. | World Omni has caused or will have caused, within ten days, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Receivables granted to the Depositor under the Receivables Purchase Agreement, to the Issuing Entity hereunder and to the Indenture Trustee under the Indenture. |
6. | With respect to Receivables that constitute tangible chattel paper, all original executed copies of each Contract that constitute or evidence the Receivable have been delivered to the Servicer for the benefit of the Depositor, the Issuing Entity and the Indenture Trustee. |
7. | With respect to Receivables that constitute electronic chattel paper, only one authoritative copy of each Contract that constitutes or evidences the Receivable exists. Each such authoritative copy (a) is unique, identifiable, and unalterable (other than with the participation of the Depositor, the Issuing Entity and the Indenture Trustee pursuant to the Basic Documents in the case of an addition or change of an identified assignee and other than a revision that is readily identifiable as an authorized or unauthorized revision), and (b) has been communicated to and is maintained by the Servicer or a third party provider acting on behalf of the Servicer. The authoritative copy of the related Contract identifies only World Omni Financial Corp. as the assignee thereof. Each copy of the authoritative copy of the related Contract and any copy of a copy are readily identifiable as copies that are not the authoritative copy. Each Receivable has been established in a manner such that (a) all copies or revisions that add or change an identified assignee of the authoritative copy of each Contract that constitutes or evidences the Receivable must be made with the participation of the Depositor, the Issuing Entity and the Indenture Trustee pursuant to the Basic Documents, and (b) all revisions of the authoritative copy of each contract that constitute or evidence the Receivable must be readily identifiable as an authorized or unauthorized revision. The Servicer is maintaining the authoritative copy of each Contract that constitutes or evidences the Receivables solely on behalf and for the benefit of the Depositor, the Issuing Entity and the Indenture Trustee under the Basic Documents. |
App. B
8. | Other than (a) any security interests which have been released prior to or in connection with the execution of the Basic Documents and (b) the security interests granted to the Depositor, the Issuing Entity, and the Indenture Trustee pursuant to the Basic Documents, none of World Omni, the Depositor or the Issuing Entity has pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Receivables. None of World Omni, the Depositor or the Issuing Entity has authorized the filing of, and is not aware of, any financing statements against World Omni, the Depositor or the Issuing Entity that include a description of collateral covering the Receivables other than any financing statement relating to the security interests granted to the Depositor, the Issuing Entity, and the Indenture Trustee under the Basic Documents or a financing statement that has been terminated with respect to the Receivables. None of World Omni, the Depositor or the Issuing Entity is aware of any judgment or tax lien filings against World Omni, the Depositor or the Issuing Entity. |
9. | None of the Seller, the Depositor or the Issuing Entity or any vaulting agent thereof has communicated an authoritative copy of any Contract that constitutes or evidences the Receivables to any Person other than the Servicer. |
10. | World Omni, as Servicer (in its capacity as custodian), has in its possession all original copies of the Contracts that constitute or evidence the Receivables. The Receivables Files that constitute or evidence the Receivables do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Depositor, the Issuing Entity or the Indenture Trustee. All financing statements filed or to be filed against World Omni, the Depositor or the Issuing Entity in favor of the Depositor, the Issuing Entity or the Indenture Trustee, respectively, in connection herewith describing the Receivables contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Noteholders.” |
App. B-2 |
Exhibit 4.2
INDENTURE
between
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A,
as Issuing Entity
and
U.S. Bank National Association
as Indenture Trustee
Dated as of April 19, 2017
TABLE OF CONTENTS
Page | ||
ARTICLE I | ||
Definitions and Incorporation by Reference | ||
Section 1.01 | Definitions | 2 |
Section 1.02 | Incorporation by Reference of Trust Indenture Act | 2 |
ARTICLE II | ||
The Notes | ||
Section 2.01 | Form | 3 |
Section 2.02 | Execution, Authentication and Delivery | 3 |
Section 2.03 | Temporary Notes | 4 |
Section 2.04 | Transfer Restrictions on Notes | 4 |
Section 2.05 | Registration; Registration of Transfer and Exchange | 7 |
Section 2.06 | Mutilated, Destroyed, Lost or Stolen Notes | 9 |
Section 2.07 | Persons Deemed Owner | 9 |
Section 2.08 | Payment of Principal and Interest; Defaulted Interest | 10 |
Section 2.09 | Cancellation | 11 |
Section 2.10 | Release of Collateral | 11 |
Section 2.11 | Book-Entry Notes | 11 |
Section 2.12 | Notices to Clearing Agency | 12 |
Section 2.13 | Definitive Notes | 12 |
Section 2.14 | Tax Treatment | 13 |
Section 2.15 | CUSIP Numbers | 13 |
ARTICLE III | ||
Covenants | ||
Section 3.01 | Payment of Principal and Interest | 14 |
Section 3.02 | Maintenance of Office or Agency | 14 |
Section 3.03 | Money for Payments to Be Held in Trust | 14 |
Section 3.04 | Existence | 16 |
Section 3.05 | Protection of Trust Estate | 16 |
Section 3.06 | Opinions as to Trust Estate | 17 |
Section 3.07 | Performance of Obligations; Servicing of Receivables | 17 |
Section 3.08 | Negative Covenants | 19 |
Section 3.09 | Annual Statement as to Compliance | 20 |
Section 3.10 | Issuing Entity May Consolidate, etc., Only on Certain Terms | 20 |
Section 3.11 | Successor or Transferee | 22 |
i |
Section 3.12 | No Other Business | 22 |
Section 3.13 | No Borrowing | 22 |
Section 3.14 | Servicer’s Obligations | 22 |
Section 3.15 | Guarantees, Loans, Advances and Other Liabilities | 22 |
Section 3.16 | Capital Expenditures | 23 |
Section 3.17 | Removal of Administrator | 23 |
Section 3.18 | Restricted Payments | 23 |
Section 3.19 | Notice of Events of Default | 23 |
Section 3.20 | Further Instruments and Acts | 23 |
ARTICLE IV | ||
Satisfaction and Discharge | ||
Section 4.01 | Satisfaction and Discharge of Indenture | 23 |
Section 4.02 | Application of Trust Money | 24 |
Section 4.03 | Repayment of Monies Held by Paying Agent | 25 |
ARTICLE V | ||
Remedies | ||
Section 5.01 | Events of Default | 25 |
Section 5.02 | Acceleration of Maturity; Rescission and Annulment | 27 |
Section 5.03 | Collection of Indebtedness and Suits for Enforcement by Indenture Trustee | 27 |
Section 5.04 | Remedies; Priorities | 29 |
Section 5.05 | Optional Preservation of the Receivables | 30 |
Section 5.06 | Limitation of Suits | 30 |
Section 5.07 | Unconditional Rights of Noteholders to Receive Principal and Interest | 31 |
Section 5.08 | Restoration of Rights and Remedies | 32 |
Section 5.09 | Rights and Remedies Cumulative | 32 |
Section 5.10 | Delay or Omission Not a Waiver | 32 |
Section 5.11 | Control by Noteholders | 32 |
Section 5.12 | Waiver of Past Defaults | 33 |
Section 5.13 | Undertaking for Costs | 33 |
Section 5.14 | Waiver of Stay or Extension Laws | 33 |
Section 5.15 | Action on Notes | 34 |
Section 5.16 | Performance and Enforcement of Certain Obligations | 34 |
ARTICLE VI | ||
The Indenture Trustee | ||
Section 6.01 | Duties of Indenture Trustee | 34 |
Section 6.02 | Rights of Indenture Trustee | 36 |
ii |
Section 6.03 | Individual Rights of Indenture Trustee | 38 |
Section 6.04 | Indenture Trustee’s Disclaimer | 38 |
Section 6.05 | Notice of Defaults | 38 |
Section 6.06 | Reports by Indenture Trustee | 38 |
Section 6.07 | Compensation and Indemnity | 39 |
Section 6.08 | Replacement of Indenture Trustee | 39 |
Section 6.09 | Successor Indenture Trustee by Merger | 40 |
Section 6.10 | Appointment of Co-Indenture Trustee or Separate Indenture Trustee | 41 |
Section 6.11 | Eligibility; Disqualification | 42 |
Section 6.12 | Preferential Collection of Claims Against Issuing Entity | 42 |
Section 6.13 | Representations and Warranties of the Indenture Trustee | 42 |
Section 6.14 | Communications Regarding Demands to Repurchase Receivables | 43 |
ARTICLE VII | ||
Noteholders’ Lists and Reports | ||
Section 7.01 | Issuing Entity to Furnish Indenture Trustee Names and Addresses of Noteholders | 44 |
Section 7.02 | Preservation of Information; Communications to Noteholders; Noteholder Communications with Indenture Trustee; Communications between Noteholders | 44 |
Section 7.03 | Reports by Issuing Entity | 46 |
Section 7.04 | Reports by Indenture Trustee | 46 |
Section 7.05 | Noteholder Demand for Asset Representations Review | 47 |
ARTICLE VIII | ||
Accounts, Disbursements and Releases | ||
Section 8.01 | Collection of Money | 48 |
Section 8.02 | Trust Accounts | 48 |
Section 8.03 | General Provisions Regarding Accounts | 50 |
Section 8.04 | Release of Trust Estate | 51 |
Section 8.05 | Opinion of Counsel | 51 |
ARTICLE IX | ||
Supplemental Indentures | ||
Section 9.01 | Supplemental Indentures Without Consent of Noteholders | 51 |
Section 9.02 | Supplemental Indentures with Consent of Noteholders | 53 |
Section 9.03 | Execution of Supplemental Indentures | 54 |
Section 9.04 | Effect of Supplemental Indenture | 55 |
Section 9.05 | Conformity with Trust Indenture Act | 55 |
Section 9.06 | Reference in Notes to Supplemental Indentures | 55 |
iii |
ARTICLE X | ||
Redemption of Notes | ||
Section 10.01 | Redemption | 55 |
Section 10.02 | Form of Redemption Notice | 56 |
Section 10.03 | Notes Payable on Redemption Date | 56 |
ARTICLE XI | ||
Miscellaneous | ||
Section 11.01 | Compliance Certificates and Opinions, etc. | 56 |
Section 11.02 | Form of Documents Delivered to Indenture Trustee | 58 |
Section 11.03 | Acts of Noteholders | 59 |
Section 11.04 | Notices, etc., to Indenture Trustee, Issuing Entity and Rating Agencies | 60 |
Section 11.05 | Notices to Noteholders; Waiver | 60 |
Section 11.06 | Alternate Payment and Notice Provisions | 61 |
Section 11.07 | Conflict with Trust Indenture Act | 61 |
Section 11.08 | Effect of Headings and Table of Contents | 61 |
Section 11.09 | Successors and Assigns | 61 |
Section 11.10 | Severability | 62 |
Section 11.11 | Benefits of Indenture | 62 |
Section 11.12 | Legal Holidays | 62 |
Section 11.13 | GOVERNING LAW | 62 |
Section 11.14 | Counterparts | 62 |
Section 11.15 | Recording of Indenture | 62 |
Section 11.16 | Trust Obligation | 62 |
Section 11.17 | No Petition | 63 |
Section 11.18 | Inspection | 63 |
Section 11.19 | Waiver of Jury Trial | 64 |
ARTICLE XII | ||
COMPLIANCE WITH REGULATION AB | ||
Section 12.01 | Intent of the Parties; Reasonableness | 64 |
Section 12.02 | Additional Representations and Warranties of the Indenture Trustee | 64 |
Section 12.03 | Information to Be Provided by the Indenture Trustee | 65 |
Section 12.04 | Regulation AB Reports by Indenture Trustee | 66 |
iv |
SCHEDULE A | – | Schedule of Receivables |
EXHIBIT A-1 | – | Form of Class A-1 Note |
EXHIBIT A-2a | – | Form of Class A-2a Note |
EXHIBIT A-2b | – | Form of Class A-2b Note |
EXHIBIT A-3 | – | Form of Class A-3 Note |
EXHIBIT A-4 | – | Form of Class A-4 Note |
EXHIBIT B | – | Form of Class B Note |
EXHIBIT C | – | Servicing Criteria for Indenture Trustee’s Assessment of Compliance |
EXHIBIT D | – | Form of Indenture Trustee’s Annual Certification |
EXHIBIT E | – | Form of Transferor Certificate |
EXHIBIT F | – | Form of Investment Letter |
v |
THIS INDENTURE dated as of April 19, 2017 (as it may be amended and supplemented from time to time, this “Indenture”) is between WORLD OMNI AUTO RECEIVABLES TRUST 2017-A, a Delaware statutory trust (the “Issuing Entity”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee and not in its individual capacity (the “Indenture Trustee”).
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Issuing Entity’s Class A-1 1.10000% Asset-Backed Notes (the “Class A-1 Notes”), Class A-2a 1.50% Asset-Backed Notes (the “Class A-2a Notes”), Class A-2b One-Month LIBOR plus 0.14% Asset-Backed Notes (the “Class A-2b Notes” and, together with the Class A-2a Notes, the “Class A-2 Notes”), Class A-3 1.93% Asset-Backed Notes (the “Class A-3 Notes”), Class A-4 2.24% Asset-Backed Notes (the “Class A-4 Notes”) and Class B 2.38% Asset-Backed Notes (the “Class B Notes” and, together with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, the “Notes”):
GRANTING CLAUSE
The Issuing Entity hereby Grants to the Indenture Trustee at the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of the Issuing Entity’s right, title and interest, whether now or hereafter acquired, and wherever located, in and to (a) the Receivables identified on the SSA Assignment (all of which are identified in World Omni’s computer files by a code indicating that such Receivables are owned by the Issuing Entity and pledged to the Indenture Trustee) and all monies received thereon and in respect thereof after the Cutoff Date; (b) the security interests in, and the liens on, the Financed Vehicles granted by Obligors in connection with the Receivables and any other interest of the Issuing Entity in such Financed Vehicles; (c) any proceeds with respect to the Receivables from claims on any physical damage, credit life or disability insurance policies covering Financed Vehicles or Obligors; (d) any Financed Vehicle that shall have secured a Receivable and that shall have been acquired by or on behalf of the Depositor, the Servicer or the Issuing Entity; (e) all right, title and interest in all funds on deposit in, and “financial assets” (as such term is defined in the Uniform Commercial Code as from time to time in effect) credited to, the Trust Accounts, including the Reserve Account, from time to time, including the Reserve Account Initial Deposit, and in all investments and proceeds thereof (including all income thereon); (f) the Receivables Purchase Agreement, including the RPA Assignment, and the Sale and Servicing Agreement, including the SSA Assignment (including the Issuing Entity’s right to cause World Omni, the Servicer or the Depositor to repurchase Receivables from the Issuing Entity under certain circumstances described therein); (g) all “accounts,” “chattel paper,” “general intangibles” and “promissory notes” (as such terms are defined in the UCC) constituting or relating to the foregoing; and (h) all proceeds of any and all of the foregoing and all present and future claims, demands, causes of action and choses in action in respect of any or all of the foregoing and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds of the conversion thereof, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance proceeds, condemnation awards, rights to payment of any and every kind and other forms of obligations and receivables, instruments, general intangibles and other property which at any time constitute all or part of or are included in the proceeds of any of the foregoing; provided, however, that the foregoing items (a) through (i) shall not include the Notes and Trust Certificates (collectively, the “Collateral”).
The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes, acknowledges such Grant, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the end that the interests of the Holders of the Notes may be adequately and effectively protected.
ARTICLE I
Definitions and Incorporation by Reference
Section 1.01 Definitions. Certain capitalized terms used in this Indenture shall have the respective meanings assigned to them in Part I of Appendix A to the Sale and Servicing Agreement of even date herewith among the Issuing Entity, World Omni Auto Receivables LLC and World Omni. All references herein to “the Indenture” or “this Indenture” are to this Indenture 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 such Appendix A. All references herein to Articles, Sections, subsections and exhibits are to Articles, Sections, subsections and exhibits contained in or attached to this Indenture unless otherwise specified. All terms defined in this Indenture shall have the defined meanings when used in any certificate, notice, Note or other document made or delivered pursuant hereto unless otherwise defined therein. The rules of construction set forth in Part II of such Appendix A shall be applicable to this Indenture.
Section 1.02 Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“indenture securities” means the Notes.
“indenture security holder” means a Noteholder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the Indenture Trustee.
“obligor” on the indenture securities means the Issuing Entity and any other obligor on the indenture securities.
2 |
All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule have the meaning assigned to them by such definitions.
ARTICLE II
The Notes
Section 2.01 Form. The Class A-1 Notes, the Class A-2a Notes, the Class A-2b Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes, in each case together with the Indenture Trustee’s certificate of authentication, shall be in substantially the form set forth in Exhibit A-1, Exhibit A-2a, Exhibit A-2b, Exhibit A-3, Exhibit A-4 and Exhibit B to this Indenture, respectively, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the officers executing such Notes, as evidenced by their execution of the Notes. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.
The definitive Notes shall be typewritten, printed, lithographed or engraved or produced by any combination of these methods (with or without steel engraved borders), all as determined by the officers executing such Notes, as evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of the Notes set forth in Exhibit A-1, Exhibit A-2a, Exhibit A-2b, Exhibit A-3, Exhibit A-4 and Exhibit B are part of the terms of this Indenture.
Section 2.02 Execution, Authentication and Delivery. The Notes shall be executed on behalf of the Issuing Entity by any of its Authorized Officers. The signature of any such Authorized Officer on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signature of individuals who were at any time Authorized Officers of the Issuing Entity shall bind the Issuing Entity, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of such Notes.
The Indenture Trustee shall upon receipt of an Issuing Entity Order authenticate and deliver Class A-1 Notes for original issue in an aggregate principal amount of $225,000,000, Class A-2a Notes for original issue in an aggregate principal amount of $346,500,000, Class A-2b Notes for original issue in an aggregate principal amount of $129,500,000, Class A-3 Notes for original issue in an aggregate principal amount of $426,000,000, Class A-4 Notes for original issue in an aggregate principal amount of $94,750,000 and Class B Notes for original issue in an aggregate principal amount of $34,700,000. The aggregate principal amount of Class A-1 Notes, Class A-2a Notes, Class A-2b Notes, Class A-3 Notes, Class A-4 Notes and Class B Notes outstanding at any time may not exceed such respective amounts except as provided in Section 2.06.
3 |
Each Note shall be dated the date of its authentication. The Notes shall be issuable as registered Notes in the minimum denomination of $1,000 and in integral multiples thereof; provided, that the minimum amounts of any Retained Notes shall be subject to the restrictions set forth in Section 2.04.
No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication substantially in the form provided for herein executed by the Indenture Trustee by the manual signature of one of its authorized signatories, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.
Section 2.03 Temporary Notes. Pending the preparation of definitive Notes, the Issuing Entity may execute, and upon receipt of an Issuing Entity Order the Indenture Trustee shall authenticate and deliver, temporary Notes that are printed, lithographed, typewritten, mimeographed or otherwise produced, of the tenor of the definitive Notes in lieu of which they are issued and with such variations not inconsistent with the terms of this Indenture as the officers executing such Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuing Entity shall cause definitive Notes to be prepared without unreasonable delay. After the preparation of definitive Notes, the temporary Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Issuing Entity to be maintained as provided in Section 3.02, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuing Entity shall execute, and the Indenture Trustee shall authenticate and deliver in exchange therefor, a like principal amount of definitive Notes of authorized denominations. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as definitive Notes.
Section 2.04 Transfer Restrictions on Notes.
(a) As of the date of this Indenture, the Retained Notes have not been registered under the Securities Act and will not be listed on any exchange. Unless and until such Notes have been sold pursuant to a transaction registered under the Securities Act, no transfer of such a Note shall be made unless such transfer is made pursuant to an effective registration statement under the Securities Act and any applicable state securities laws or is exempt from the registration requirements under the Securities Act and such state securities laws. Except in a transfer pursuant to Rule 144A or a transfer to the Depositor or by the Depositor to an Affiliate thereof, in the event that a transfer is to be made in reliance upon an exemption from the Securities Act and state securities laws, in order to assure compliance with the Securities Act and such laws, the Noteholder desiring to effect such transfer and such Noteholder’s prospective transferee shall each certify to the Issuing Entity, the Indenture Trustee and WOAR in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit E (the “Transferor Certificate”) and Exhibit F (the “Investment Letter”). Except in a transfer pursuant to Rule 144A or a transfer to the Depositor or by the Depositor to an Affiliate thereof, there shall also be delivered to the Issuing Entity and the Indenture Trustee an Opinion of Counsel that such transfer may be made pursuant to an exemption from the Securities Act, which Opinion of Counsel shall not be an expense of the Trust, the Owner Trustee or the Indenture Trustee (unless it is the transferee from whom such opinion is to be obtained) or of WOAR or World Omni. WOAR shall provide to any Noteholder and any prospective transferee designated by any such Noteholder information regarding the Retained Notes and the Receivables and such other information as shall be necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such Retained Notes without registration thereof under the Securities Act pursuant to the registration exemption provided by Rule 144A. Each Noteholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Issuing Entity, the Owner Trustee, the Indenture Trustee, WOAR and World Omni (in any capacity) against any liability that may result if the transfer is not so exempt or is not made in accordance with federal and state securities laws.
4 |
(b) (i) Sale, pledge or transfer of a Retained Note may only be made to a Person who is a United States Person (within the meaning of Section 7701(a)(30) of the Internal Revenue Code) and is not acquiring such Retained Notes with the assets of any Plan that is subject to Title I of ERISA or Section 4975 of the Code; and (ii) no sale, pledge, or transfer of a Retained Note shall be made (x) to any one person in an amount less than $2,000,000 (or such other amount as the Depositor may determine in order to prevent the Issuing Entity from being treated as a “publicly traded partnership” under Section 7704 of the Code) or (y) to a Special Pass-Through Entity, in each case under this clause (ii), unless (A) an Opinion of Counsel satisfactory to the Indenture Trustee and the Depositor that such sale, pledge, or transfer shall not cause the Issuing Entity to be treated as an association (or publicly traded partnership) taxable as a corporation for federal income tax purposes shall have been delivered to the Indenture Trustee and the Depositor and (B) the Depositor shall have provided prior written approval; provided, however, that the restrictions in Section 2.04(b)(i) and (ii) above shall not continue to apply to such Retained Notes (covered by the opinion described in this clause) in the event counsel satisfactory to the Indenture Trustee and the Depositor has rendered an Opinion of Counsel, with respect to the sale, pledge or transfer by the Depositor or an Affiliate thereof, to the effect that the Retained Notes to be sold, pledged, or transferred will be characterized as indebtedness for federal income tax purposes. Any transferee, other than the Depositor or an Affiliate thereof, acquiring a Retained Note or an interest therein shall be deemed to have made the representations set forth in Section 2.14 (as if Section 2.14(a) applied to the Retained Notes). Any attempted sale, pledge or other transfer in contravention of this Section 2.4(b) will be void ab initio and the purported transferor will continue to be treated as the owner of the Retained Note.
For the purposes of this Section 2.4(b), “Special Pass-Through Entity” means a grantor trust, S corporation, or partnership (as determined, in each case, for Federal income tax purposes) where more than 50% of the value of any beneficial owner’s interest in such pass through entity is attributable to the pass-through entity’s interest in the Retained Note.
(c) [Reserved].
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(d) By acquiring a Note other than any Retained Note to which the restrictions of Section 2.04(b) of this Indenture apply, each initial purchaser, transferee and owner of a beneficial interest in such Note will be deemed to represent that either (1) it is not acquiring the Notes with the assets of any Plan or (2) the acquisition and holding of such Notes will not give rise to a nonexempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or Similar Law. Each Note other than any Retained Note will bear a legend reflecting such deemed representation. By acquiring a Retained Note to which the restrictions of Section 2.04(b) of this Indenture apply, each initial purchaser, transferee and owner of a beneficial interest in such Retained Note will be deemed to represent that either (1) it is not acquiring such Retained Note with the assets of any Plan that is subject to Title I of ERISA or Section 4975 of the Code or (2) it is acquiring such Retained Note with the assets of a Plan that is not subject to Title I of ERISA or Section 4975 of the Code and the acquisition and holding of such Retained Note will not give rise to a nonexempt prohibited transaction under Similar Law.
(e) By directly or indirectly acquiring a Retained Note in a transaction pursuant to Rule 144A, each initial purchaser, transferee and owner of a beneficial interest will be deemed to represent, warrant and agree as follows:
(i) it understands that such Notes have not been registered under the Securities Act, and may not be sold except as permitted in the following sentence. It understands and agrees, on its own behalf and on behalf of any accounts for which it is acting as hereinafter stated, (x) that such Notes are being offered only in a transaction not involving any public offering within the meaning of the Securities Act and (y) that such Notes may be resold, pledged or transferred only (i) to the Depositor, (ii) to an “accredited investor” as defined in Rule 501(a)(1),(2),(3) or (7) of Regulation D under the Securities Act (an “Accredited Investor”) acting for its own account (and not for the account of others) or as a fiduciary or agent for others (which others also are Accredited Investors unless the holder is a bank acting in its fiduciary capacity) that executes a certificate substantially in the form of the Investment Letter, (iii) so long as such Note is eligible for resale pursuant to Rule 144A under the Securities Act, to a person whom it reasonably believes after due inquiry is a “qualified institutional buyer” as defined in Rule 144A, acting for its own account (and not for the account of others) or as a fiduciary or agent for others (which others also are “qualified institutional buyers”) to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A or (iv) in a sale, pledge or other transfer made in a transaction otherwise exempt from the registration requirements of the Securities Act, in which case the Indenture Trustee shall require that both the prospective transferor and the prospective transferee certify to the Indenture Trustee and the Depositor in writing the facts surrounding such transfer, which certification shall be in form and substance satisfactory to the Indenture Trustee and the Depositor. Except in the case of a transfer described in clauses (i) or (iii) above, the Indenture Trustee shall require that a written Opinion of Counsel (which will not be at the expense of the Depositor, any Affiliate of the Depositor or the Indenture Trustee), satisfactory to the Indenture Trustee and the Depositor, be delivered to the Indenture Trustee and the Depositor to the effect that such transfer will not violate the Securities Act, and will be effected in accordance with any applicable securities laws of each state of the United States. It will notify any purchaser of such Notes from it of the above resale restrictions, if then applicable. It further understands that in connection with any transfer of such Notes by it that the Indenture Trustee and the Depositor may request, and if so requested it will furnish, such certificates and other information as they may reasonably require to confirm that any such transfer complies with the foregoing restrictions;
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(ii) it is a “qualified institutional buyer” as defined under Rule 144A under the Securities Act and is acquiring such Notes for its own account (and not for the account of others) or as a fiduciary or agent for others (which others also are “qualified institutional buyers”). It is familiar with Rule 144A under the Securities Act and is aware that the seller of such Notes and other parties intend to rely on the foregoing representations, warranties and acknowledgements and the exemption from the registration requirements of the Securities Act provided by Rule 144A;
(iii) [Reserved];
(iv) it understands that Issuing Entity, the Indenture Trustee, the Depositor and others will rely upon the truth and accuracy of the foregoing acknowledgments, representations and agreements, and it agrees that if any of the acknowledgments, representations and warranties deemed to have been made by it by its purchase of such Notes, for its own account or for one or more accounts as to each of which it exercises sole investment discretion, are no longer accurate, it shall promptly notify the Depositor; and
(v) Issuing Entity, the Indenture Trustee and the Depositor are entitled to rely upon the foregoing representations, warranties and acknowledgements and are irrevocably authorized to produce the foregoing representations, warranties and acknowledgments or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
Section 2.05 Registration; Registration of Transfer and Exchange. The Issuing Entity shall cause a note registrar (the “Note Registrar”) to keep a register (the “Note Register”) in which the Note Registrar shall provide for the registration of Notes and the registration of transfers of Notes. The Indenture Trustee initially shall be the Note Registrar for the purpose of registering Notes and transfers of Notes as herein provided. Upon any resignation of any Note Registrar, the Issuing Entity shall promptly appoint a successor or, if it elects not to make such an appointment, assume the duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuing Entity as Note Registrar, the Issuing Entity will give the Indenture Trustee prompt written notice of the appointment of such Note Registrar and of the location, and any change in the location, of the Note Register, and the Indenture Trustee shall have the right to inspect the Note Register at all reasonable times and to obtain copies thereof, and the Indenture Trustee shall have the right to rely upon a certificate executed on behalf of the Note Registrar by an Executive Officer thereof as to the names and addresses of the Holders of the Notes and the principal amounts and number of such Notes.
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Upon surrender for registration of transfer of any Note at the office or agency of the Issuing Entity to be maintained as provided in Section 3.02, if the requirements of Section 8-401 of the UCC are met the Issuing Entity shall execute, and the Indenture Trustee shall authenticate and the Noteholder shall obtain from the Indenture Trustee, in the name of the designated transferee or transferees, one or more new Notes of the same Class in any authorized denominations, of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of the same Class in any authorized denominations, of a like aggregate principal amount, upon surrender of the Notes to be exchanged at such office or agency. Whenever any Notes are so surrendered for exchange, if the requirements of Section 8-401 of the UCC are met the Issuing Entity shall execute, and the Indenture Trustee shall authenticate and the Noteholder shall obtain from the Indenture Trustee, the Notes which the Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuing Entity, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or exchange shall be duly endorsed by, or be accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Securities Transfer Agent’s Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Exchange Act.
No service charge shall be made to a Holder for any registration of transfer or exchange of Notes, but the Issuing Entity or the Note Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes, other than exchanges pursuant to Section 2.03 or 9.06 not involving any transfer.
The preceding provisions of this Section notwithstanding, the Issuing Entity shall not be required to make and the Note Registrar need not register transfers or exchanges of Notes selected for redemption or of any Note for a period of 15 days preceding the due date for any payment with respect to the Note.
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Section 2.06 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any mutilated Note is surrendered to the Indenture Trustee or Note Registrar, or the Indenture Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, and (ii) there is delivered to the Indenture Trustee such security or indemnity as may be required by it to hold the Issuing Entity and the Indenture Trustee harmless, then, in the absence of notice to the Issuing Entity, the Note Registrar or the Indenture Trustee that such Note has been acquired by a protected purchaser, and provided that the requirements of Sections 8-405 and 8-406 of the UCC are met, the Issuing Entity shall execute, and upon its request the Indenture Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note of the same Class; provided, however, that if any such destroyed, lost or stolen Note, but not a mutilated Note, shall have become or within seven days shall be due and payable, or shall have been called for redemption, instead of issuing a replacement Note, the Issuing Entity may pay such destroyed, lost or stolen Note when so due or payable or upon the Redemption Date without surrender thereof. If, after the delivery of such replacement Note or payment of a destroyed, lost or stolen Note pursuant to the proviso to the preceding sentence, a protected purchaser of the original Note in lieu of which such replacement Note was issued presents for payment such original Note, the Issuing Entity and the Indenture Trustee shall be entitled to recover such replacement Note (or such payment) from the Person to whom it was delivered or any Person taking such replacement Note from such Person to whom such replacement Note was delivered or any assignee of such Person, except a protected purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuing Entity or the Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, the Issuing Entity may require the payment by the Holder of such Note of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuing Entity, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.07 Persons Deemed Owner. Prior to due presentment for registration of transfer of any Note, the Issuing Entity, the Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat the Person in whose name any Note is registered (as of the day of determination) as the owner of such Note for the purpose of receiving payments of principal of and interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Issuing Entity, the Indenture Trustee or any agent of the Issuing Entity or the Indenture Trustee shall be affected by notice to the contrary.
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Section 2.08 Payment of Principal and Interest; Defaulted Interest.
(a) The Class A-1 Notes, the Class A-2a Notes, the Class A-2b Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes shall accrue interest during the related Interest Accrual Period at the Class A-1 Interest Rate, the Class A-2a Interest Rate, the Class A-2b Interest Rate, the Class A-3 Interest Rate, the Class A-4 Interest Rate and the Class B Interest Rate, respectively, and such interest shall be payable on each Payment Date in accordance with the priorities set forth in Section 8.02(c), (d) and (e), as applicable, subject to Section 3.01. Interest on the Class A-2a Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes will be calculated on the basis of a 360-day year consisting of twelve 30-day months. Interest on the Class A-1 Notes and the Class A-2b Notes will be calculated on the basis of the actual number of days in the related Interest Accrual Period and a 360-day year. The Issuing Entity will pay interest on each Class of Notes at the related Interest Rate on each Payment Date on the principal amount of the related Class of Notes outstanding on the preceding Payment Date (after giving effect to all payments of principal made on the preceding Payment Date), subject to certain limitations contained in the last sentence of Section 3.01. Any installment of interest or principal payable on a Note that is punctually paid or duly provided for by the Issuing Entity on the applicable Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered on the Record Date by check mailed first-class postage prepaid to such Person’s address as it appears on the Note Register on such Record Date, except that, unless Definitive Notes have been issued pursuant to Section 2.13, with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.) or WOAR or any of its Affiliates, payment will be made by wire transfer in immediately available funds to the account designated by such person or nominee and except for the final installment of principal payable with respect to such Note on a Payment Date or on the applicable Final Scheduled Payment Date for such Class (and except for the Redemption Price for any Note called for redemption pursuant to Section 10.01) which shall be payable as provided below. The funds represented by any such checks returned undelivered shall be held in accordance with Section 3.03.
(b) Prior to the occurrence of an Event of Default and a declaration in accordance with Section 5.02 that the Notes have become immediately due and payable, the Outstanding Amount of each Class of Notes shall be payable in full on the Final Scheduled Payment Date for such Class and, to the extent of funds available therefor, in installments on the Payment Dates (if any) preceding the Final Scheduled Payment Date for such Class, in the amounts and in accordance with the priorities set forth in Section 8.02(c), subject to Section 3.01.
(c) Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable, if not previously paid, on the date on which an Event of Default shall have occurred and be continuing, if the Indenture Trustee or Holders of the Notes representing at least a majority of the Outstanding Amount of the Controlling Securities have declared the Notes to be immediately due and payable in the manner provided in Section 5.02. In such case, principal shall be paid in accordance with the priorities set forth in Section 8.02(d) or Section 8.02(e), as the case may be. The Indenture Trustee shall notify the Person in whose name a Note is registered at the close of business on the Record Date preceding the Payment Date on which the Issuing Entity expects that the final installment of principal of and interest on such Note will be paid. Such notice shall be mailed or transmitted by facsimile prior to such final Payment Date and shall specify that such final installment will be payable only upon presentation and surrender of such Note and shall specify the place where such Note may be presented and surrendered for payment of such installment. Notices in connection with redemptions of Notes shall be mailed to Noteholders as provided in Section 10.02.
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(d) If the Issuing Entity defaults in a payment of interest on the Notes, the Issuing Entity shall pay defaulted interest (plus interest on such defaulted interest to the extent lawful) at the applicable Interest Rate in any lawful manner. The Issuing Entity may pay such defaulted interest to the persons who are Noteholders on a subsequent special record date, which date shall be at least five Business Days prior to the payment date. The Issuing Entity shall fix or cause to be fixed any such special record date and payment date, and, at least 15 days before any such special record date, the Issuing Entity shall mail to each Noteholder a notice that states the special record date, the payment date and the amount of defaulted interest to be paid.
Section 2.09 Cancellation. All Notes surrendered for payment, registration of transfer, exchange or redemption shall, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly cancelled by the Indenture Trustee. The Issuing Entity may at any time deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Issuing Entity may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Notes may be held or disposed of by the Indenture Trustee in accordance with its standard retention or disposal policy as in effect at the time unless the Issuing Entity shall direct by an Issuing Entity Order that they be returned to it; provided, that such Issuing Entity Order is timely and the Notes have not been previously disposed of by the Indenture Trustee.
Section 2.10 Release of Collateral. Subject to Section 11.01 and the terms of the Basic Documents, the Indenture Trustee shall release property from the lien of this Indenture only upon receipt of an Issuing Entity Request accompanied by an Officer’s Certificate of the Issuing Entity, an Opinion of Counsel and Independent Certificates in accordance with TIA §§ 314(c) and 314(d)(1) or an Opinion of Counsel in lieu of such Independent Certificates to the effect that the TIA does not require any such Independent Certificates.
Section 2.11 Book-Entry Notes. Except as provided in Section 2.13, the Notes, upon original issuance, will be issued in the form of typewritten, printed, lithographed or engraved or produced by any combination of these methods (with or without steel engraved borders) Notes representing the Book-Entry Notes, to be delivered to (or held by the Indenture Trustee on behalf of) The Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the Issuing Entity. The Book-Entry Notes shall be registered initially on the Note Register in the name of Cede & Co., the nominee of the initial Clearing Agency, and no Note Owner will receive a definitive Note representing such Note Owner’s interest in such Note, except as provided in Section 2.13. Unless and until definitive, fully registered Notes (the “Definitive Notes”) have been issued to such Note Owners pursuant to Section 2.13:
(i) the provisions of this Section shall be in full force and effect;
(ii) the Note Registrar and the Indenture Trustee shall be entitled to deal with the Clearing Agency for all purposes of this Indenture (including the payment of principal of and interest on the Notes and the giving of instructions or directions hereunder) as the sole holder of the Notes, and shall have no obligation to the Note Owners, except as stated in Section 7.05;
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(iii) to the extent that the provisions of this Section conflict with any other provisions of this Indenture, the provisions of this Section shall control;
(iv) the rights of Note Owners shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between such Note Owners and the Clearing Agency and/or the Clearing Agency Participants pursuant to the Note Depository Agreement. Unless and until Definitive Notes are issued pursuant to Section 2.13, the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit payments of principal of and interest on the Notes to such Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions to be taken based upon instructions or directions of Holders of Notes evidencing a specified percentage of the Outstanding Amount of the Controlling Securities, the Clearing Agency shall be deemed to represent such percentage only to the extent that it has received instructions to such effect from Note Owners and/or Clearing Agency Participants owning or representing, respectively, such required percentage of the beneficial interest in the Controlling Securities and has delivered such instructions to the Indenture Trustee.
Section 2.12 Notices to Clearing Agency. Whenever a notice or other communication to the Noteholders is required under this Indenture, unless and until Definitive Notes shall have been issued to such Note Owners pursuant to Section 2.13, the Indenture Trustee shall give all such notices and communications specified herein to be given to Holders of the Notes to the Clearing Agency, and shall have no obligation to such Note Owners; provided, that, the Indenture Trustee’s obligation to provide or forward any notice or other communication to the Noteholders may be met by the Indenture Trustee posting a copy of such information on its internet website described in Section 6.06 promptly following its receipt thereof.
Section 2.13 Definitive Notes. The Retained Notes, upon original issuance, will be in the form of Definitive Notes, but, at the request of all of the holders thereof, may be exchanged for Book-Entry Notes. If (i) the Administrator advises the Indenture Trustee in writing that the Clearing Agency is no longer willing or able to properly discharge its responsibilities with respect to the Book-Entry Notes and the Administrator is unable to locate a qualified successor, (ii) the Administrator at its option advises the Indenture Trustee in writing that it elects to terminate the book-entry system through the Clearing Agency or (iii) after the occurrence of an Event of Default or a Servicer Default, Owners of the Book-Entry Notes representing beneficial interests aggregating at least a majority of the Outstanding Amount of the Controlling Securities advise the Clearing Agency in writing that the continuation of a book-entry system through the Clearing Agency is no longer in the best interests of such Note Owners, then the Clearing Agency shall notify all Note Owners and the Indenture Trustee of the occurrence of any such event and of the availability of Definitive Notes to Note Owners requesting the same. Upon surrender to the Indenture Trustee of the typewritten Notes representing the Book-Entry Notes by the Clearing Agency, accompanied by registration instructions, the Issuing Entity shall execute and the Indenture Trustee shall authenticate the Definitive Notes in accordance with the instructions of the Clearing Agency. None of the Issuing Entity, the Note Registrar or the Indenture Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Notes, the Indenture Trustee shall recognize the Holders of the Definitive Notes as Noteholders.
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Section 2.14 Tax Treatment.
(a) The Issuing Entity has entered into this Indenture, and the Notes will be issued, with the intention that, for all purposes including federal, state and local income, single business and franchise tax purposes, the Notes (other than any Retained Notes) will qualify as indebtedness secured by the Trust Estate. The Issuing Entity, by entering into this Indenture, and each Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance of an interest in the applicable Book-Entry Note), agree to treat the Notes (other than Notes held by any entity whose separate existence from the Issuing Entity is disregarded for federal income tax purposes, but only so long as such Notes are held by such entity) for all purposes including federal, state and local income, single business and franchise tax purposes as indebtedness.
(b) Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, agrees to provide to the Person from whom it receives payments on the Notes (including the Paying Agent) the Noteholder Tax Identification Information and, upon request, to the extent FATCA Withholding Tax is applicable, the Noteholder FATCA Information.
(c) Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, agrees that the Indenture Trustee has the right to withhold any amounts of interest (properly withholdable under law and without any corresponding gross-up) payable to a Noteholder or holder of an interest in a Note that fails to comply with the requirements of Section 2.14(b).
Section 2.15 CUSIP Numbers. The Issuing Entity in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Indenture Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Noteholders; provided that any such notice may state that no representation is made as to the correctness of such “CUSIP” numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes and any such redemption shall not be affected by any defect in or omission of such numbers. The Depositor will promptly notify the Indenture Trustee in writing of any change in the “CUSIP” numbers.
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ARTICLE III
Covenants
Section 3.01 Payment of Principal and Interest. The Issuing Entity will duly and punctually pay the principal of and interest, if any, on the Notes in accordance with the terms of the Notes and this Indenture. Without limiting the foregoing, subject to and in accordance with Section 8.02(c), the Issuing Entity will cause to be distributed all amounts on deposit in the Note Distribution Account and allocated for distribution to the Noteholders on a Payment Date pursuant to the Sale and Servicing Agreement (i) for the benefit of the Class A-1 Notes, to the Class A-1 Noteholders, (ii) for the benefit of the Class A-2a Notes, to the Class A-2a Noteholders, (iii) for the benefit of the Class A-2b Notes, to the Class A-2b Noteholders, (iv) for the benefit of the Class A-3 Notes, to the Class A-3 Noteholders, (v) for the benefit of the Class A-4 Notes, to the Class A-4 Noteholders and (vi) for the benefit of the Class B Notes, to the Class B Noteholders. Amounts properly withheld under the Code by any Person from a payment to any Noteholder of interest and/or principal shall be considered as having been paid by the Issuing Entity to such Noteholder for all purposes of this Indenture.
Section 3.02 Maintenance of Office or Agency. The Issuing Entity will maintain in the City of St. Paul, Minnesota, an office or agency where Notes may be surrendered for registration of transfer or exchange, and where notices and demands to or upon the Issuing Entity in respect of the Notes and this Indenture may be served. Such office or agency will initially be at Corporate Trust Office of the Indenture Trustee, and the Issuing Entity hereby initially appoints the Indenture Trustee to serve as its agent for the foregoing purposes. The Issuing Entity will give prompt written notice to the Indenture Trustee of any change in the location of any such office or agency. If at any time the Issuing Entity shall fail to maintain any such office or agency or shall fail to furnish the Indenture Trustee with the address thereof, such surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Issuing Entity hereby appoints the Indenture Trustee as its agent to receive all such surrenders, notices and demands.
Section 3.03 Money for Payments to Be Held in Trust. As provided in Section 8.02(a) and (b), all payments of amounts due and payable with respect to any Notes that are to be made from amounts withdrawn from the Collection Account and the Note Distribution Account pursuant to Section 8.02(c), (d), (e) and (g) shall be made on behalf of the Issuing Entity by the Indenture Trustee or by another Paying Agent, and no amounts so withdrawn from the Collection Account and the Note Distribution Account for payments of Notes shall be paid over to the Issuing Entity except as provided in this Section.
On or before the Payment Determination Date or the Business Day prior to the Redemption Date, as applicable, the Issuing Entity shall allocate or cause to be allocated in the Note Distribution Account for distribution to the Noteholders an aggregate sum sufficient to pay the amounts then becoming due under the Notes, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless the Paying Agent is the Indenture Trustee) shall promptly notify the Indenture Trustee of its action or failure so to act.
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The Issuing Entity will cause each Paying Agent other than the Indenture Trustee to execute and deliver to the Indenture Trustee an instrument in which such Paying Agent shall agree with the Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with respect to the Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the Issuing Entity (or any other obligor upon the Notes) of which it has actual knowledge in the making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon the written request of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the Indenture Trustee all sums held by it in trust for the payment of Notes if at any time it ceases to meet the standards required to be met by a Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to the withholding from any payments made by it on any Notes of any applicable withholding taxes imposed thereon and with respect to any applicable reporting requirements in connection therewith.
The Issuing Entity may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, by Issuing Entity Order direct any Paying Agent to pay to the Indenture Trustee all sums held in trust by such Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts as those upon which the sums were held by such Paying Agent; and upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money held by the Indenture Trustee or any Paying Agent in trust for the payment of any amount due with respect to any Note and remaining unclaimed for two years after such amount has become due and payable shall be discharged from such trust and be paid to the Issuing Entity on Issuing Entity Request; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuing Entity for payment thereof (but only to the extent of the amounts so paid to the Issuing Entity), and all liability of the Indenture Trustee or such Paying Agent with respect to such trust money shall thereupon cease; provided, however, that the Indenture Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense and direction of the Issuing Entity cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuing Entity. The Indenture Trustee shall also adopt and employ, at the expense and direction of the Issuing Entity, any other reasonable means of notification of such repayment (including, but not limited to, mailing notice of such repayment to Holders whose Notes have been called but have not been surrendered for redemption or whose right to or interest in monies due and payable but not claimed is determinable from the records of the Indenture Trustee or of any Paying Agent, at the last address of record for each such Holder).
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Section 3.04 Existence. The Issuing Entity will keep in full effect its existence, rights and franchises as a statutory trust under the laws of the State of Delaware (unless it becomes, or any successor Issuing Entity hereunder is or becomes, organized under the laws of any other State or of the United States of America, in which case the Issuing Entity will keep in full effect its existence, rights and franchises under the laws of such other jurisdiction) and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate.
Section 3.05 Protection of Trust Estate. The Issuing Entity will from time to time execute and deliver all such supplements and amendments hereto and all such financing statements, continuation statements, instruments of further assurance and other instruments, and also deliver the Schedule of Receivables and the Sale and Servicing Agreement (including Schedule A thereto, as revised from time to time) to the Indenture Trustee, and will take such other action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and the priority thereof) of this Indenture or carry out more effectively the purposes hereof;
(ii) perfect, publish notice of or protect the validity of any Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and the rights of the Indenture Trustee and the Noteholders in such Trust Estate against the claims of all persons and parties.
The Issuing Entity hereby authorizes the Administrator and Indenture Trustee to file any financing statement, continuation statement or other instrument required to be executed pursuant to this Section 3.05. The Issuing Entity hereby ratifies any such financing statements filed prior to the date hereof; it being understood that such authorization shall not be deemed to be an obligation on the part of the Administrator or the Indenture Trustee to make any such filing.
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Section 3.06 Opinions as to Trust Estate.
(a) On the Closing Date, the Issuing Entity shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Indenture, any indentures supplemental hereto, and any other requisite documents, and with respect to the execution and filing of any financing statements and continuation statements, as are necessary to perfect and make effective the lien and security interest of this Indenture and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective.
(b) On or before April 30, in each calendar year, beginning in 2018, the Issuing Entity shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents and with respect to the execution and filing of any financing statements and continuation statements as is necessary to maintain the lien and security interest created by this Indenture and reciting the details of such action, or stating that in the opinion of such counsel no such action is necessary to maintain such lien and security interest. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Indenture until April 30 in the following calendar year.
Section 3.07 Performance of Obligations; Servicing of Receivables.
(a) The Issuing Entity will not take any action and will use its best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in this Indenture, the Sale and Servicing Agreement or such other instrument or agreement.
(b) The Issuing Entity may contract with other Persons to assist it in performing its duties under this Indenture, and any performance of such duties by a Person identified to the Indenture Trustee in an Officer’s Certificate of the Issuing Entity shall be deemed to be action taken by the Issuing Entity. Initially, the Issuing Entity has contracted with the Servicer and the Administrator to assist the Issuing Entity in performing its duties under this Indenture.
(c) The Issuing Entity will punctually perform and observe all of its obligations and agreements contained in this Indenture, the Basic Documents and in the instruments and agreements included in the Trust Estate, including but not limited to filing or causing to be filed all UCC financing statements and continuation statements required to be filed by the terms of this Indenture and the Sale and Servicing Agreement in accordance with and within the time periods provided for herein and therein. Except as otherwise expressly provided therein, the Issuing Entity shall not waive, amend, modify, supplement or terminate any Basic Document or any provision thereof without the consent of the Indenture Trustee or the Holders of at least a majority of the Outstanding Amount of the Controlling Securities.
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(d) If the Issuing Entity shall have knowledge of the occurrence of a Servicer Default under the Sale and Servicing Agreement, the Issuing Entity shall promptly notify the Indenture Trustee and the Rating Agencies thereof, and shall specify in such notice the action, if any, the Issuing Entity is taking with respect to such default. If a Servicer Default shall arise from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the Issuing Entity shall take all reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of termination to the Servicer of the Servicer’s rights and powers pursuant to Section 8.01 of the Sale and Servicing Agreement, the Indenture Trustee shall appoint a successor servicer (the “Successor Servicer”), and such Successor Servicer shall 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 and 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, subject to Section 8.02 of the Sale and Servicing Agreement. The Indenture Trustee may resign as the Servicer by giving written notice of such resignation to the Issuing Entity and the Depositor and in such event will be released from such duties and obligations, such release not to be effective until the date a new servicer enters into a servicing agreement with the Issuing Entity as provided below. Upon delivery of any such notice to the Issuing Entity, the Indenture Trustee shall obtain a new servicer as the Successor Servicer under the Sale and Servicing Agreement. Any Successor Servicer other than the Indenture Trustee shall (i) be an established financial institution having a net worth of not less than $100,000,000 and whose regular business includes the servicing of Contracts and (ii) enter into a servicing agreement with the Issuing Entity having substantially the same provisions as the provisions of the Sale and Servicing Agreement applicable to the Servicer. If within 30 days after the delivery of the notice referred to above, the Issuing Entity shall not have obtained such a new servicer, the Indenture Trustee may appoint, or may petition a court of competent jurisdiction to appoint, a Successor Servicer. In connection with any such appointment, the Indenture Trustee may make such arrangements for the compensation of such successor as it and such successor shall agree, subject to the limitations set forth below and in the Sale and Servicing Agreement, and in accordance with Section 8.02 of the Sale and Servicing Agreement, the Issuing Entity shall enter into an agreement with such successor for the servicing of the Receivables (such agreement to be in form and substance satisfactory to the Indenture Trustee). Notwithstanding anything herein or in the Sale and Servicing Agreement 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 the Basic Documents and the transactions set forth or provided for therein. If the Indenture Trustee shall succeed to the Servicer’s duties as servicer of the Receivables as provided herein, it shall do so in its individual capacity and not in its capacity as Indenture Trustee and, accordingly, the provisions of Article VI hereof shall be inapplicable to the Indenture Trustee in its duties as the successor to the Servicer and the servicing of the Receivables. In case the Indenture Trustee shall become successor to the Servicer under the Sale and Servicing Agreement, the Indenture Trustee shall be entitled to appoint as Servicer any one of its Affiliates, provided that it shall be fully liable for the actions and omissions of such Affiliate in such capacity as Successor Servicer.
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(f) Upon any termination of the Servicer’s rights and powers pursuant to the Sale and Servicing Agreement, the Issuing Entity shall promptly notify the Indenture Trustee. As soon as a Successor Servicer is appointed, the Indenture Trustee shall notify the Issuing Entity of such appointment, specifying in such notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment granted to the Indenture Trustee under this Indenture or the rights of the Indenture Trustee hereunder, the Issuing Entity agrees (i) that it will not, without the prior written consent of the Indenture Trustee or the Holders of at least a majority of the Outstanding Amount of the Controlling Securities, amend, modify, waive, supplement, terminate or surrender, or agree to any amendment, modification, supplement, termination, waiver or surrender of, the terms of any Collateral (except to the extent otherwise provided in the Sale and Servicing Agreement) or the Trust Agreement, the Sale and Servicing Agreement, the Receivables Purchase Agreement, the Administration Agreement (except as may be permitted thereby), or waive timely performance or observance by the Servicer or the Depositor under the Sale and Servicing Agreement (except as may be permitted thereby); and (ii) that any such amendment shall not (A) increase or reduce in any manner the amount of, or accelerate or delay the timing of, distributions that are required to be made for the benefit of the Noteholders or (B) reduce the aforesaid percentage of the Controlling Securities that is required to consent to any such amendment, without the consent of the Holders of all the Outstanding Notes. If any such amendment, modification, supplement or waiver shall be so consented to by the Indenture Trustee or such Holders, the Issuing Entity agrees, promptly following a request by the Indenture Trustee to do so, to execute and deliver, in its own name and at its own expense, such agreements, instruments, consents and other documents as the Indenture Trustee may deem necessary or appropriate in the circumstances.
Section 3.08 Negative Covenants. So long as any Notes are Outstanding, the Issuing Entity shall not:
(i) except as expressly permitted by this Indenture, the Receivables Purchase Agreement or the Sale and Servicing Agreement, (A) dissolve or liquidate in whole or in part or (B) sell, transfer, exchange or otherwise dispose of any of the properties or assets of the Issuing Entity, including those included in the Trust Estate, in either case, unless directed to do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from the principal or interest payable in respect of, the Notes (other than amounts properly withheld from such payments under the Code or applicable state law) or assert any claim against any present or former Noteholder by reason of the payment of the taxes levied or assessed upon any part of the Trust Estate; or
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(iii) (A) permit the validity or effectiveness of this Indenture to be impaired, or permit the lien of this Indenture to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to the Notes under this Indenture except as may be expressly permitted hereby, (B) permit any lien, charge, excise, claim, security interest, mortgage or other encumbrance (other than the lien of this Indenture) to be created on or extend to or otherwise arise upon or burden the Trust Estate or any part thereof or any interest therein or the proceeds thereof (other than tax liens, mechanics’ liens and other liens that arise by operation of law, in each case on any of the Financed Vehicles and arising solely as a result of an action or omission of the related Obligor) or (C) permit the lien of this Indenture not to constitute a valid first priority (other than with respect to any such tax, mechanics’ or other lien) security interest in the Trust Estate.
Section 3.09 Annual Statement as to Compliance. The Issuing Entity will deliver to the Indenture Trustee within 120 days after the end of each fiscal year of the Issuing Entity (commencing with the fiscal year 2017), an Officer’s Certificate stating, as to the Authorized Officer signing such Officer’s Certificate, that:
(i) a review of the activities of the Issuing Entity during such year and of its performance under this Indenture has been made under such Authorized Officer’s supervision; and
(ii) to the best of such Authorized Officer’s knowledge, based on such review, the Issuing Entity has complied in all material respects with all conditions and covenants under this Indenture throughout such year or, if there has been a material default in its compliance with any such condition or covenant, specifying each such default known to such Authorized Officer and the nature and status thereof.
Section 3.10 Issuing Entity May Consolidate, etc., Only on Certain Terms.
(a) The Issuing Entity shall not consolidate or merge with or into any other Person, unless:
(i) the Person (if other than the Issuing Entity) formed by or surviving such consolidation or merger shall be a Person organized and existing under the laws of the United States of America or any State and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Indenture Trustee, in form satisfactory to the Indenture Trustee, the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and the other Basic Documents on the part of the Issuing Entity to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
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(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) the Issuing Entity shall have received an Opinion of Counsel (and shall have delivered copies thereof to the Indenture Trustee) to the effect that such transaction will not have any material adverse tax consequence to the Issuing Entity, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain the lien and security interest created by this Indenture shall have been taken; and
(vi) the Issuing Entity shall have delivered to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation or merger and such supplemental indenture comply with this Article III and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act).
(b) The Issuing Entity shall not convey or transfer any of its properties or assets, including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the properties and assets of the Issuing Entity the conveyance or transfer of which is hereby restricted (A) shall be a United States citizen or a Person organized and existing under the laws of the United States of America or any State, (B) expressly assumes, by an indenture supplemental hereto, executed and delivered to the Indenture Trustee, in form satisfactory to the Indenture Trustee, the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture on the part of the Issuing Entity to be performed or observed, all as provided herein, (C) expressly agrees by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (D) unless otherwise provided in such supplemental indenture, expressly agrees to indemnify, defend and hold harmless the Issuing Entity against and from any loss, liability or expense arising under or related to this Indenture and the Notes and (E) expressly agrees by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) the Issuing Entity shall have received an Opinion of Counsel (and shall have delivered copies thereof to the Indenture Trustee) to the effect that such transaction will not have any material adverse federal income tax consequence to the Issuing Entity, any Noteholder or any Certificateholder;
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(v) any action that is necessary to maintain the lien and security interest created by this Indenture shall have been taken; and
(vi) the Issuing Entity shall have delivered to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such conveyance or transfer and such supplemental indenture comply with this Article III and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act).
Section 3.11 Successor or Transferee. Upon any consolidation or merger of the Issuing Entity in accordance with Section 3.10(a), the Person formed by or surviving such consolidation or merger (if other than the Issuing Entity) shall succeed to, and be substituted for, and may exercise every right and power of, the Issuing Entity under this Indenture with the same effect as if such Person had been named as the Issuing Entity herein.
(a) Upon a conveyance or transfer of all the assets and properties of the Issuing Entity pursuant to Section 3.10(b), World Omni Auto Receivables Trust 2017-A will be released from every covenant and agreement of this Indenture to be observed or performed on the part of the Issuing Entity with respect to the Notes immediately upon the delivery of written notice to the Indenture Trustee stating that World Omni Auto Receivables Trust 2017-A is to be so released.
Section 3.12 No Other Business. The Issuing Entity shall not engage in any business other than financing, purchasing, owning, selling and managing the Receivables in the manner contemplated by this Indenture and the Basic Documents and activities incidental thereto. After the Closing Date, the Issuing Entity shall not fund the purchase of any new Contracts.
Section 3.13 No Borrowing. The Issuing Entity shall not issue, incur, assume, guarantee or otherwise become liable, directly or indirectly, for any indebtedness.
Section 3.14 Servicer’s Obligations. The Issuing Entity shall use all reasonable efforts to cause the Servicer to comply with Sections 4.09, 4.10, 4.11 and 5.07(b) and Article IX of the Sale and Servicing Agreement.
Section 3.15 Guarantees, Loans, Advances and Other Liabilities. Except as contemplated by the Sale and Servicing Agreement or this Indenture, the Issuing Entity shall not make any loan or advance or credit to, or guarantee (directly or indirectly or by an instrument having the effect of assuring another’s payment or performance on any obligation or capability of so doing or otherwise), endorse or otherwise become contingently liable, directly or indirectly, in connection with the obligations, stocks or dividends of, or own, purchase, repurchase or acquire (or agree contingently to do so) any stock, obligations, assets or securities of, or any other interest in, or make any capital contribution to, any other Person.
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Section 3.16 Capital Expenditures. The Issuing Entity shall not make any expenditure (by long-term or operating lease or otherwise) for capital assets (either realty or personalty).
Section 3.17 Removal of Administrator. So long as any Notes are Outstanding, the Issuing Entity shall not remove the Administrator without cause unless the Rating Agency Condition shall have been satisfied in connection with such removal.
Section 3.18 Restricted Payments. The Issuing Entity shall not, directly or indirectly, (i) pay any dividend or make any distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, to the Owner Trustee or any owner of a beneficial interest in the Issuing Entity or otherwise with respect to any ownership or equity interest or security in or of the Issuing Entity or to the Servicer (except as provided in the Basic Documents), (ii) redeem, purchase, retire or otherwise acquire for value any such ownership or equity interest or security or (iii) set aside or otherwise segregate any amounts for any such purpose; provided, however, that the Issuing Entity may make, or cause to be made, (x) distributions as contemplated by, and to the extent funds are available for such purpose under, the Sale and Servicing Agreement or the Trust Agreement and (y) payments to the Indenture Trustee pursuant to Section 1.01(a)(ii) of the Administration Agreement. The Issuing Entity will not, directly or indirectly, make payments to or distributions from the Collection Account except in accordance with this Indenture and the Basic Documents.
Section 3.19 Notice of Events of Default. The Issuing Entity shall give the Indenture Trustee and the Rating Agencies prompt written notice of each Event of Default hereunder and each Servicer Default.
Section 3.20 Further Instruments and Acts. Upon request of the Indenture Trustee or as necessary, the Issuing Entity will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
ARTICLE IV
Satisfaction and Discharge
Section 4.01 Satisfaction and Discharge of Indenture. This Indenture shall cease to be of further effect with respect to the Notes except as to (i) rights of registration of transfer and exchange, (ii) substitution of mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments of principal thereof and interest thereon, (iv) Sections 3.03, 3.04, 3.05, 3.08, 3.10, 3.12, 3.13, 3.14 and 3.15, (v) the rights, obligations and immunities of the Indenture Trustee hereunder (including the rights of the Indenture Trustee under Section 6.07 and the obligations of the Indenture Trustee under Section 4.02) and (vi) the rights of Noteholders as beneficiaries hereof with respect to the property so deposited with the Indenture Trustee payable to all or any of them, and the Indenture Trustee, on demand of and at the expense of the Issuing Entity, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Notes, when:
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(A) either:
(1) all Notes theretofore authenticated and delivered (other than (i) Notes that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.06 and (ii) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuing Entity and thereafter repaid to the Issuing Entity or discharged from such trust, as provided in Section 3.03) have been delivered to the Indenture Trustee for cancellation; or
(2) all Notes not theretofore delivered to the Indenture Trustee for cancellation:
(I) have become due and payable, or
(II) are to be called for redemption within one year under arrangements satisfactory to the Indenture Trustee for the giving of notice of redemption by the Indenture Trustee in the name, and at the expense, of the Issuing Entity,
and the Issuing Entity, in the case of (I) or (II) above, has irrevocably deposited or caused to be irrevocably deposited with the Indenture Trustee cash or direct obligations of or obligations guaranteed by the United States of America (which will mature prior to the date such amounts are payable), in trust for such purpose, in an amount sufficient to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Indenture Trustee for cancellation when due to the applicable Final Scheduled Payment Date or Redemption Date (if Notes shall have been called for redemption pursuant to Section 10.01), as the case may be;
(B) the Issuing Entity has paid or caused to be paid all other sums payable by the Issuing Entity hereunder; and
(C) the Issuing Entity has delivered to the Indenture Trustee an Officer’s Certificate, an Opinion of Counsel and (if required by the TIA or the Indenture Trustee) an Independent Certificate from a firm of certified public accountants, each meeting the applicable requirements of Section 11.01(a) and, subject to Section 11.02, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Section 4.02 Application of Trust Money. All monies deposited with the Indenture Trustee pursuant to Section 4.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent, as the Indenture Trustee may determine, to the Holders of the particular Notes for the payment or redemption of which such monies have been deposited with the Indenture Trustee, of all sums due and to become due thereon for principal and interest; but such monies need not be segregated from other funds except to the extent required herein or in the Sale and Servicing Agreement or required by law.
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Section 4.03 Repayment of Monies Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to the Notes, all monies then held by any Paying Agent other than the Indenture Trustee under the provisions of this Indenture with respect to such Notes shall, upon demand of the Issuing Entity, be paid to the Indenture Trustee to be held and applied according to Section 3.03 and thereupon such Paying Agent shall be released from all further liability with respect to such monies.
ARTICLE V
Remedies
Section 5.01 Events of Default.
(a) “Event of Default,” wherever used herein, means any one of the following events (whatever the reason for such Event of Default and, subject to Sections 5.01(iv) and (v) whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(i) default in the payment of any interest on any Note when the same becomes due and payable, and such default shall continue for a period of five Business Days; provided, however, that until the Outstanding Amount of the Class A Notes is reduced to zero, a default in the payment of any interest on any Class B Note shall not by itself constitute an Event of Default hereunder; or
(ii) default in the payment of the principal of or any installment of the principal of any Note when the same becomes due and payable (A) in accordance with Sections 3.01 and 8.02(c) to the extent funds are available therefor and (B) on the related Final Scheduled Payment Date; or
(iii) material default in the observance or performance of any covenant or agreement of the Issuing Entity made in this Indenture (other than a covenant or agreement, a default in the observance or performance of which is elsewhere in this Section specifically dealt with), or any representation or warranty of the Issuing Entity made in this Indenture or in any certificate or other writing delivered pursuant hereto or in connection herewith proving to have been incorrect in any material respect as of the time when the same shall have been made, and such default shall continue or not be cured, or the circumstance or condition in respect of which such misrepresentation or warranty was incorrect shall not have been eliminated or otherwise cured, for a period of 60 days after there shall have been given, by registered or certified mail, to the Issuing Entity by the Indenture Trustee or to the Issuing Entity and the Indenture Trustee by the Holders of at least 25% of the Outstanding Amount of the Controlling Securities, a written notice specifying such default or incorrect representation or warranty and requiring it to be remedied and stating that such notice is a notice of Default hereunder; or
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(iv) the filing of a decree or order for relief by a court having jurisdiction in the premises in respect of the Issuing Entity or any substantial part of the Trust Estate in an involuntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuing Entity or for any substantial part of the Trust Estate, or ordering the winding-up or liquidation of the Issuing Entity’s affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(v) the commencement by the Issuing Entity of a voluntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by the Issuing Entity to the entry of an order for relief in an involuntary case under any such law, or the consent by the Issuing Entity to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuing Entity or for any substantial part of the Trust Estate, or the making by the Issuing Entity of any general assignment for the benefit of creditors, or the failure by the Issuing Entity generally to pay its debts as such debts become due, or the taking of any action by the Issuing Entity in furtherance of any of the foregoing.
(b) The Issuing Entity shall deliver to the Indenture Trustee, within five days after the occurrence thereof, written notice in the form of an Officer’s Certificate of any event which with the giving of notice and the lapse of time would become an Event of Default under clause (a)(iii), its status and what action the Issuing Entity is taking or proposes to take with respect thereto.
(c) Notwithstanding the foregoing, a delay in or failure of performance referred to under clauses (a)(i) and (ii) above for a period of ten Business Days or referred to under clause (a)(iii) for a period of 90 Business Days, shall not constitute an Event of Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Issuing Entity or the Indenture Trustee, as applicable, and was caused by an act of God or other similar occurrence. Upon the occurrence of any such event, each of the Issuing Entity and the Indenture Trustee, as applicable, shall not be relieved from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Indenture and the Issuing Entity or the Indenture Trustee, as applicable, shall provide the Indenture Trustee (if such delay or failure is a result of a delay or failure by the Issuing Entity), the Owner Trustee, the Noteholders and the Certificateholders prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations.
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Section 5.02 Acceleration of Maturity; Rescission and Annulment. If an Event of Default should occur and be continuing, then and in every such case the Indenture Trustee or the Holders of Notes representing at least a majority of the Outstanding Amount of the Controlling Securities may declare all the Notes to be immediately due and payable, by a notice in writing to the Issuing Entity (and to the Indenture Trustee if given by Noteholders), and upon any such declaration the unpaid principal amount of such Notes, together with accrued and unpaid interest thereon through the date of acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity has been made and before a judgment or decree for payment of the money due has been obtained by the Indenture Trustee as hereinafter in this Article V provided, the Holders of Notes representing at least a majority of the Outstanding Amount of the Controlling Securities, by written notice to the Issuing Entity and the Indenture Trustee, may rescind and annul such declaration and its consequences if:
(i) the Issuing Entity has paid or deposited with the Indenture Trustee a sum sufficient to pay:
(A) all payments of principal of and interest on all Notes and all other amounts that would then be due hereunder or upon such Notes if the Event of Default giving rise to such acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the principal of the Notes that has become due solely by such acceleration, have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right consequent thereto.
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.
(a) The Issuing Entity covenants that if (i) an Event of Default specified in Section 5.01(i) has occurred and is continuing or (ii) an Event of Default specified in Section 5.01(ii) has occurred and is continuing, the Issuing Entity will, upon demand of the Indenture Trustee, pay to it, for the benefit of the Holders of the Notes, the whole amount then due and payable on such Notes for principal and interest, with interest on the overdue principal and, to the extent payment at such rate of interest shall be legally enforceable, on overdue installments of interest at the rate borne by the Notes and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and counsel.
(b) In case the Issuing Entity shall fail forthwith to pay such amounts upon such demand, the Indenture Trustee, in its own name and as trustee of an express trust, may institute a Proceeding for the collection of the sums so due and unpaid, and may prosecute such Proceeding to judgment or final decree, and may enforce the same against the Issuing Entity or other obligor upon such Notes and collect in the manner provided by law out of the property of the Issuing Entity or other obligor upon such Notes, wherever situated, the monies adjudged or decreed to be payable.
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(c) If an Event of Default occurs and is continuing, the Indenture Trustee may, as more particularly provided in Section 5.04, proceed to protect and enforce its rights and the rights of the Noteholders, by such appropriate Proceedings as the Indenture Trustee may deem necessary to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy or legal or equitable right vested in the Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuing Entity or any other obligor upon the Notes or any Person having or claiming an ownership interest in the Trust Estate, Proceedings under Title 11 of the United States Code or any other applicable federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, or liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuing Entity or its property or such other obligor or Person, or in case of any other comparable judicial Proceedings relative to the Issuing Entity or other obligor upon the Notes, or to the creditors or property of the Issuing Entity or such other obligor, the Indenture Trustee, irrespective of whether the principal of any Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Indenture Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Notes and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee (including any claim for reasonable compensation to the Indenture Trustee and each predecessor Indenture Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee, except as a result of negligence or bad faith) and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of Notes in any election of a trustee, a standby trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute all amounts received with respect to the claims of the Noteholders and of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee or the Holders of Notes allowed in any Proceedings relative to the Issuing Entity, its creditors and its property;
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and any trustee, receiver, liquidator, custodian or other similar official in any such Proceeding is hereby authorized by each of such Noteholders to make payments to the Indenture Trustee and, in the event that the Indenture Trustee shall consent to the making of payments directly to such Noteholders, to pay to the Indenture Trustee such amounts as shall be sufficient to cover reasonable compensation to the Indenture Trustee, each predecessor Indenture Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Indenture Trustee to vote in respect of the claim of any Noteholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Indenture Trustee without the possession of any of the Notes or the production thereof in any trial or other Proceedings relative thereto, and any such action or Proceedings instituted by the Indenture Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Indenture Trustee, each predecessor Indenture Trustee and their respective agents and attorneys, shall be for the ratable benefit of the Holders of the Notes.
(g) In any Proceedings brought by the Indenture Trustee (and also any Proceedings involving the interpretation of any provision of this Indenture to which the Indenture Trustee shall be a party), the Indenture Trustee shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any Noteholder a party to any such Proceedings.
Section 5.04 Remedies; Priorities.
(a) If an Event of Default shall have occurred and be continuing, the Indenture Trustee may, or at the direction of the holders of at least a majority of the Controlling Securities shall, do one or more of the following (subject to Section 5.05):
(i) institute Proceedings in its own name and as trustee of an express trust for the collection of all amounts then payable on the Notes or under this Indenture with respect thereto, whether by declaration or otherwise, enforce any judgment obtained and collect from the Issuing Entity and any other obligor upon such Notes monies adjudged due;
(ii) institute Proceedings from time to time for the complete or partial foreclosure of this Indenture with respect to the Trust Estate;
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(iii) exercise any remedies of a secured party under the UCC and take any other appropriate action to protect and enforce the rights and remedies of the Indenture Trustee and the Holders of the Notes; and
(iv) sell the Trust Estate or any portion thereof or rights or interest therein, at one or more public or private sales called and conducted in any manner permitted by law; provided, however, that the Indenture Trustee may not sell or otherwise liquidate the Trust Estate following an Event of Default, other than an Event of Default described in Section 5.01(i) or (ii), unless (A) the Holders of 100% of the Outstanding Amount of the Notes consent thereto, (B) the proceeds of such sale or liquidation distributable to the Noteholders are sufficient to discharge in full all amounts then due and unpaid upon such Notes for principal and interest or (C) the Indenture Trustee determines that the Trust Estate will not continue to provide sufficient funds for the payment of principal of and interest on the Notes as they would have become due if the Notes had not been declared due and payable, and the Indenture Trustee obtains the consent of Holders of not less than 66 2/3% of the Outstanding Amount of the Controlling Securities. In determining such sufficiency or insufficiency with respect to clauses (B) and (C), the Indenture Trustee may, but need not, obtain and rely upon an opinion of an Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant to this Article V, it shall deposit such money or property to the Collection Account as Collections to be applied pursuant to Article V of the Sale and Servicing Agreement.
The Indenture Trustee may fix a record date and payment date for any payment to Noteholders pursuant to this Section. At least 15 days before such record date, the Issuing Entity shall mail to each Noteholder and the Indenture Trustee a notice that states the record date, the payment date and the amount to be paid.
Section 5.05 Optional Preservation of the Receivables. If the Notes have been declared to be due and payable under Section 5.02 following an Event of Default and such declaration and its consequences have not been rescinded and annulled, the Indenture Trustee may, but need not, elect to maintain possession of the Trust Estate. It is the desire of the parties hereto and the Noteholders that there be at all times sufficient funds for the payment of principal of and interest on the Notes, and the Indenture Trustee shall take such desire into account when determining whether or not to maintain possession of the Trust Estate. In determining whether to maintain possession of the Trust Estate, the Indenture Trustee may, but need not, obtain and rely upon an opinion of an Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Trust Estate for such purpose.
Section 5.06 Limitation of Suits. No Holder of any Note shall have any right to institute any Proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, except in accordance with Section 3.02(c) of the Sale and Servicing Agreement, unless:
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(i) such Holder has previously given written notice to the Indenture Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the Outstanding Amount of the Controlling Securities have made written request to the Indenture Trustee to institute such Proceeding in respect of such Event of Default in its own name as Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute such Proceedings; and
(v) no direction inconsistent with such written request has been given to the Indenture Trustee during such 60-day period by the Holders of at least a majority of the Outstanding Amount of the Controlling Securities.
It is understood and intended that no one or more Holders of Notes shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Notes or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided.
Subject to Section 5.06(v), in the event the Indenture Trustee shall receive, in connection with Sections 5.06(ii) and (iii), conflicting or inconsistent requests and indemnity from two or more groups of Holders of Notes, each representing less than a majority of the Outstanding Amount of the Controlling Securities, the Indenture Trustee shall act at the direction of the group of Holders of Notes representing the greater Outstanding Amount of Controlling Securities. If the Indenture Trustee receives, in connection with this Section 5.06, conflicting or inconsistent requests and indemnity from two or more groups of Holders of Notes representing an equal Outstanding Amount of the Controlling Securities, the Indenture Trustee in its sole discretion may determine what action, if any, shall be taken, notwithstanding any other provisions of this Indenture.
Section 5.07 Unconditional Rights of Noteholders to Receive Principal and Interest. Notwithstanding any other provisions in this Indenture, the Holder of any Note shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Note on or after the respective due dates thereof expressed in such Note or in this Indenture (or, in the case of redemption, on or after the Redemption Date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.
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Section 5.08 Restoration of Rights and Remedies. If the Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any right or remedy under this Indenture and such Proceeding has been discontinued or abandoned for any reason or has been determined adversely to the Indenture Trustee or to such Noteholder, then and in every such case the Issuing Entity, the Indenture Trustee and the Noteholders shall, subject to any determination in such Proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders shall continue as though no such Proceeding had been instituted.
Section 5.09 Rights and Remedies Cumulative. No right or remedy herein conferred upon or reserved to the Indenture Trustee or to the Noteholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.10 Delay or Omission Not a Waiver. No delay or omission of the Indenture Trustee or any Holder of any Note to exercise any right or remedy accruing upon any Default or Event of Default shall impair any such right or remedy or constitute a waiver of any such Default or Event of Default or an acquiescence therein. Every right and remedy given by this Article V or by law to the Indenture Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
Section 5.11 Control by Noteholders. The Holders of at least a majority of the Outstanding Amount of the Controlling Securities shall have the right to direct the time, method and place of conducting any Proceeding for any remedy available to the Indenture Trustee with respect to the Notes or exercising any trust or power conferred on the Indenture Trustee; provided that:
(i) such direction shall not be in conflict with any rule of law or with this Indenture;
(ii) subject to the express terms of Section 5.04, any direction to the Indenture Trustee to sell or liquidate the Trust Estate shall be by Holders of Notes representing not less than 100% of the Outstanding Amount of the Controlling Securities;
(iii) if the conditions set forth in Section 5.05 have been satisfied and the Indenture Trustee elects to retain the Trust Estate pursuant to such Section, then any direction to the Indenture Trustee by Holders of Notes representing less than 100% of the Outstanding Amount of the Controlling Securities to sell or liquidate the Trust Estate shall be of no force and effect; and
(iv) the Indenture Trustee may take any other action deemed proper by the Indenture Trustee that is not inconsistent with such direction.
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Notwithstanding the rights of Noteholders set forth in this Section, subject to Section 6.01, the Indenture Trustee need not take any action that it determines might involve it in liability or might materially adversely affect the rights of any Noteholders not consenting to such action.
Section 5.12 Waiver of Past Defaults. Prior to the declaration of the acceleration of the maturity of the Notes as provided in Section 5.02, the Holders of Notes of at least a majority of the Outstanding Amount of the Controlling Securities may waive any past Default or Event of Default and its consequences except a Default (a) in payment of principal of or interest on any of the Notes or (b) in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each Note. In the case of any such waiver, the Issuing Entity, the Indenture Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured and not to have occurred, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereto.
Section 5.13 Undertaking for Costs. All parties to this Indenture agree, and each Holder of a Note by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Indenture Trustee for any action taken, suffered or omitted by it as Indenture Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and reasonable expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to (a) any suit instituted by the Indenture Trustee, (b) any suit instituted by any Noteholder, or group of Noteholders, in each case holding in the aggregate more than 10% of the Outstanding Amount of the Controlling Securities or (c) any suit instituted by any Noteholder for the enforcement of the payment of principal of or interest on any Note on or after the respective due dates expressed in such Note and in this Indenture (or, in the case of redemption, on or after the Redemption Date).
Section 5.14 Waiver of Stay or Extension Laws. The Issuing Entity covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuing Entity (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
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Section 5.15 Action on Notes. The Indenture Trustee’s right to seek and recover judgment on the Notes or under this Indenture shall not be affected by the seeking, obtaining or application of any other relief under or with respect to this Indenture. Neither the lien of this Indenture nor any rights or remedies of the Indenture Trustee or the Noteholders shall be impaired by the recovery of any judgment by the Indenture Trustee against the Issuing Entity or by the levy of any execution under such judgment upon any portion of the Trust Estate or upon any of the assets of the Issuing Entity. Any money or property collected by the Indenture Trustee shall be applied in accordance with Section 5.04(b).
Section 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so and at the Administrator’s expense, the Issuing Entity shall take all such lawful action as the Indenture Trustee may, in its discretion, or, at the direction of the Holders of a majority of the Outstanding Amount of the Controlling Securities, shall request to compel or secure the performance and observance by the Depositor or the Servicer, as applicable, of each of their obligations to the Issuing Entity under or in connection with the Sale and Servicing Agreement or by the Depositor or the Servicer, as applicable, of each of their obligations under or in connection with the Receivables Purchase Agreement, and to exercise any and all rights, remedies, powers and privileges lawfully available to the Issuing Entity under or in connection with the Sale and Servicing Agreement to the extent and in the manner directed by the Indenture Trustee, in its discretion or at the direction of the Holders of a majority of the Outstanding Amount of the Controlling Securities, including the transmission of notices of default under the Sale and Servicing Agreement on the part of the Depositor or the Servicer thereunder and the institution of legal or administrative actions or proceedings to compel or secure performance by the Depositor or the Servicer of each of their obligations under the Sale and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the Indenture Trustee may, and at the direction (which direction shall be in writing) of the Holders of 66 2/3% of the Outstanding Amount of the Controlling Securities shall, exercise all rights, remedies, powers, privileges and claims of the Issuing Entity against the Depositor or the Servicer under or in connection with the Sale and Servicing Agreement, or against the Depositor under or in connection with the Receivables Purchase Agreement, including the right or power to take any action to compel or secure performance or observance by the Depositor or the Servicer, of each of their obligations to the Issuing Entity thereunder and to give any consent, request, notice, direction, approval, extension or waiver under the Sale and Servicing Agreement or the Receivables Purchase Agreement, as the case may be, and any right of the Issuing Entity to take such action shall be suspended.
ARTICLE VI
The Indenture Trustee
Section 6.01 Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the Indenture Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
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(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Indenture Trustee and conforming to the requirements of this Indenture; however, in the case of certificates or opinions specifically required by any provision of this Indenture to be furnished to it, the Indenture Trustee shall examine the certificates and opinions to determine whether or not they conform on their face to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein).
(c) The Indenture Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this Section 6.01;
(ii) the Indenture Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it is proved that the Indenture Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 5.11.
(d) Every provision of this Indenture that in any way relates to the Indenture Trustee is subject to paragraphs (a), (b), (c) and (g) of this Section.
(e) The Indenture Trustee shall not be liable for interest on any money received by it except as the Indenture Trustee may agree in writing with the Issuing Entity.
(f) Money held in trust by the Indenture Trustee need not be segregated from other funds except to the extent required by law or the terms of this Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Indenture shall in any event require the Indenture Trustee to perform, or be responsible for the performance of, any of the obligations of the Servicer under this Indenture except during such time, if any, as the Indenture Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of the Servicer in accordance with the terms of this Indenture.
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(h) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provisions of this Section and to the provisions of the TIA.
(i) Subject to the other provisions of this Indenture and the Basic Documents, the Indenture Trustee shall have no duty (i) to see to any recording, filing, or depositing of this Indenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any re-recording, refiling or redepositing of any thereof, (ii) to see to any insurance or (iii) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Collateral.
(j) The Indenture Trustee shall not be charged with knowledge of any Default, Event of Default or breach of representation or warranty unless either (1) a Responsible Officer shall have actual knowledge of such Default, Event of Default or breach of representation or warranty or (2) written notice of such Default, Event of Default or breach of representation or warranty shall have been given to such Indenture Trustee in accordance with the provisions of this Indenture. For the avoidance of doubt, receipt by the Indenture Trustee of a Review Report shall not constitute actual knowledge of any breach of representation or warranty.
Section 6.02 Rights of Indenture Trustee.
(a) The Indenture Trustee may conclusively rely on any document believed by it to be genuine and to have been signed or presented by the proper person.
(b) Before the Indenture Trustee acts or refrains from acting, it may require an Officer’s Certificate of the Issuing Entity or an Opinion of Counsel. The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian or nominee, and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any such agent, attorney, custodian or nominee appointed with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers; provided, that the Indenture Trustee’s conduct does not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel of its own selection, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
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(f) The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture or to institute, conduct or defend any litigation hereunder or in relation hereto or to honor the request or direction of any of the Noteholders pursuant to this Indenture, unless such Noteholders shall have offered to the Indenture Trustee security or indemnity reasonably satisfactory to it against the reasonable costs, expenses, disbursements, advances and liabilities which might be incurred by it, its agents and its counsel in compliance with such request or direction, except with respect to requests, demands or directions relating to communications between Noteholders or Note Owners under Section 7.02(e) or an asset representations review demand under Section 7.05, in which case any such costs, expenses, disbursements, advances and liabilities which might be incurred by the Indenture Trustee, its agents and its counsel in compliance with such request or direction shall be subject to the Issuing Entity and Administrator’s compensation and indemnification obligations pursuant to Section 6.07.
(g) The Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by the Holders of Notes representing at least 25% of the Controlling Securities; provided that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require indemnity satisfactory to the Indenture Trustee in its reasonable discretion against such cost, expense or liability as a condition to taking any such action. In no event shall the Indenture Trustee have any responsibility to monitor World Omni’s compliance with or be charged with knowledge of the Credit Risk Retention Rules, nor shall it be liable to any Noteholder, Certificateholder, or any party whatsoever for violation of such rules or requirements or such similar provisions now or hereafter in effect.
(h) The right of the Indenture Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Indenture Trustee shall not be answerable for other than its willful misconduct, negligence or bad faith in the performance of such act.
(i) The rights, privileges, protections, immunities and benefits given to the Indenture Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Indenture Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(j) In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer systems and services; it being understood that the Indenture Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
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(k) In no event shall the Trustee be personally liable (i) for special, consequential, indirect or punitive damages, (ii) for the acts or omissions of its nominees, correspondents, clearing agencies or securities depositories and (iii) for the acts or omissions of brokers or dealers.
(l) In no event shall the Indenture Trustee be liable for the failure to perform its duties hereunder if such failure is a direct or proximate result of another party's failure to perform its obligations hereunder.
Section 6.03 Individual Rights of Indenture Trustee. The Indenture Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuing Entity or its Affiliates with the same rights it would have if it were not Indenture Trustee. Any Paying Agent, Note Registrar, co-registrar or co-paying agent may do the same with like rights. However, the Indenture Trustee must comply with Sections 6.11 and 6.12.
Section 6.04 Indenture Trustee’s Disclaimer. The Indenture Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuing Entity’s use of the proceeds from the Notes, and it shall not be responsible for any statement of the Issuing Entity in the Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Indenture Trustee’s certificate of authentication.
Section 6.05 Notice of Defaults. If a Default occurs and is continuing and if it is actually known to a Responsible Officer of the Indenture Trustee, the Indenture Trustee shall mail to each Noteholder notice of the Default within 90 days after it occurs. Except in the case of a Default in payment of principal of or interest on any Note (including payments pursuant to the mandatory redemption provisions of such Note), the Indenture Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Noteholders.
Section 6.06 Reports by Indenture Trustee. The Indenture Trustee shall deliver to each Noteholder such information as may be required to enable such holder to prepare its federal and state income tax returns. On or before each Payment Date, the Indenture Trustee will post a copy of the statement or statements provided to the Indenture Trustee by the Servicer pursuant to Section 5.08 of the Sale and Servicing Agreement with respect to the applicable Payment Date on its internet website promptly following its receipt thereof, for the benefit of the Noteholders. The Indenture Trustee’s internet website shall initially be located at “http://usbank.com/abs”. Assistance in using the website can be obtained by calling the Indenture Trustee’s customer service desk at (800) 934-6802. The Indenture Trustee may change the way the statements and information are posted or distributed in order to make such distribution more convenient and/or accessible for such Noteholders, and the Indenture Trustee shall provide on the website timely and adequate notification to all parties regarding any such change.
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Section 6.07 Compensation and Indemnity. The Issuing Entity shall, or shall cause the Administrator to, pursuant to the Administration Agreement, pay to the Indenture Trustee from time to time reasonable compensation for its services. The Indenture Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuing Entity shall, or shall cause the Administrator to, reimburse the Indenture Trustee for all reasonable and documented out-of-pocket expenses incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable and documented compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts; provided, that, reimbursement for expenses and disbursements of any legal counsel to the Indenture Trustee shall be subject to any limitations separately agreed upon before the date hereof between the Administrator and the Indenture Trustee. The Issuing Entity shall, or shall cause the Administrator to, pursuant to the Administration Agreement, indemnify the Indenture Trustee against any and all loss, liability, claim, damage or expense (including reasonable and documented legal fees and expenses and including, without limitation, any legal fees, costs and expenses incurred in connection with any enforcement (including any action, claim or suit brought) by the Indenture Trustee of any indemnification or other obligation of the Issuing Entity or the Administrator) incurred by it in connection with the administration of this trust and the performance of its duties hereunder. The Indenture Trustee shall notify the Issuing Entity and the Administrator promptly of any claim of which the Indenture Trustee has received written notice for which it may seek indemnity. Failure by the Indenture Trustee to so notify the Issuing Entity and the Administrator shall not relieve the Issuing Entity or the Administrator of its obligations hereunder. The Issuing Entity shall, or shall cause the Administrator to, defend any such claim, and the Indenture Trustee may have separate counsel and the Issuing Entity shall, or shall cause the Administrator to, pay the fees and expenses of such counsel. Neither the Issuing Entity nor the Administrator need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustee’s own willful misconduct, negligence or bad faith.
The Issuing Entity’s payment obligations to the Indenture Trustee pursuant to this Section shall survive the resignation or removal of the Indenture Trustee and the discharge of this Indenture. When the Indenture Trustee incurs expenses after the occurrence of a Default specified in Section 5.01(iv) or (v) with respect to the Issuing Entity, the expenses are intended to constitute expenses of administration under Title 11 of the United States Code or any other applicable federal or state bankruptcy, insolvency or similar law.
Section 6.08 Replacement of Indenture Trustee. No resignation or removal of the Indenture Trustee and no appointment of a successor Indenture Trustee shall become effective until the acceptance of appointment by the successor Indenture Trustee pursuant to this Section 6.08. The Indenture Trustee may resign at any time with thirty days' prior written notice by so notifying the Issuing Entity. The Indenture Trustee shall resign following the occurrence of an Event of Default if required by Section 3.10 of the TIA. The Indenture Trustee shall bear all costs and expenses of locating and procuring the written acceptance by a qualified successor Indenture Trustee within 90 days of such Event of Default. The Holders of at least a majority of the Outstanding Amount of the Controlling Securities may remove the Indenture Trustee by so notifying the Indenture Trustee and the Depositor and may appoint a successor Indenture Trustee. The Issuing Entity shall remove the Indenture Trustee if:
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(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the office of Indenture Trustee for any reason (the Indenture Trustee in such event being referred to herein as the retiring Indenture Trustee), the Issuing Entity shall promptly appoint a successor Indenture Trustee and notify the Depositor of such appointment.
A successor Indenture Trustee shall deliver a written acceptance of its appointment to the retiring Indenture Trustee, the Issuing Entity. Thereupon the resignation or removal of the retiring Indenture Trustee shall become effective, and the successor Indenture Trustee shall have all the rights, powers and duties of the Indenture Trustee under this Indenture. The successor Indenture Trustee shall mail a notice of its succession to Noteholders. The retiring Indenture Trustee shall promptly transfer all property held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days after the retiring Indenture Trustee resigns or is removed, the retiring Indenture Trustee, the Issuing Entity or the Holders of at least a majority of the Outstanding Amount of the Controlling Securities may, at the expense of the Issuing Entity, petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any Noteholder may petition any court of competent jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this Section, the Issuing Entity’s and the Administrator’s obligations under Section 6.07 shall continue for the benefit of the retiring Indenture Trustee.
Section 6.09 Successor Indenture Trustee by Merger. If the Indenture Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Indenture Trustee; provided, that such corporation or banking association shall be otherwise qualified and eligible under Section 6.11. The Indenture Trustee shall provide the Depositor (who shall promptly provide such notice to the Rating Agencies) prior written notice of any such transaction.
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In case at the time such successor or successors by merger, conversion or consolidation to the Indenture Trustee shall succeed to the trusts created by this Indenture any of the Notes shall have been authenticated but not delivered, any such successor to the Indenture Trustee may adopt the certificate of authentication of any predecessor trustee and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Indenture Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Indenture Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Indenture Trustee shall have.
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any part of the Trust Estate may at the time be located, the Indenture Trustee shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as a co-trustee or co-trustees, or separate trustee or separate trustees, of all or any part of the Trust, and to vest in such Person or Persons, in such capacity and for the benefit of the Noteholders, such title to the Trust Estate, or any part hereof, and, subject to the other provisions of this Section, such powers, duties, obligations, rights and trusts as the Indenture Trustee may consider necessary or desirable. No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 6.11 and no notice to Noteholders of the appointment of any co-trustee or separate trustee shall be required under Section 6.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed upon the Indenture Trustee shall be conferred or imposed upon and exercised or performed by the Indenture Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Indenture Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Indenture Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Estate or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee.
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(c) Any notice, request or other writing given to the Indenture Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture and the conditions of this Article VI. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Indenture Trustee or separately, as may be provided therein, subject to all the provisions of this Indenture, specifically including every provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection to, the Indenture Trustee. Every such instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the Indenture Trustee, its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Indenture on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Indenture Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
Section 6.11 Eligibility; Disqualification. The Indenture Trustee shall at all times satisfy the requirements of TIA § 310(a). The Indenture Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition, and the time deposits of the Indenture Trustee shall be rated at least A-1 by S&P Global Ratings and F1 by Fitch. The Indenture Trustee shall comply with TIA § 310(b), including the optional provision permitted by the second sentence of TIA § 310(b)(9); provided, however, that there shall be excluded from the operation of TIA § 310(b)(1) any indenture or indentures under which other securities of the Issuing Entity are outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are met.
Section 6.12 Preferential Collection of Claims Against Issuing Entity. The Indenture Trustee shall comply with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). An Indenture Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.
Section 6.13 Representations and Warranties of the Indenture Trustee. The Indenture Trustee hereby makes the following representations and warranties on which the Issuing Entity and Noteholders shall rely:
(a) the Indenture Trustee is a national banking association duly organized, validly existing under the laws of the jurisdiction of its formation;
(b) the Indenture Trustee has full power, authority and legal right to execute, deliver, and perform this Indenture and shall have taken all necessary action to authorize the execution, delivery and performance by it of this Indenture;
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(c) the execution, delivery and performance by the Indenture Trustee of this Indenture (i) shall not violate any provision of any law or regulation governing the banking and trust powers of the Indenture Trustee or any order, writ, judgment or decree of any court, arbitrator, or governmental authority applicable to the Indenture Trustee or any of its assets, (ii) shall not violate any provision of the corporate charter or by-laws of the Indenture Trustee and (iii) shall not violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of any lien on any properties included in the Trust Estate pursuant to the provisions of any mortgage, indenture, contract, agreement or other undertaking to which it is a party, which violation, default or lien could reasonably be expected to have a materially adverse effect on the Indenture Trustee’s performance or ability to perform its duties under this Indenture or on the transactions contemplated in this Indenture;
(d) no consent, license, approval or authorization of, or filing or registration with, any governmental authority, bureau or agency is required to be obtained that has not been obtained by the Indenture Trustee in connection with the execution, delivery or performance by the Indenture Trustee of the Basic Documents; and
(e) this Indenture has been duly executed and delivered by the Indenture Trustee and constitutes the legal, valid and binding agreement of the Indenture Trustee, enforceable in accordance with its terms.
Section 6.14 Communications Regarding Demands to Repurchase Receivables. The Indenture Trustee shall provide prompt notice to World Omni and the Depositor of all demands received by a Responsible Officer of the Indenture Trustee for the repurchase or replacement of any Receivable for breach of the representations and warranties concerning such Receivable. The Indenture Trustee shall, upon written request and at the sole cost and expense of either World Omni or the Depositor, provide (x) notification to World Omni and the Depositor with respect to any actions taken by the Indenture Trustee or determinations made by the Indenture Trustee, in each case with respect to any such demand communicated to the Indenture Trustee in respect of any Receivables, and (y) any other records or information reasonably requested by World Omni or the Depositor, as applicable, that is in the Indenture Trustee’s possession and reasonably accessible to it, such notifications to be provided by the Indenture Trustee as soon as practicable and in any event within five (5) Business Days of such request or such other time frame as may be mutually agreed to by the Indenture Trustee and World Omni or the Depositor, as applicable. Such notices shall be provided to World Omni and the Depositor at: (a) in the case of World Omni, World Omni Financial Corp., 190 Jim Moran Boulevard, Deerfield Beach, Florida 33442, Telecopy: (954) 429-2685, Attention: Treasurer, and (b) in the case of the Depositor, to World Omni Auto Receivables LLC, 190 Jim Moran Boulevard, Deerfield Beach, Florida 33442, Telecopy: (954) 429-2685, Attention: Treasurer, or at such other address or by such other means of communication as may be specified by World Omni or the Depositor to the Indenture Trustee from time to time. The Indenture Trustee and the Issuing Entity acknowledge and agree that the purpose of this Section 6.14 is to facilitate compliance by World Omni and the Depositor with Rule 15Ga-1 under the Exchange Act, as amended, and Items 1104(e) and 1121(c) of Regulation AB (the “Repurchase Rules and Regulations”). The Indenture Trustee acknowledges that interpretations of the requirements of the Repurchase Rules and Regulations may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees to comply with reasonable requests made by World Omni and the Depositor in good faith for delivery of information under these provisions on the basis of evolving interpretations of the Repurchase Rules and Regulations. The Indenture Trustee shall cooperate fully with World Omni and the Depositor to deliver any and all records and any other information necessary in the good faith determination of World Omni and the Depositor to permit them to comply with the provisions of Repurchase Rules and Regulations. In no event shall the Indenture Trustee have any responsibility or liability in connection with any filing required to be made by a securitizer under the Exchange Act or Regulation AB, nor shall the Indenture Trustee have any duty or obligation to undertake any investigation or inquiry related to repurchase activity or otherwise to assume any additional duties or responsibilities in respect of the Indenture or the Sale and Servicing Agreement or the transactions contemplated thereby, other than any express duties or obligations as Indenture Trustee under this Indenture.
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ARTICLE VII
Noteholders’ Lists and Reports
Section 7.01 Issuing Entity to Furnish Indenture Trustee Names and Addresses of Noteholders. The Issuing Entity will furnish or cause to be furnished to the Indenture Trustee (a) not more than five days after the earlier of (i) each Record Date and (ii) three months after the last Record Date, a list, in such form as the Indenture Trustee may reasonably require, of the names and addresses of the Holders of Notes as of such Record Date, and (b) at such other times as the Indenture Trustee may request in writing, within 30 days after receipt by the Issuing Entity of any such request, a list of similar form and content as of a date not more than 10 days prior to the time such list is furnished; provided, however, that so long as the Indenture Trustee is the Note Registrar, no such lists shall be required to be furnished.
Section 7.02 Preservation of Information; Communications to Noteholders; Noteholder Communications with Indenture Trustee; Communications between Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of the Holders of Notes contained in the most recent list furnished to the Indenture Trustee as provided in Section 7.01 and the names and addresses of Holders of Notes received by the Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy any list furnished to it as provided in such Section 7.01 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA § 312(b) with other Noteholders with respect to their rights under this Indenture or under the Notes.
(c) The Issuing Entity, the Indenture Trustee and the Note Registrar shall have the protection of TIA § 312(c).
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(d) Noteholder Communications with Indenture Trustee. A Noteholder (if the Notes are represented by Definitive Notes) or a Note Owner (if the Notes are represented by Book-Entry Notes) may communicate with the Indenture Trustee and give notices and make requests and demands and give directions to the Indenture Trustee through the procedures of the Clearing Agency and by notice to the Indenture Trustee. Any Note Owner must provide a written certification stating that the Note Owner is a beneficial owner of a Note, together with supporting documentation such as a trade confirmation, an account statement, a letter from a broker or dealer verifying ownership or another similar document evidencing ownership of a Note, upon which the Indenture Trustee may conclusively rely. The Indenture Trustee will not be required to take action in response to requests, demands or directions of a Noteholder or a Note Owner, unless such Noteholder or Note Owner shall have offered to the Indenture Trustee security or indemnity reasonably satisfactory to it against the reasonable costs, expenses, disbursements, advances and liabilities which might be incurred by it, its agents and its counsel in compliance with such request, demand or direction, except with respect to requests, demands or directions relating to communications between Noteholders or Note Owners under Section 7.02(e) or an asset representations review demand under Section 7.05, in which case any such costs, expenses, disbursements, advances and liabilities which might be incurred by the Indenture Trustee, its agents and its counsel in compliance with such request or direction shall be subject to the Issuing Entity and Administrator’s compensation and indemnification obligations pursuant to Section 6.07. The Indenture Trustee shall provide the Seller, the Servicer and the Issuing Entity with notice, as soon as practicable and in any event within five (5) Business Days, of receipt of any requests by any Noteholder or Note Owner to communicate with other Noteholders or Note Owners pursuant to Section 7.02(e) or any requests to repurchase a Receivable as the result of a breach of a representation or warranty pursuant to the Sale and Servicing Agreement.
(e) Communications between Noteholders. A Noteholder (if the Notes are represented by Definitive Notes) or a Note Owner (if the Notes are represented by Book-Entry Notes) that seeks to communicate with other Noteholders or Note Owners, as applicable, about a possible exercise of rights under this Indenture or the other Basic Documents may send a written request to the Administrator on behalf of the Issuing Entity or the Servicer to include information regarding the communication in a Form 10-D to be filed by the Servicer, on behalf of the Issuing Entity, with the Commission. Each request must include (i) the name of the requesting Noteholder (in the case of any Definitive Note) or Note Owner (in the case of any Book-Entry Note), (ii) the method by which other Noteholders and Note Owners may contact the requesting Noteholder or Note Owner and (iii) in the case of a Note Owner, a certification from that Person that it is a Note Owner, together with at least one form of documentation evidencing its ownership of a Note, which may be a trade confirmation, account statement, letter from a broker or dealer or similar document. A Noteholder or Note Owner that delivers a request under this Section 7.02(e) will be deemed to have certified to the Issuing Entity and the Servicer that its request to communicate with other Noteholders or Note Owners relates solely to a possible exercise of rights under this Indenture or the other Basic Documents, and will not be used for other purposes. The Issuing Entity will promptly deliver any such request to the Servicer. On receipt of such a request, the Servicer will include in the Form 10-D filed by the Issuing Entity with the Commission for the Collection Period in which the request was received (A) a statement that the Issuing Entity has received a request from a Noteholder or Note Owner, as applicable, that is interested in communicating with other Noteholders or Note Owners about a possible exercise of rights under this Indenture or the other Basic Documents, (B) the name of the requesting Noteholder or Note Owner, (C) the date the request was received and (D) a description of the method by which the other Noteholders or Note Owners may contact the requesting Noteholder or Note Owner. The Servicer will bear any costs associated with including any such communication in the Form 10-D and each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, shall be required to agree that such requesting Noteholder or Note Owner will pay any costs associated with communicating with other Noteholders or Note Owners, and none of the Seller, the Asset Representations Reviewer, the Servicer, the Depositor, the Issuing Entity, the Administrator, the Indenture Trustee or the Owner Trustee will be responsible for such costs (for the avoidance of doubt, this sentence shall not limit the Issuing Entity or Administrator’s obligations to the Indenture Trustee pursuant to Sections 6.02(f) or 7.02(d)).
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Section 7.03 Reports by Issuing Entity.
(a) The Issuing Entity shall:
(i) file with the Indenture Trustee, within 15 days after the Issuing Entity is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) that the Issuing Entity may be required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in accordance with rules and regulations prescribed from time to time by the Commission such additional information, documents and reports with respect to compliance by the Issuing Entity with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations;
(iii) supply to the Indenture Trustee (and the Indenture Trustee shall transmit to The Depository Trust Company, on behalf of the Noteholders as described in TIA § 313(c)) such summaries of any information, documents and reports required to be filed by the Issuing Entity pursuant to clauses (i) and (ii) of this Section 7.03(a) and by rules and regulations prescribed from time to time by the Commission; and
(iv) delivery of such reports, information and documents to the Indenture Trustee is for informational purposes only and the Indenture Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuing Entity’s compliance with any of its covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officers’ Certificates).
(b) Unless the Issuing Entity otherwise determines, the fiscal year of the Issuing Entity shall end on December 31 of each year.
Section 7.04 Reports by Indenture Trustee. If required by TIA § 313(a), within 60 days after each February 1, beginning with February 1, 2018, the Indenture Trustee shall make available to each Noteholder as required by TIA § 313(c) a brief report dated as of such date that complies with TIA § 313(a). The Indenture Trustee also shall comply with TIA § 313(b). A copy of each report at the time of its transmission to Noteholders shall be filed by the Indenture Trustee with the Commission and each stock exchange, if any, on which the Notes are listed. The Issuing Entity shall notify the Indenture Trustee if and when the Notes are listed on any stock exchange or delisted therefrom.
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Section 7.05 Noteholder Demand for Asset Representations Review.
(a) If the Delinquency Percentage for any Payment Date exceeds the Delinquency Trigger, a Noteholder (if the Notes are represented by Definitive Notes) or a Note Owner (if the Notes are represented by Book-Entry Notes) may make a demand on the Indenture Trustee to cause a vote of the Noteholders or Note Owners, as applicable, about whether to direct the Asset Representations Reviewer to conduct a Review of the Review Receivables under the Asset Representations Review Agreement. In the case of a Note Owner, each demand and vote must be accompanied by a certification from that Person that it is a Note Owner, together with at least one form of documentation evidencing its ownership of a Note, which may include a trade confirmation, account statement, letter from a broker or dealer or similar document, upon which the Indenture Trustee may conclusively rely. If Noteholders and Note Owners that collectively hold Notes evidencing at least 5% of the aggregate Outstanding Amount of the Notes as of the date of filing the Form 10-D that disclosed that the Delinquency Percentage for the related Payment Date exceeds the Delinquency Trigger demand a vote within 90 days of the filing of such Form 10-D, the Indenture Trustee will promptly request a vote of the Noteholders and Note Owners as described in Section 7.05(b) below; provided, that for the purpose of determining the holders of the Notes Outstanding, any Notes held by World Omni or any of its Affiliates shall not be included in such calculation.
(b) Upon the direction of the requisite Noteholders or Note Owners set forth in Section 7.05(a), the Indenture Trustee shall conduct a vote of all Noteholders in accordance with the Indenture Trustee’s standard vote solicitation process (if the Notes are represented by Definitive Notes) and shall cause a vote to be conducted in accordance with applicable Depository Trust Company procedures of all Note Owners (if the Notes are represented by Book-Entry Notes). The Indenture Trustee shall provide to the Servicer, to the extent available from the Depository Trust Company, if applicable, the voting instructions and procedures applicable to the Noteholders and Note Owners to be included in the Form 10-D filed by the Issuing Entity with the Commission. Such Form 10-D will also include a statement that sufficient Noteholders and Note Owners are requesting a full Noteholder vote to commence a Review and will describe the applicable voting deadline. Each Noteholder and Note Owner that elects to vote shall vote on the issue of whether or not the Asset Representations Reviewer should be directed to conduct a Review. The vote will remain open until the 150th day after the filing of the Form 10-D reporting that the Delinquency Percentage for the related Payment Date exceeds the Delinquency Trigger.
(c) If Noteholders holding at least 5% of the aggregate Outstanding Amount of the Notes participate in such vote, and Noteholders representing a majority of the Outstanding Amount of such Notes vote for a Review, the Indenture Trustee will promptly send a Review Notice to the Asset Representations Reviewer, the Issuing Entity and the Servicer notifying the Asset Representations Reviewer that the Noteholders have requested the Review.
(d) The Indenture Trustee shall cooperate with the Asset Representations Reviewer in the event a Review is commenced pursuant to this Section 7.05 and shall provide the Asset Representations Reviewer with any documents or other information in its possession and requested by the Asset Representations Reviewer in connection with the Review. The Indenture Trustee shall have no obligation to obtain missing information from any other party or source.
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(e) For the avoidance of doubt, the Indenture Trustee shall not be required to (i) give notice to Noteholders that or determine whether the Delinquency Percentage for any Payment Date exceeds the Delinquency Trigger or (ii) determine which assets are subject to Review by the Asset Representations Reviewer.
ARTICLE VIII
Accounts, Disbursements and Releases
Section 8.01 Collection of Money. Except as otherwise expressly provided herein, the Indenture Trustee may demand payment or delivery of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all money and other property payable to or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture Trustee shall apply all such money received by it as provided in this Indenture. Except as otherwise expressly provided in this Indenture, if any default occurs in the making of any payment or performance under any agreement or instrument that is part of the Trust Estate, the Indenture Trustee may take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate Proceedings. Any such action shall be without prejudice to any right to claim a Default or Event of Default under this Indenture and any right to proceed thereafter as provided in Article V.
Section 8.02 Trust Accounts.
(a) On or prior to the Closing Date, the Issuing Entity shall cause the Servicer to establish and maintain with and in the name of the Indenture Trustee, for the benefit of the Noteholders and the Certificateholders, the Trust Accounts as provided in Section 5.01 of the Sale and Servicing Agreement.
(b) On or before each Payment Date, the Indenture Trustee shall make all withdrawals and deposits to the Collection Account, Note Distribution Account and Reserve Account and shall make all distributions to Certificateholders in accordance with Sections 5.06 and 5.07 of the Sale and Servicing Agreement.
(c) Except as otherwise provided in paragraphs (d), and (e) below, on each Payment Date and Redemption Date, the Indenture Trustee shall distribute all amounts on deposit in the Note Distribution Account, other than amounts deposited in the Note Distribution Account pursuant to Section 5.01(d) of the Sale and Servicing Agreement, and allocated pursuant to Section 5.06 of the Sale and Servicing Agreement to Noteholders in respect of the Notes to the extent of amounts due and unpaid on the Notes for principal and interest (including any premium) in the following amounts:
(i) to the Holders of Class A Notes, all amounts allocated to such Holders in respect of interest on the Class A Notes pro rata based upon the aggregate amount of accrued and unpaid interest due and payable to the Holders of such Notes;
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(ii) to the Holders of the Class B Notes, all amounts allocated to such Holders in respect of interest on the Class B Notes;
(iii) to the Holders of the Class A Notes and the Class B Notes, all amounts allocated to such Holders in respect of principal on the Notes will be paid to the Holders of the Class A Notes and Class B Notes in the following order of priority:
(A) to the Class A-1 Notes until they are paid in full; then
(B) to the Class A-2 Notes pro rata to the Class A-2a Notes and the Class A-2b Notes based upon the aggregate Outstanding Amount of such Class until they are paid in full; then
(C) to the Class A-3 Notes until they are paid in full; then
(D) to the Class A-4 Notes until they are paid in full; and then
(E) to the Class B Notes until they are paid in full.
In addition, on the Final Scheduled Payment Date for any Class of Notes, if the Outstanding Amount of any Class of Notes remains greater than zero, the Indenture Trustee shall apply funds from the Reserve Account to repay the Outstanding Amount of such Class of Notes in full.
(d) In the event the Notes are declared to be due and payable following the occurrence of an Event of Default pursuant to Section 5.01(i) or (ii), the Indenture Trustee shall distribute all amounts on deposit in the Note Distribution Account and allocated pursuant to Section 5.06 of the Sale and Servicing Agreement to Noteholders in the following order of priority: (i) to the Holders of the Class A Notes, all amounts allocated to such Holders in respect of interest on the Class A Notes pro rata based upon the aggregate amount of accrued and unpaid interest due and payable to the Holders of such Notes; (ii) to the Holders of the Class A Notes, all amounts allocated to such Holders in respect of principal on the Class A Notes, first to the Holders of the Class A-1 Notes until the Outstanding Amount of the Class A-1 Notes is reduced to zero, then to the Holders of the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, pro rata based upon the Outstanding Amount due and payable to the Holders of such Notes; (iii) to the Holders of the Class B Notes, all amounts allocated to such Holders in respect of interest on the Class B Notes; and (iv) to the Holders of the Class B Notes, all amounts allocated to such Holders in respect of principal on the Class B Notes. If the Outstanding Amount of any Class of Notes remains greater than zero after application of clauses (i), (ii), (iii) and (iv) above, the Indenture Trustee shall apply funds from the Reserve Account in the same order of priority as described above to repay the Outstanding Amount of such Class of Notes in full.
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(e) In the event the Notes are declared to be due and payable following the occurrence of an Event of Default other than pursuant to Sections 5.01(i) or (ii), the Indenture Trustee shall distribute all amounts on deposit in the Note Distribution Account and allocated pursuant to Section 5.06 of the Sale and Servicing Agreement to Noteholders in the following order of priority: (i) to the Holders of the Class A Notes, all amounts allocated to such Holders in respect of interest on the Class A Notes pro rata based upon the aggregate amount of accrued and unpaid interest due and payable to the Holders of such Notes; (ii) to the Holders of the Class B Notes, all amounts allocated to such Holders in respect of interest on the Class B Notes; (iii) to the Holders of the Class A Notes, all amounts allocated to such Holders in respect of principal on the Class A Notes, first to the Holders of the Class A-1 Notes until the Outstanding Amount of the Class A-1 Notes is reduced to zero, then to the Holders of the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, pro rata based upon the Outstanding Amount due and payable to the Holders of such Notes; and (iv) to the Holders of the Class B Notes, all amounts allocated to such Holders in respect of principal on the Class B Notes.
Section 8.03 General Provisions Regarding Accounts.
(a) So long as no Default or Event of Default shall have occurred and be continuing, all or a portion of the funds in the Trust Accounts shall be invested in Eligible Investments and reinvested by the Indenture Trustee subject to the provisions of Section 5.01(b) of the Sale and Servicing Agreement. All income or other gain from investments of monies deposited in the Trust Accounts shall be deposited by the Indenture Trustee in the Collection Account, and any loss resulting from such investments shall be charged to such account. The Issuing Entity will not direct the Indenture Trustee to make any investment of any funds or to sell any investment held in any Trust Account unless the security interest Granted and perfected in such account will continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Indenture Trustee to make any such investment or sale, if requested by the Indenture Trustee, the Issuing Entity shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. The Issuing Entity further understands that trade confirmations for securities transactions effected by the Indenture Trustee will be available upon request and at no additional cost and other trade confirmations may be obtained from the applicable broker.
(b) Subject to Section 6.01(c), the Indenture Trustee shall not in any way be held liable by reason of any insufficiency in any of the Trust Accounts resulting from any loss on any Eligible Investment included therein except for losses attributable to the Indenture Trustee’s failure to make payments on such Eligible Investments issued by the Indenture Trustee, in its commercial capacity as principal obligor and not as trustee, in accordance with their terms.
(c) If (i) the Issuing Entity (or the Servicer) shall have failed to give investment directions for any funds on deposit in the Trust Accounts to the Indenture Trustee by such time as may be agreed by the Issuing Entity and Indenture Trustee on any Business Day, (ii) a Default or Event of Default shall have occurred and be continuing with respect to the Notes but the Notes shall not have been declared due and payable pursuant to Section 5.02 or (iii) if such Notes shall have been declared due and payable following an Event of Default but amounts collected or receivable from the Trust Estate are being applied in accordance with Section 5.05 as if there had not been such a declaration, then the Indenture Trustee shall, to the fullest extent practicable, invest and reinvest funds in the Trust Accounts in Eligible Investments (as defined in the Sale and Servicing Agreement) specified in clause (i) of the definition thereof.
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Section 8.04 Release of Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to Section 6.07, the Indenture Trustee may, and when required by the provisions of this Indenture shall, execute instruments to release property from the lien of this Indenture, or convey the Indenture Trustee’s interest in the same, in a manner and under circumstances that are not inconsistent with the provisions of this Indenture. No party relying upon an instrument executed by the Indenture Trustee as provided in this Article VIII shall be bound to ascertain the Indenture Trustee’s authority, inquire into the satisfaction of any conditions precedent or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as there are no Notes Outstanding and all sums due the Indenture Trustee pursuant to Section 6.07 have been paid, release any remaining portion of the Trust Estate that secured the Notes from the lien of this Indenture and release to the Issuing Entity or any other Person entitled thereto any funds then on deposit in the Trust Accounts. The Indenture Trustee shall release property from the lien of this Indenture pursuant to this Section 8.04(b) only upon receipt of an Issuing Entity Request accompanied by an Officer’s Certificate of the Issuing Entity, an Opinion of Counsel and (if required by the TIA) Independent Certificates in accordance with TIA §§ 314(c) and 314(d)(1) meeting the applicable requirements of Section 11.01.
Section 8.05 Opinion of Counsel. The Indenture Trustee shall receive at least seven days’ notice when requested by the Issuing Entity to take any action pursuant to Section 8.04(a), accompanied by copies of any instruments involved, and the Indenture Trustee shall also require, as a condition to such action, an Opinion of Counsel, in form and substance satisfactory to the Indenture Trustee, stating the legal effect of any such action, outlining the steps required to complete the same, and concluding that all conditions precedent to the taking of such action have been complied with and such action will not materially and adversely impair the security for the Notes or the rights of the Noteholders in contravention of the provisions of this Indenture; provided, however, that such Opinion of Counsel shall not be required to express an opinion as to the fair value of the Trust Estate. Counsel rendering any such opinion may rely, without independent investigation, on the accuracy and validity of any certificate or other instrument delivered to the Indenture Trustee in connection with any such action.
ARTICLE IX
Supplemental Indentures
Section 9.01 Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes but with prior notice to the Rating Agencies, the Issuing Entity and the Indenture Trustee, when authorized by an Issuing Entity Order, at any time and from time to time, may enter into one or more indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force at the date of the execution thereof), in form satisfactory to the Indenture Trustee, for any of the following purposes:
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(i) to correct or amplify the description of any property at any time subject to the lien of this Indenture, or better to assure, convey and confirm unto the Indenture Trustee any property subject or required to be subjected to the lien of this Indenture, or to subject to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable provisions hereof, of another person to the Issuing Entity, and the assumption by any such successor of the covenants of the Issuing Entity herein and in the Notes contained;
(iii) to add to the covenants of the Issuing Entity, for the benefit of the Holders of the Notes, or to surrender any right or power herein conferred upon the Issuing Entity;
(iv) to convey, transfer, assign, mortgage or pledge any property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision herein or in any supplemental indenture that may be inconsistent with any other provision herein or in any supplemental indenture or to make any other provisions with respect to matters or questions arising under this Indenture or in any supplemental indenture; provided, that such action, as evidenced by an Officer’s Certificate of the Servicer, shall not adversely affect the interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the appointment hereunder by a successor trustee with respect to the Notes and to add to or change any of the provisions of this Indenture as shall be necessary to facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Article VI;
(vii) to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of this Indenture under the TIA or under any similar federal statute hereafter enacted and to add to this Indenture such other provisions as may be expressly required by the TIA; or
(viii) to correct any manifest error with the terms of this Indenture as compared to the terms set forth in the Final Prospectus.
The Indenture Trustee is hereby authorized to join in the execution of any such supplemental indenture and to make any further appropriate agreements and stipulations that may be therein contained.
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(b) The Issuing Entity and the Indenture Trustee, when authorized by an Issuing Entity Order, may, also without the consent of any of the Holders of the Notes, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or of modifying in any manner the rights of the Holders of the Notes under this Indenture; provided that such amendments require: (i) satisfaction of the Rating Agency Condition or (ii) an Officer’s Certificate of the Servicer stating that the amendment will not materially and adversely affect the interest of any Noteholder.
(c) Notwithstanding anything in this Indenture to the contrary, no supplemental indenture shall be effective without the prior written consent of the Asset Representations Reviewer if the supplemental indenture would adversely modify the amount or timing of distributions to be made to the Asset Representations Reviewer under this Indenture. The Indenture Trustee shall have no responsibility for determining whether any supplemental indenture would adversely modify the amount or timing of distributions to be made to the Asset Representations Reviewer under this Indenture.
Section 9.02 Supplemental Indentures with Consent of Noteholders.
(a) The Issuing Entity and the Indenture Trustee, when authorized by an Issuing Entity Order, also may, with prior notice to the Rating Agencies and with the consent of the Holders of at least a majority of the Outstanding Amount of the Controlling Securities, by Act of such Holders delivered to the Issuing Entity and the Indenture Trustee, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or of modifying in any manner the rights of the Holders of the Notes under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Note affected thereby:
(i) change the date of payment of any installment of principal of or interest on any Note, or reduce the principal amount thereof, the Interest Rate thereon or the Redemption Price with respect thereto, change the provisions of this Indenture relating to the application of collections on, or the proceeds of the sale of, the Trust Estate to payment of principal of or interest on the Notes, or change any place of payment where, or the coin or currency in which, any Note or the interest thereon is payable, or impair the right to institute suit for the enforcement of the provisions of this Indenture requiring the application of funds available therefor, as provided in Article V, to the payment of any such amount due on the Notes on or after the respective due dates thereof (or, in the case of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the Controlling Securities, the consent of the Holders of which is required for any such supplemental indenture, or the consent of the Holders of which is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the definition of the term “Outstanding”;
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(iv) reduce the percentage of the Outstanding Amount of the Controlling Securities required to direct the Indenture Trustee to direct the Issuing Entity to sell or liquidate the Trust Estate pursuant to Section 5.04;
(v) modify any provision of this Section except to increase any percentage specified herein or to provide that certain additional provisions of this Indenture or the Basic Documents cannot be modified or waived without the consent of the Holder of each Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in such manner as to affect the calculation of the amount of any payment of interest or principal due on any Note on any Payment Date (including the calculation of any of the individual components of such calculation) or to affect the rights of the Holders of Notes to the benefit of any provisions for the mandatory redemption of the Notes contained herein;
(vii) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Trust Estate or, except as otherwise permitted or contemplated herein, terminate the lien of this Indenture on any property at any time subject hereto or deprive the Holder of any Note of the security provided by the lien of this Indenture; or
(viii) except as provided in Section 5.04(a)(iv), liquidate the Receivables when the proceeds of such sale would be insufficient to fully pay the Notes.
(b) The Indenture Trustee may in its discretion determine whether or not any Notes would be affected by any supplemental indenture and any such determination shall be conclusive upon the Holders of all Notes, whether theretofore or thereafter authenticated and delivered hereunder. The Indenture Trustee shall not be liable for any such determination made in good faith.
(c) It shall not be necessary for any Act of Noteholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
(d) Promptly after the execution by the Issuing Entity and the Indenture Trustee of any supplemental indenture pursuant to this Section, the Indenture Trustee shall transmit to the Holders of the Notes to which such amendment or supplemental indenture relates a notice setting forth in general terms the substance of such supplemental indenture. Any failure of the Indenture Trustee to transmit such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Section 9.03 Execution of Supplemental Indentures. In executing, or permitting the additional trusts created by, any supplemental indenture permitted by this Article IX or the modification thereby of the trusts created by this Indenture, the Indenture Trustee shall be provided with and, subject to Sections 6.01 and 6.02, shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and that all conditions precedent under this Indenture for the execution of the supplemental indenture have been complied with. The Indenture Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Indenture Trustee’s own rights, duties, liabilities or immunities under this Indenture or otherwise.
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Section 9.04 Effect of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and shall be deemed to be modified and amended in accordance therewith with respect to the Notes affected thereby, and the respective rights, limitations of rights, obligations, duties, liabilities and immunities under this Indenture of the Indenture Trustee, the Issuing Entity and the Holders of the Notes shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 9.05 Conformity with Trust Indenture Act. Every amendment of this Indenture and every supplemental indenture executed pursuant to this Article IX shall conform to the requirements of the Trust Indenture Act as then in effect so long as this Indenture shall then be qualified under the Trust Indenture Act.
Section 9.06 Reference in Notes to Supplemental Indentures. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article IX may, and if required by the Indenture Trustee shall, bear a notation in form approved by the Indenture Trustee as to any matter provided for in such supplemental indenture. If the Issuing Entity or the Indenture Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Indenture Trustee and the Issuing Entity, to any such supplemental indenture may be prepared and executed by the Issuing Entity and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X
Redemption of Notes
Section 10.01 Redemption. The outstanding Notes are subject to redemption in whole, but not in part, at the direction of the Servicer pursuant to Section 9.01(a) of the Sale and Servicing Agreement, on any Payment Date on which the Servicer exercises its option to purchase the Owner Trust Estate pursuant to said Section 9.01(a), for a purchase price equal to the Redemption Price; provided that the Issuing Entity has available funds sufficient to pay the Redemption Price. The Servicer or the Issuing Entity shall furnish the Rating Agencies notice of such redemption. If the outstanding Notes are to be redeemed pursuant to this Section, the Servicer or the Issuing Entity shall furnish notice of such election to the Indenture Trustee not later than the close of business on the first business day of the month in which the Redemption Date occurs and the Issuing Entity shall deposit by 10:00 A.M. New York City time on the Redemption Date with the Indenture Trustee in the Note Distribution Account the Redemption Price of the Notes to be redeemed, whereupon all such Notes shall be due and payable on the Redemption Date upon the furnishing of a notice complying with Section 10.02 to each Holder of the Notes.
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Section 10.02 Form of Redemption Notice. Notice of redemption under Section 10.01 shall be given by the Indenture Trustee by first-class mail, postage prepaid, or by facsimile mailed or transmitted not later than 10 days prior to the applicable Redemption Date to each Holder of Notes, as of the close of business on the Record Date preceding the applicable Redemption Date, at such Holder’s address or facsimile number appearing in the Note Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the place where such Notes are to be surrendered for payment of the Redemption Price (which shall be the office or agency of the Issuing Entity to be maintained as provided in Section 3.02); and
(d) applicable “CUSIP” numbers.
Notice of redemption of the Notes shall be given by the Indenture Trustee in the name and at the expense of the Issuing Entity. Failure to give notice of redemption, or any defect therein, to any Holder of any Note shall not impair or affect the validity of the redemption of any other Note.
Section 10.03 Notes Payable on Redemption Date. The Notes or portions thereof to be redeemed shall, following notice of redemption as required by Section 10.02, on the Redemption Date become due and payable at the Redemption Price and (unless the Issuing Entity shall default in the payment of the Redemption Price) no interest shall accrue on the Redemption Price for any period after the date to which accrued interest is calculated for purposes of calculating the Redemption Price.
ARTICLE XI
Miscellaneous
Section 11.01 Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuing Entity to the Indenture Trustee to take any action under any provision of this Indenture, the Issuing Entity shall furnish to the Indenture Trustee (i) an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with and (iii) (if required by the TIA) an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of this Section, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture, no additional certificate or opinion need be furnished.
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Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such signatory, such signatory has made such examination or investigation as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or securities with the Indenture Trustee that is to be made the basis for the release of any property or securities subject to the lien of this Indenture, the Issuing Entity shall, in addition to any obligation imposed in Section 11.01(a) or elsewhere in this Indenture, furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of the person signing such certificate as to the fair value (within 90 days of such deposit) to the Issuing Entity of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuing Entity is required to furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of any signer thereof as to the matters described in clause (i) above, the Issuing Entity shall also deliver to the Indenture Trustee an Independent Certificate as to the same matters, if the fair value to the Issuing Entity of the securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then-current fiscal year of the Issuing Entity, as set forth in the certificates delivered pursuant to clause (i) above and this clause (ii), is 10% or more of the Outstanding Amount of the Notes, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Issuing Entity as set forth in the related Officer’s Certificate is less than $25,000 or less than one percent of the Outstanding Amount of the Notes.
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(iii) Whenever any property or securities are to be released from the lien of this Indenture, the Issuing Entity shall also furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuing Entity is required to furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of any signer thereof as to the matters described in clause (iii) above, the Issuing Entity shall also furnish to the Indenture Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property, other than property as contemplated by clause (v) below or securities released from the lien of this Indenture since the commencement of the then-current calendar year, as set forth in the certificates required by clause (iii) above and this clause (iv), equals 10% or more of the Outstanding Amount of the Notes, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer’s Certificate is less than $25,000 or less than one percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.10 or any other provision of this Section, the Issuing Entity may, without compliance with the requirements of the other provisions of this Section, (A) collect, liquidate, sell or otherwise dispose of Receivables and Financed Vehicles as and to the extent permitted or required by the Basic Documents and (B) make cash payments out of the Note Distribution Account as and to the extent permitted or required by the Basic Documents, so long as the Issuing Entity shall deliver to the Indenture Trustee every six months, commencing October 15, 2017, an Officer’s Certificate of the Issuing Entity stating that all the dispositions of Collateral described in clauses (A) or (B) above that occurred during the preceding six calendar months were in the ordinary course of the Issuing Entity’s business and that the proceeds thereof were applied in accordance with the Basic Documents.
Section 11.02 Form of Documents Delivered to Indenture Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuing Entity may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such officer’s certificate or opinion is based are erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Servicer, the Depositor, the Issuing Entity or the Administrator, stating that the information with respect to such factual matters is in the possession of the Servicer, the Depositor, the Issuing Entity or the Administrator, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
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Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Whenever in this Indenture, in connection with any application or certificate or report to the Indenture Trustee, it is provided that the Issuing Entity shall deliver any document as a condition of the granting of such application, or as evidence of the Issuing Entity’s compliance with any term hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of the Issuing Entity to have such application granted or to the sufficiency of such certificate or report. The foregoing shall not, however, be construed to affect the Indenture Trustee’s right to rely upon the truth and accuracy of any statement or opinion contained in any such document as provided in Article VI.
Section 11.03 Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Noteholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by agents duly appointed in writing; and except as herein otherwise expressly provided such action shall become effective when such instrument or instruments are delivered to the Indenture Trustee and, where it is hereby expressly required, to the Issuing Entity. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act of the Noteholders” signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Indenture Trustee and the Issuing Entity, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any such instrument or writing may be proved in any manner that the Indenture Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Notes shall bind the Holder of every Note issued upon the registration thereof or in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Indenture Trustee or the Issuing Entity in reliance thereon, whether or not notation of such action is made upon such Note.
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Section 11.04 Notices, etc., to Indenture Trustee, Issuing Entity and Rating Agencies. Any request, demand, authorization, direction, notice, consent, waiver or Act of Noteholders or other documents provided or permitted by this Indenture shall be in writing and if such request, demand, authorization, direction, notice, consent, waiver or act of Noteholders is to be made upon, given or furnished to or filed with:
(i) the Indenture Trustee by any Noteholder or by the Issuing Entity shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (which may be made via e-mail transmission, pdf, facsimile or overnight delivery) to or with the Indenture Trustee at its Corporate Trust Office, or
(ii) the Issuing Entity by the Indenture Trustee or by any Noteholder shall be sufficient for every purpose hereunder if in writing and mailed first-class, postage prepaid to the Issuing Entity addressed to: World Omni Auto Receivables Trust 2017-A, in care of the Owner Trustee at its Corporate Trust Office, or at any other address previously furnished in writing to the Indenture Trustee by the Issuing Entity or the Administrator. The Issuing Entity shall promptly transmit any notice received by it from the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies shall be given to the Depositor, which shall promptly post such notice to the website maintained by the Depositor for notifications to nationally recognized statistical rating organizations.
The Issuing Entity’s obligation to deliver or provide any demand, delivery, notice, communication or instruction to any Person other than a Noteholder shall be satisfied by the Issuing Entity making such demand, delivery, notice, communication or instruction available at https://via.intralinks.com/, or such other website or distribution service or provider as the Issuing Entity shall designate by written notice to the other parties.
The Indenture Trustee shall promptly transmit any notice received by it from the Noteholders or Note Owners to the Issuing Entity, the Administrator and the Servicer and, if such notice is a Repurchase Request, to World Omni.
Section 11.05 Notices to Noteholders; Waiver. Where this Indenture provides for notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if by electronic transmission in writing and mailed, first-class, postage prepaid to each Noteholder affected by such event, at such Holder’s address as it appears on the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Noteholders is given by mail, neither the failure to mail such notice nor any defect in any notice so mailed to any particular Noteholder shall affect the sufficiency of such notice with respect to other Noteholders, and any notice that is mailed in the manner herein provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the Indenture Trustee but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such a waiver.
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In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage or similar activity, it shall be impractical to mail notice of any event to Noteholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies, failure to give such notice shall not affect any other rights or obligations created hereunder, and shall not under any circumstance constitute a Default or Event of Default.
If the Indenture Trustee receives a Repurchase Request from a Noteholder or Note Owner and World Omni does not repurchase the Receivable related to such Repurchase Request within 180 days of the receipt of such Repurchase Request, the Indenture Trustee shall, at the direction of the Administrator, deliver a notice to the related Noteholder or Note Owner indicating that the repurchase request is unresolved.
Section 11.06 Alternate Payment and Notice Provisions. Notwithstanding any provision of this Indenture or any of the Notes to the contrary, the Issuing Entity may enter into any agreement with any Holder of a Note providing for a method of payment, or notice by the Indenture Trustee or any Paying Agent to such Holder, that is different from the methods provided for in this Indenture for such payments or notices. The Issuing Entity will furnish to the Indenture Trustee a copy of each such agreement and the Indenture Trustee will cause payments to be made and notices to be given in accordance with such agreements.
Section 11.07 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof that is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.
The provisions of TIA §§ 310 through 317 that impose duties on any person (including the provisions automatically deemed included herein unless expressly excluded by this Indenture) are a part of and govern this Indenture, whether or not physically contained herein.
Section 11.08 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 11.09 Successors and Assigns. All covenants and agreements in this Indenture and the Notes by the Issuing Entity shall bind its successors and assigns, whether so expressed or not. All agreements of the Indenture Trustee in this Indenture shall bind its successors, co-trustees and agents.
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Section 11.10 Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 11.11 Benefits of Indenture. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Noteholders and any other party secured hereunder, and any other Person with an ownership interest in any part of the Trust Estate, any benefit or any legal or equitable right, remedy or claim under this Indenture. The Asset Representations Reviewer shall be a third-party beneficiary to this Indenture, but only to the extent that it has any rights specified herein.
Section 11.12 Legal Holidays. In any case where the date on which any payment is due shall not be a Business Day, then (notwithstanding any other provision of the Notes or this Indenture) payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date on which nominally due, and no interest shall accrue for the period from and after any such nominal date.
Section 11.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.14 Counterparts. This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 11.15 Recording of Indenture. If this Indenture is subject to recording in any appropriate public recording offices, such recording is to be effected by the Issuing Entity and at its expense accompanied by an Opinion of Counsel to the effect that such recording is necessary either for the protection of the Noteholders or any other Person secured hereunder or for the enforcement of any right or remedy granted to the Indenture Trustee under this Indenture.
Section 11.16 Trust Obligation. It is expressly understood and agreed by the parties hereto that (a) this Indenture is executed and delivered by the Trustee Bank, not individually or personally but solely as Owner Trustee, in the exercise of the powers and authority conferred and vested in it under the Trust Agreement, (b) each of the representations, undertakings and agreements herein made on the part of the Issuing Entity is made and intended not as personal representations, undertakings and agreements by the Trustee Bank, but is made and intended for the purpose of binding only the Issuing Entity, (c) nothing herein contained shall be construed as creating any liability on the Trustee Bank, individually or personally, to perform any covenant of the Issuing Entity, either expressed or implied, contained herein, all such liability of the Trustee Bank in its individual or personal capacity, if any, being expressly waived by the parties hereto and by any person claiming by, through or under the parties hereto, (d) the Trustee Bank has made no investigation into the accuracy or completeness of any representations or warranties made by the Issuing Entity in this Indenture, and (e) under no circumstances shall the Trustee Bank be personally liable for the payment of any indebtedness or expenses of the Issuing Entity under this Indenture or any other related documents.
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No recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under this Indenture or any certificate or other writing delivered in connection herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a beneficial interest in the Issuing Entity or (iii) any partner, owner, beneficiary, agent, officer, director, employee or agent of the Indenture Trustee or the Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Owner Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
In the event that a Noteholder (other than WOAR) is deemed, under applicable law by any court or other authority of competent jurisdiction, to have an interest in any assets of WOAR or any Affiliate of WOAR other than the beneficial interest in Trust (“other assets”), the parties to this Indenture and the Noteholders acknowledge and agree that: (i) such Noteholder’s Note represents a claim of the Noteholder against the assets of the Trust and the Trust Estate only, (ii) any such Noteholder’s claim against any other assets shall be, and hereby is, subject and subordinate in all respects to the rights of other Persons to whom rights in the other assets have been expressly granted (“entitled Persons”), including to the payment in full of all amounts owing to such entitled Persons, and (iii) the covenant set forth in the preceding clause (ii) constitutes a “subordination agreement” within the meaning of, and subject to, Section 510(a) of the Bankruptcy Code.
Section 11.17 No Petition. The Indenture Trustee, by entering into this Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree that they will not at any time institute against the Depositor or the Issuing Entity, or join in any institution against the Depositor or the Issuing Entity of, any involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, this Indenture or any of the Basic Documents.
Section 11.18 Inspection. The Issuing Entity agrees that, on reasonable prior notice, it will permit any representative of the Indenture Trustee, during the Issuing Entity’s normal business hours, to examine all the books of account, records, reports and other papers of the Issuing Entity, to make copies and extracts therefrom, to cause such books to be audited by Independent certified public accountants, and to discuss the Issuing Entity’s affairs, finances and accounts with the Issuing Entity’s officers, employees and Independent certified public accountants, all at such reasonable times and as often as may be reasonably requested. The Indenture Trustee shall, and shall cause its representatives to, hold in confidence all such information except to the extent disclosure may be required by law (and all reasonable applications for confidential treatment are unavailing) and except to the extent that the Indenture Trustee may reasonably determine that such disclosure is consistent with its obligations hereunder.
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Section 11.19 Waiver of Jury Trial. EACH OF THE ISSUING ENTITY AND THE INDENTURE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
ARTICLE XII
COMPLIANCE WITH REGULATION AB
Section 12.01 Intent of the Parties; Reasonableness. The Depositor and the Indenture Trustee acknowledge and agree that the purpose of this Article XII is to facilitate compliance by the Depositor with the provisions of Regulation AB and related rules and regulations of the Commission. The Depositor shall not exercise its right to request delivery of information or other performance under these provisions other than in good faith, or for purposes other than the Depositor’s compliance with the Securities Act, the Securities Exchange Act and the rules and regulations of the Commission thereunder (or the provision in a private offering of disclosure comparable to that required under the Securities Act). The Indenture Trustee agrees to cooperate in good faith with any reasonable request by the Depositor for information regarding the Indenture Trustee which is required in order to enable the Depositor to comply with the provisions of Items 1109(a), 1109(b), 1117, 1119 and 1122 of Regulation AB as it relates to the Indenture Trustee or to the Indenture Trustee’s obligations under this Indenture or any indenture supplement.
Section 12.02 Additional Representations and Warranties of the Indenture Trustee. The Indenture Trustee shall be deemed to represent to the Depositor, as of the date on which information is provided to The Depository Trust Company under Section 6.06 that, except as disclosed in writing to the Depositor prior to such date to the best of its knowledge, but without independent investigation: (i) neither the execution, delivery and performance by the Indenture Trustee of this Indenture or any indenture supplement, the performance by the Indenture Trustee of its obligations under this Indenture or any indenture supplement nor the consummation of any of the transactions by the Indenture Trustee contemplated thereby, is in violation of any indenture, mortgage, bank credit agreement, note or bond purchase agreement, long-term lease, license or other agreement or instrument to which the Indenture Trustee is a party or by which it is bound, which violation would have a material adverse effect on the Indenture Trustee’s ability to perform its obligations under this Indenture or any indenture supplement, or of any judgment or order applicable to the Indenture Trustee; and (ii) there are no proceedings pending or threatened against the Indenture Trustee in any court or before any governmental authority, agency or arbitration board or tribunal which, individually or in the aggregate, would have a material adverse effect on the right, power and authority of the Indenture Trustee to enter into this Indenture or any indenture supplement or to perform its obligations under this Indenture or any indenture supplement.
64 |
Section 12.03 Information to Be Provided by the Indenture Trustee. For so long as the Issuing Entity is required to report under the Exchange Act, the Indenture Trustee shall (i) on or before the fifth Business Day of each month, provide to the Depositor, in writing, such information regarding the Indenture Trustee as is requested by the Depositor (if any) for the purpose of compliance with Item 1117 of Regulation AB; provided, however, that the Indenture Trustee shall not be required to provide such information in the event that there has been no change to the information previously provided by the Indenture Trustee to the Depositor, and (ii) as promptly as practicable following notice to or discovery by a Responsible Officer of the Indenture Trustee of any changes to such information, provide to the Depositor, in writing, such updated information.
For so long as the Issuing Entity is required to report under the Exchange Act, the Indenture Trustee shall (i) on or before the fifth Business Day of each January, April, July and October, provide to the Depositor such information regarding the Indenture Trustee as is requested for the purpose of compliance with Items 1109(a), 1109(b) and 1119 of Regulation AB; provided, however, that the Indenture Trustee shall not be required to provide such information in the event that there has been no change to the information previously provided by the Indenture Trustee to the Depositor, and (ii) as promptly as practicable following notice to or discovery by the Indenture Trustee of any changes to such information, provide to the Depositor, in writing, updated information necessary for compliance with Item 1117 of Regulation AB. Such information shall include, at a minimum:
(a) the Indenture Trustee’s name and form of organization;
(b) a description of the extent to which the Indenture Trustee has had prior experience serving as trustee for asset-backed securities transactions involving receivables of the same type as the Receivables;
(c) a description of any affiliation between the Indenture Trustee and any of the following parties to a Securitization Transaction, as such parties are identified to the Indenture Trustee by the Depositor in writing in advance of such Securitization Transaction:
(i) the sponsor;
(ii) any depositor;
(iii) the issuing entity;
(iv) any servicer;
(v) any trustee;
(vi) any originator;
(vii) any significant obligor;
(viii) any enhancement or support provider, including any swap counterparty;
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(ix) any asset representations reviewer; and
(x) any other material transaction party.
In connection with the above-listed parties, a description of whether there is, and if so the general character of, any business relationship, agreement, arrangement, transaction or understanding that is entered into outside the ordinary course of business or is on terms other than would be obtained in an arm’s length transaction with an unrelated third party, apart from the asset-backed securities transaction, that currently exists or that existed during the past two years and that is material to an investor’s understanding of the asset-backed securities.
Section 12.04 Regulation AB Reports by Indenture Trustee. For so long as the Issuing Entity is required to report under the Exchange Act, the Indenture Trustee will, on or before March 1 of each year, beginning March 1, 2018:
(i) deliver to the Depositor a report regarding the Indenture Trustee’s assessment of compliance with the Servicing Criteria specified in Exhibit C during the immediately preceding calendar year, including disclosure of any material instance of non-compliance identified by the Indenture Trustee (provided, that to the extent the Indenture Trustee identifies any material instance of non-compliance, the Indenture Trustee shall disclose (whether in such report or separately) to the Depositor whether such material instance of non-compliance relates to the Receivables or the Notes and whether and to what extent the Indenture Trustee has instituted steps to remediate such material instance of non-compliance), as required under paragraph (b) of Rule 13a-18, Rule 15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such report shall be signed by an authorized officer of the Indenture Trustee, and shall address each of the Servicing Criteria specified in Exhibit C or such criteria as mutually agreed upon by the Depositor and the Indenture Trustee.
(ii) deliver to the Depositor a report of a registered public accounting firm that attests to, and reports on, the assessment of compliance made by the Indenture Trustee and delivered pursuant to the preceding paragraph. Such attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the Exchange Act.
(iii) deliver to the Depositor and any other Person that will be responsible for signing the certification (a “Sarbanes Certification”) required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section 302 of the Sarbanes-Oxley Act of 2002) on behalf of the Issuing Entity or the Depositor substantially in the form attached hereto as Exhibit D or such form as mutually agreed upon by the Depositor and the Indenture Trustee.
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IN WITNESS WHEREOF, the Issuing Entity and the Indenture Trustee have caused this Indenture to be duly executed by their respective officers, thereunto duly authorized, all as of the day and year first above written.
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A, | ||
By: | Wells Fargo Delaware Trust Company, N.A., not in its individual capacity but solely as Owner Trustee |
By: | /s/ Jose I. Mercado | |
Name: | Jose I. Mercado | |
Title: | Vice President | |
U.S. Bank National Association, not in its individual capacity but solely as Indenture Trustee | ||
By: | /s/ Christopher J. Nuxoll | |
Name: | Christopher J. Nuxoll | |
Title: | Vice President |
SCHEDULE A
Schedule of Receivables
Provided to the Indenture Trustee and Owner Trustee on the Closing Date
Sch. A |
EXHIBIT A-1
[FORM OF CLASS A-1 NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUING ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED | $____________ |
No.: ___ | CUSIP No.: ______ |
ISIN No.: ______ | |
CINS No.: …..…………… |
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A
CLASS A-1 1.10000% ASSET-BACKED NOTES
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the “Issuing Entity”), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of ___________ DOLLARS payable on each Payment Date in an amount equal to the result obtained by multiplying (i) a fraction the numerator of which is $_____ and the denominator of which is $225,000,000 by (ii) the aggregate amount, if any, payable from the Note Distribution Account in respect of principal on the Class A-1 Notes pursuant to Section 3.01 of the Indenture dated as of April 19, 2017 (the “Indenture”), between the Issuing Entity and U.S. Bank National Association, as Indenture Trustee (the “Indenture Trustee”); provided, however, that the entire unpaid principal amount of this Note shall be due and payable on the earlier of the April 16, 2018 Payment Date (the “Class A-1 Final Scheduled Payment Date”) and the Redemption Date, if any, pursuant to Section 10.01 of the Indenture. Capitalized terms used but not defined herein are defined in Article I of the Indenture, which also contains rules as to construction that shall be applicable herein.
Ex. A-1-1 |
BY ACQUIRING A CLASS A-1 NOTE, EACH INITIAL PURCHASER, TRANSFEREE AND OWNER OF A BENEFICIAL INTEREST IN SUCH NOTE WILL BE DEEMED TO REPRESENT THAT EITHER (1) IT IS NOT ACQUIRING THE NOTES WITH THE ASSETS OF (i) AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), (ii) A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY OR (iv) ANY PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”) OR (2) THE ACQUISITION AND HOLDING OF THE CLASS A-1 NOTES WILL NOT GIVE RISE TO A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR SIMILAR LAW.
The Issuing Entity will pay interest on this Note at the rate per annum shown above on each Payment Date until the principal of this Note is paid or made available for payment, on the principal amount of this Note outstanding on the preceding Payment Date (after giving effect to all payments of principal made on the preceding Payment Date), subject to certain limitations contained in the last sentence of Section 3.01 of the Indenture. Interest on this Note will accrue for each Payment Date from and including the most recent Payment Date on which interest has been paid (in the case of the initial Payment Date, from the Closing Date) to but excluding such current Payment Date. Interest will be computed on the basis of the actual number of days in the Interest Accrual Period divided by 360. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuing Entity with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
Ex. A-1-2 |
IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
Date: ________________ | WORLD OMNI AUTO RECEIVABLES TRUST 2017-A | |
By: Wells Fargo Delaware Trust Company, N.A., not in its individual capacity but solely as Owner Trustee | ||
By: | ||
Name: | ||
Title: |
INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
Date: _________________ | U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee |
By: | ||
Name: | ||
Title: |
Ex. A-1-3 |
This Note is one of a duly authorized issue of Notes of the Issuing Entity, designated as its Class A-1 1.10000% Asset-Backed Notes (herein called the “Class A-1 Notes”), all issued under the Indenture, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuing Entity, the Indenture Trustee and the Holders of the Notes. The Class A-1 Notes are subject to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes (collectively, the “Notes”) are and will be equally and ratably secured by the collateral pledged as security therefor as provided in the Indenture and subject to the subordination provisions set forth therein.
Principal of the Class A-1 Notes will be payable on each Payment Date and, if the Class A-1 Notes have not been paid in full prior to the Class A-1 Final Scheduled Payment Date, on the Class A-1 Final Scheduled Payment Date, in an amount described on the face hereof. “Payment Date” means the fifteenth day of each month or, if such day is not a Business Day, the immediately following Business Day. The initial Payment Date will be May 15, 2017.
As described above, the entire unpaid principal amount of this Note shall be due and payable on the Class A-1 Final Scheduled Payment Date. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable on the date on which an Event of Default shall have occurred and be continuing and the Indenture Trustee or the Holders of Notes representing not less than at least a majority of the Outstanding Amount of the Controlling Securities have declared the Notes to be immediately due and payable in the manner provided in Section 5.02 of the Indenture. All principal payments on the Class A-1 Notes shall be made pro rata to the Class A-1 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Note, shall be made by check mailed to the Person whose name appears as the Registered Holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on each Record Date, except that with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Record Date without requiring that this Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) effected by any payments made on any Payment Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the then remaining unpaid principal amount of this Note on a Payment Date, then the Indenture Trustee, in the name of and on behalf of the Issuing Entity, will notify the Person who was the Registered Holder hereof as of the Record Date preceding such Payment Date by notice mailed or transmitted by facsimile prior to such Payment Date, and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Indenture Trustee’s principal Corporate Trust Office or at the office of the Indenture Trustee’s agent appointed for such purposes located in the City of St. Paul, Minnesota.
Ex. A-1-4 |
The Issuing Entity shall pay interest on overdue installments of interest at the Class A-1 Interest Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set forth therein and on the face hereof, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuing Entity pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Securities Transfer Agent’s Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes of authorized denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuing Entity or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees by accepting the benefits of the Indenture that such Noteholder or Note Owner will not at any time institute against the Depositor, World Omni or the Issuing Entity, or join in any institution against the Depositor, World Omni or the Issuing Entity of, any involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, the Indenture or the Basic Documents.
Ex. A-1-5 |
The Issuing Entity has entered into the Indenture and this Note is issued with the intention that, for federal, state and local income, single business and franchise tax purposes, the Notes will qualify as indebtedness secured by the Trust Estate. Each Noteholder (other than the Depositor and any Affiliate of the Depositor that is not treated as a separate entity from the Depositor for federal income tax purposes), by acceptance of a Note (and each Note Owner by acceptance of a beneficial interest in a Note), agrees to treat the Notes for federal, state and local income, single business and franchise tax purposes as indebtedness of the Issuing Entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees by accepting the benefits of the Indenture that such Noteholder or Note Owner shall provide to the Person from whom it receives payments on the Notes (i) properly completed and signed tax certifications, for a U.S. Person, on Internal Revenue Service Form W-9 and, for a Person that is not a U.S. Person, on the appropriate Internal Revenue Service Form W-8 and (ii) upon request, information sufficient to eliminate the imposition of, or determine the amount of, such withholding or deduction under FATCA. The Indenture Trustee has the right to withhold any amounts (properly withholdable under law and without any corresponding gross-up) payable to a Noteholder or Note Owner that fails to comply with the requirements of the preceding sentence.
Prior to the due presentment for registration of transfer of this Note, the Issuing Entity, the Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuing Entity, the Indenture Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuing Entity and the rights of the Holders of the Notes under the Indenture at any time by the Issuing Entity with the consent of the Holders of Notes representing a majority of the Outstanding Amount of all Notes at the time Outstanding. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Amount of the Controlling Securities, on behalf of the Holders of all the Notes, to waive compliance by the Issuing Entity with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one or more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of Holders of the Notes issued thereunder.
The term “Issuing Entity” as used in this Note includes any successor to the Issuing Entity under the Indenture.
Ex. A-1-6 |
The Issuing Entity is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuing Entity, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Basic Documents, none of U.S. Bank National Association in its individual capacity, Wells Fargo Delaware Trust Company, N.A., in its individual capacity, any owner of a beneficial interest in the Issuing Entity, or any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, nor shall recourse be had to any of them for, the payment of principal of or interest on this Note or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in the Indenture. The Holder of this Note by its acceptance hereof agrees that, except as expressly provided in the Basic Documents, in the case of an Event of Default under the Indenture, the Holder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuing Entity for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.
Ex. A-1-7 |
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee) |
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints ______________________________________________________________, attorney, transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated:_____________________ | _____________________________________* |
Signature Guaranteed: | ||
_____________________________________* |
* NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
Ex. A-1-8 |
EXHIBIT A-2a
[FORM OF CLASS A-2a NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUING ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED | $________ |
No.: ___ | CUSIP No.: _____ |
ISIN No.: _____ | |
CINS No.: ….…………… |
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A
CLASS A-2a 1.50% ASSET-BACKED NOTES
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the “Issuing Entity”), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of ___________ DOLLARS payable on each Payment Date in an amount equal to the result obtained by multiplying (i) a fraction the numerator of which is $______ and the denominator of which is $346,500,000 by (ii) the aggregate amount, if any, payable from the Note Distribution Account in respect of principal on the Class A-2a Notes pursuant to Section 3.01 of the Indenture dated as of April 19, 2017 (the “Indenture”), between the Issuing Entity and U.S. Bank National Association, as Indenture Trustee (the “Indenture Trustee”); provided, however, that the entire unpaid principal amount of this Note shall be due and payable on the earlier of the August 17, 2020 Payment Date (the “Class A-2 Final Scheduled Payment Date”) and the Redemption Date, if any, pursuant to Section 10.01 of the Indenture. Principal payable with respect to the Class A-2 Notes shall be made pro rata between the Class A-2a Notes and the Class A-2b Notes. Generally, no payments of principal of the Class A-2 Notes shall be made until the Class A-1 Notes have been paid in full. Capitalized terms used but not defined herein are defined in Article I of the Indenture, which also contains rules as to construction that shall be applicable herein.
Ex. A-2a-1 |
BY ACQUIRING A CLASS A-2A NOTE, EACH INITIAL PURCHASER, TRANSFEREE AND OWNER OF A BENEFICIAL INTEREST IN SUCH NOTE WILL BE DEEMED TO REPRESENT THAT EITHER (1) IT IS NOT ACQUIRING THE NOTES WITH THE ASSETS OF (i) AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), (ii) A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY OR (iv) ANY PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”) OR (2) THE ACQUISITION AND HOLDING OF THE CLASS A-2A NOTES WILL NOT GIVE RISE TO A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR SIMILAR LAW.
The Issuing Entity will pay interest on this Note at the rate per annum shown above on each Payment Date until the principal of this Note is paid or made available for payment, on the principal amount of this Note outstanding on the preceding Payment Date (after giving effect to all payments of principal made on the preceding Payment Date), subject to certain limitations contained in the last sentence of Section 3.01 of the Indenture. Interest on this Note will accrue for each Payment Date from and including the 15th day of the preceding calendar month (or, for the initial interest accrual period, from and including the Closing Date) to but excluding the 15th day of the current calendar month. Interest will be computed on the basis of a 360-day year of twelve 30-day months. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuing Entity with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
Ex. A-2a-2 |
IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
Date: _________________ | WORLD OMNI AUTO RECEIVABLES TRUST 2017-A |
By: Wells Fargo Delaware Trust Company, N.A., not in its individual capacity but solely as Owner Trustee |
By: | ||
Name: | ||
Title: |
INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
Date: _________________ | U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee |
By: | ||
Name: | ||
Title: |
Ex. A-2a-3 |
This Note is one of a duly authorized issue of Notes of the Issuing Entity, designated as its Class A-2a 1.50% Asset-Backed Notes (herein called the “Class A-2a Notes”), all issued under the Indenture, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuing Entity, the Indenture Trustee and the Holders of the Notes. The Class A-2a Notes are subject to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes (collectively, the “Notes”) are and will be equally and ratably secured by the collateral pledged as security therefor as provided in the Indenture and subject to the subordination provisions therein.
Principal of the Class A-2a Notes will be payable on each Payment Date and, if the Class A-2a Notes have not been paid in full prior to the Class A-2 Final Scheduled Payment Date, on the Class A-2 Final Scheduled Payment Date, in an amount described on the face hereof. “Payment Date” means the fifteenth day of each month or, if such day is not a Business Day, the immediately following Business Day. The initial Payment Date will be May 15, 2017.
As described above, the entire unpaid principal amount of this Note shall be due and payable on the Class A-2 Final Scheduled Payment Date. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable on the date on which an Event of Default shall have occurred and be continuing and the Indenture Trustee or the Holders of Notes representing at least a majority of the Outstanding Amount of the Controlling Securities have declared the Notes to be immediately due and payable in the manner provided in Section 5.02 of the Indenture. All principal payments on the Class A-2a Notes shall be made pro rata to the Class A-2a Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Note, shall be made by check mailed to the Person whose name appears as the Registered Holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on each Record Date, except that with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Record Date without requiring that this Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) effected by any payments made on any Payment Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the then remaining unpaid principal amount of this Note on a Payment Date, then the Indenture Trustee, in the name of and on behalf of the Issuing Entity, will notify the Person who was the Registered Holder hereof as of the Record Date preceding such Payment Date by notice mailed or transmitted by facsimile prior to such Payment Date, and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Indenture Trustee’s principal Corporate Trust Office or at the office of the Indenture Trustee’s agent appointed for such purposes located in the City of St. Paul, Minnesota.
Ex. A-2a-4 |
The Issuing Entity shall pay interest on overdue installments of interest at the Class A-2a Interest Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set forth therein and on the face hereof, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuing Entity pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Securities Transfer Agent’s Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes of authorized denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuing Entity or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees by accepting the benefits of the Indenture that such Noteholder or Note Owner will not at any time institute against the Depositor, World Omni or the Issuing Entity, or join in any institution against the Depositor, World Omni or the Issuing Entity of, any involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, the Indenture or the Basic Documents.
Ex. A-2a-5 |
The Issuing Entity has entered into the Indenture and this Note is issued with the intention that, for federal, state and local income, single business and franchise tax purposes, the Notes will qualify as indebtedness secured by the Trust Estate. Each Noteholder (other than the Depositor and any Affiliate of the Depositor that is not treated as a separate entity from the Depositor for federal income tax purposes), by acceptance of a Note (and each Note Owner by acceptance of a beneficial interest in a Note), agrees to treat the Notes for federal, state and local income, single business and franchise tax purposes as indebtedness of the Issuing Entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees by accepting the benefits of the Indenture that such Noteholder or Note Owner shall provide to the Person from whom it receives payments on the Notes (i) properly completed and signed tax certifications, for a U.S. Person, on Internal Revenue Service Form W-9 and, for a Person that is not a U.S. Person, on the appropriate Internal Revenue Service Form W-8 and (ii) upon request, information sufficient to eliminate the imposition of, or determine the amount of, such withholding or deduction under FATCA. The Indenture Trustee has the right to withhold any amounts (properly withholdable under law and without any corresponding gross-up) payable to a Noteholder or Note Owner that fails to comply with the requirements of the preceding sentence.
Prior to the due presentment for registration of transfer of this Note, the Issuing Entity, the Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuing Entity, the Indenture Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuing Entity and the rights of the Holders of the Notes under the Indenture at any time by the Issuing Entity with the consent of the Holders of Notes representing a majority of the Outstanding Amount of all Notes at the time Outstanding. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Amount of the Controlling Securities, on behalf of the Holders of all the Notes, to waive compliance by the Issuing Entity with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one or more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of Holders of the Notes issued thereunder.
The term “Issuing Entity” as used in this Note includes any successor to the Issuing Entity under the Indenture.
Ex. A-2a-6 |
The Issuing Entity is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuing Entity, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Basic Documents, none of U.S. Bank National Association in its individual capacity, Wells Fargo Delaware Trust Company, N.A., in its individual capacity, any owner of a beneficial interest in the Issuing Entity, or any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, nor shall recourse be had to any of them for, the payment of principal of or interest on this Note or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in the Indenture. The Holder of this Note by its acceptance hereof agrees that, except as expressly provided in the Basic Documents, in the case of an Event of Default under the Indenture, the Holder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuing Entity for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.
Ex. A-2a-7 |
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee) |
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints ______________________________________________________________, attorney, transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated:_____________________ | _____________________________________* |
Signature Guaranteed: | ||
* NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
Ex. A-2a-8 |
EXHIBIT A-2b
[FORM OF CLASS A-2b NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUING ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED | $________ |
No.: ___ | CUSIP No.: _____ |
ISIN No.: _____ | |
CINS No.: ….…………… |
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A
CLASS A-2b ONE-MONTH LIBOR PLUS 0.14% ASSET-BACKED NOTES
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the “Issuing Entity”), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of ___________ DOLLARS payable on each Payment Date in an amount equal to the result obtained by multiplying (i) a fraction the numerator of which is $______ and the denominator of which is $129,500,000 by (ii) the aggregate amount, if any, payable from the Note Distribution Account in respect of principal on the Class A-2b Notes pursuant to Section 3.01 of the Indenture dated as of April 19, 2017 (the “Indenture”), between the Issuing Entity and U.S. Bank National Association, as Indenture Trustee (the “Indenture Trustee”); provided, however, that the entire unpaid principal amount of this Note shall be due and payable on the earlier of the August 17, 2020 Payment Date (the “Class A-2 Final Scheduled Payment Date”) and the Redemption Date, if any, pursuant to Section 10.01 of the Indenture. Principal payable with respect to the Class A-2 Notes shall be made pro rata between the Class A-2a Notes and the Class A-2b Notes. Generally, no payments of principal of the Class A-2b Notes shall be made until the Class A-1 Notes have been paid in full. Capitalized terms used but not defined herein are defined in Article I of the Indenture, which also contains rules as to construction that shall be applicable herein.
Ex. A-2b-1 |
BY ACQUIRING A CLASS A-2B NOTE, EACH INITIAL PURCHASER, TRANSFEREE AND OWNER OF A BENEFICIAL INTEREST IN SUCH NOTE WILL BE DEEMED TO REPRESENT THAT EITHER (1) IT IS NOT ACQUIRING THE NOTES WITH THE ASSETS OF (i) AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), (ii) A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY OR (iv) ANY PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”) OR (2) THE ACQUISITION AND HOLDING OF THE CLASS A-2B NOTES WILL NOT GIVE RISE TO A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR SIMILAR LAW.
The Issuing Entity will pay interest on this Note at the rate per annum shown above (provided, that for any Interest Accrual Period for which the sum of One-Month LIBOR + 0.14% is less than 0.00%, the interest rate shall be deemed to be 0.00%) on each Payment Date until the principal of this Note is paid or made available for payment, on the principal amount of this Note outstanding on the preceding Payment Date (after giving effect to all payments of principal made on the preceding Payment Date), subject to certain limitations contained in the last sentence of Section 3.01 of the Indenture. Interest on this Note will accrue for each Payment Date from and including the most recent Payment Date on which interest has been paid (in the case of the initial Payment Date, from the Closing Date) to but excluding such current Payment Date. Interest will be computed on the basis of the actual number of days in the Interest Accrual Period divided by 360. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuing Entity with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
Ex. A-2b-2 |
IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
Date: _________________ | WORLD OMNI AUTO RECEIVABLES TRUST 2017-A |
By: Wells Fargo Delaware Trust Company, N.A., not in its individual capacity but solely as Owner Trustee |
By: | ||
Name: | ||
Title: |
INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
Date: _________________ | U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee |
By: | ||
Name: | ||
Title: |
Ex. A-2b-3 |
This Note is one of a duly authorized issue of Notes of the Issuing Entity, designated as its Class A-2b One-Month LIBOR plus 0.14% Asset-Backed Notes (herein called the “Class A-2b Notes”), all issued under the Indenture, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuing Entity, the Indenture Trustee and the Holders of the Notes. The Class A-2b Notes are subject to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes (collectively, the “Notes”) are and will be equally and ratably secured by the collateral pledged as security therefor as provided in the Indenture and subject to the subordination provisions therein.
Principal of the Class A-2b Notes will be payable on each Payment Date and, if the Class A-2b Notes have not been paid in full prior to the Class A-2 Final Scheduled Payment Date, on the Class A-2 Final Scheduled Payment Date, in an amount described on the face hereof. “Payment Date” means the fifteenth day of each month or, if such day is not a Business Day, the immediately following Business Day. The initial Payment Date will be May 15, 2017.
As described above, the entire unpaid principal amount of this Note shall be due and payable on the Class A-2 Final Scheduled Payment Date. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable on the date on which an Event of Default shall have occurred and be continuing and the Indenture Trustee or the Holders of Notes representing at least a majority of the Outstanding Amount of the Controlling Securities have declared the Notes to be immediately due and payable in the manner provided in Section 5.02 of the Indenture. All principal payments on the Class A-2b Notes shall be made pro rata to the Class A-2b Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Note, shall be made by check mailed to the Person whose name appears as the Registered Holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on each Record Date, except that with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Record Date without requiring that this Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) effected by any payments made on any Payment Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the then remaining unpaid principal amount of this Note on a Payment Date, then the Indenture Trustee, in the name of and on behalf of the Issuing Entity, will notify the Person who was the Registered Holder hereof as of the Record Date preceding such Payment Date by notice mailed or transmitted by facsimile prior to such Payment Date, and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Indenture Trustee’s principal Corporate Trust Office or at the office of the Indenture Trustee’s agent appointed for such purposes located in the City of St. Paul, Minnesota.
Ex. A-2b-4 |
The Issuing Entity shall pay interest on overdue installments of interest at the Class A-2b Interest Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set forth therein and on the face hereof, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuing Entity pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Securities Transfer Agent’s Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes of authorized denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuing Entity or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees by accepting the benefits of the Indenture that such Noteholder or Note Owner will not at any time institute against the Depositor, World Omni or the Issuing Entity, or join in any institution against the Depositor, World Omni or the Issuing Entity of, any involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, the Indenture or the Basic Documents.
Ex. A-2b-5 |
The Issuing Entity has entered into the Indenture and this Note is issued with the intention that, for federal, state and local income, single business and franchise tax purposes, the Notes will qualify as indebtedness secured by the Trust Estate. Each Noteholder (other than the Depositor and any Affiliate of the Depositor that is not treated as a separate entity from the Depositor for federal income tax purposes), by acceptance of a Note (and each Note Owner by acceptance of a beneficial interest in a Note), agrees to treat the Notes for federal, state and local income, single business and franchise tax purposes as indebtedness of the Issuing Entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees by accepting the benefits of the Indenture that such Noteholder or Note Owner shall provide to the Person from whom it receives payments on the Notes (i) properly completed and signed tax certifications, for a U.S. Person, on Internal Revenue Service Form W-9 and, for a Person that is not a U.S. Person, on the appropriate Internal Revenue Service Form W-8 and (ii) upon request, information sufficient to eliminate the imposition of, or determine the amount of, such withholding or deduction under FATCA. The Indenture Trustee has the right to withhold any amounts (properly withholdable under law and without any corresponding gross-up) payable to a Noteholder or Note Owner that fails to comply with the requirements of the preceding sentence.
Prior to the due presentment for registration of transfer of this Note, the Issuing Entity, the Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuing Entity, the Indenture Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuing Entity and the rights of the Holders of the Notes under the Indenture at any time by the Issuing Entity with the consent of the Holders of Notes representing a majority of the Outstanding Amount of all Notes at the time Outstanding. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Amount of the Controlling Securities, on behalf of the Holders of all the Notes, to waive compliance by the Issuing Entity with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one or more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of Holders of the Notes issued thereunder.
The term “Issuing Entity” as used in this Note includes any successor to the Issuing Entity under the Indenture.
Ex. A-2b-6 |
The Issuing Entity is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuing Entity, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Basic Documents, none of U.S. Bank National Association in its individual capacity, Wells Fargo Delaware Trust Company, N.A., in its individual capacity, any owner of a beneficial interest in the Issuing Entity, or any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, nor shall recourse be had to any of them for, the payment of principal of or interest on this Note or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in the Indenture. The Holder of this Note by its acceptance hereof agrees that, except as expressly provided in the Basic Documents, in the case of an Event of Default under the Indenture, the Holder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuing Entity for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.
Ex. A-2b-7 |
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee) |
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints ______________________________________________________________, attorney, transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated:_____________________ | _____________________________________* |
Signature Guaranteed: | ||
* NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
Ex. A-2b-8 |
EXHIBIT A-3
[FORM OF CLASS A-3 NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUING ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED | $__________ |
No.: ____ | CUSIP No.: _____ |
ISIN No.: _____ | |
CINS No.: ……………….. |
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A
CLASS A-3 1.93% ASSET-BACKED NOTES
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the “Issuing Entity”), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of ___________ DOLLARS payable on each Payment Date in an amount equal to the result obtained by multiplying (i) a fraction the numerator of which is $________ and the denominator of which is $426,000,000 by (ii) the aggregate amount, if any, payable from the Note Distribution Account in respect of principal on the Class A-3 Notes pursuant to Section 3.01 of the Indenture dated as of April 19, 2017 (the “Indenture”), between the Issuing Entity and U.S. Bank National Association, as Indenture Trustee (the “Indenture Trustee”); provided, however, that the entire unpaid principal amount of this Note shall be due and payable on the earlier of the September 15, 2022 Payment Date (the “Class A-3 Final Scheduled Payment Date”) and the Redemption Date, if any, pursuant to Section 10.01 of the Indenture. Generally, no payments of principal of the Class A-3 Notes shall be made until the Class A-1 and Class A-2 Notes have been paid in full. Capitalized terms used but not defined herein are defined in Article I of the Indenture, which also contains rules as to construction that shall be applicable herein.
Ex. A-3-1 |
BY ACQUIRING A CLASS A-3 NOTE, EACH INITIAL PURCHASER, TRANSFEREE AND OWNER OF A BENEFICIAL INTEREST IN SUCH NOTE WILL BE DEEMED TO REPRESENT THAT EITHER (1) IT IS NOT ACQUIRING THE NOTES WITH THE ASSETS OF (i) AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), (ii) A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY OR (iv) ANY PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”) OR (2) THE ACQUISITION AND HOLDING OF THE CLASS A-3 NOTES WILL NOT GIVE RISE TO A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR SIMILAR LAW.
The Issuing Entity will pay interest on this Note at the rate per annum shown above on each Payment Date until the principal of this Note is paid or made available for payment, on the principal amount of this Note outstanding on the preceding Payment Date (after giving effect to all payments of principal made on the preceding Payment Date), subject to certain limitations contained in the last sentence of Section 3.01 of the Indenture. Interest on this Note will accrue for each Payment Date from and including the 15th day of the preceding calendar month (or, for the initial interest accrual period, from and including the Closing Date) to but excluding the 15th day of the current calendar month. Interest will be computed on the basis of a 360-day year of twelve 30-day months. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuing Entity with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
Ex. A-3-2 |
IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
Date: _________________ | WORLD OMNI AUTO RECEIVABLES TRUST 2017-A |
By: Wells Fargo Delaware Trust Company, N.A., not in its individual capacity but solely as Owner Trustee |
By: | ||
Name: | ||
Title: |
INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
Date: _________________ | U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee |
By: | ||
Name: | ||
Title: |
Ex. A-3-3 |
This Note is one of a duly authorized issue of Notes of the Issuing Entity, designated as its Class A-3 1.93% Asset-Backed Notes (herein called the “Class A-3 Notes”), all issued under the Indenture, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuing Entity, the Indenture Trustee and the Holders of the Notes. The Class A-3 Notes are subject to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes (collectively, the “Notes”) are and will be equally and ratably secured by the collateral pledged as security therefor as provided in the Indenture and subject to the subordination provisions therein.
Principal of the Class A-3 Notes will be payable on each Payment Date and, if the Class A-3 Notes have not been paid in full prior to the Class A-3 Final Scheduled Payment Date, on the Class A-3 Final Scheduled Payment Date, in an amount described on the face hereof. “Payment Date” means the fifteenth day of each month or, if such day is not a Business Day, the immediately following Business Day. The initial Payment Date will be May 15, 2017.
As described above, the entire unpaid principal amount of this Note shall be due and payable on the Class A-3 Final Scheduled Payment Date. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable on the date on which an Event of Default shall have occurred and be continuing and the Indenture Trustee or the Holders of Notes representing at least a majority of the Outstanding Amount of the Controlling Securities have declared the Notes to be immediately due and payable in the manner provided in Section 5.02 of the Indenture. All principal payments on the Class A-3 Notes shall be made pro rata to the Class A-3 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Note, shall be made by check mailed to the Person whose name appears as the Registered Holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on each Record Date, except that with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Record Date without requiring that this Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) effected by any payments made on any Payment Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the then remaining unpaid principal amount of this Note on a Payment Date, then the Indenture Trustee, in the name of and on behalf of the Issuing Entity, will notify the Person who was the Registered Holder hereof as of the Record Date preceding such Payment Date by notice mailed or transmitted by facsimile prior to such Payment Date, and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Indenture Trustee’s principal Corporate Trust Office or at the office of the Indenture Trustee’s agent appointed for such purposes located in the City of St. Paul, Minnesota.
Ex. A-3-4 |
The Issuing Entity shall pay interest on overdue installments of interest at the Class A-3 Interest Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set forth therein and on the face hereof, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuing Entity pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Securities Transfer Agent’s Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes of authorized denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuing Entity or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees by accepting the benefits of the Indenture that such Noteholder or Note Owner will not at any time institute against the Depositor, World Omni or the Issuing Entity, or join in any institution against the Depositor, World Omni or the Issuing Entity of, any involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, the Indenture or the Basic Documents.
Ex. A-3-5 |
The Issuing Entity has entered into the Indenture and this Note is issued with the intention that, for federal, state and local income, single business and franchise tax purposes, the Notes will qualify as indebtedness secured by the Trust Estate. Each Noteholder (other than the Depositor and any Affiliate of the Depositor that is not treated as a separate entity from the Depositor for federal income tax purposes), by acceptance of a Note (and each Note Owner by acceptance of a beneficial interest in a Note), agrees to treat the Notes for federal, state and local income, single business and franchise tax purposes as indebtedness of the Issuing Entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees by accepting the benefits of the Indenture that such Noteholder or Note Owner shall provide to the Person from whom it receives payments on the Notes (i) properly completed and signed tax certifications, for a U.S. Person, on Internal Revenue Service Form W-9 and, for a Person that is not a U.S. Person, on the appropriate Internal Revenue Service Form W-8 and (ii) upon request, information sufficient to eliminate the imposition of, or determine the amount of, such withholding or deduction under FATCA. The Indenture Trustee has the right to withhold any amounts (properly withholdable under law and without any corresponding gross-up) payable to a Noteholder or Note Owner that fails to comply with the requirements of the preceding sentence.
Prior to the due presentment for registration of transfer of this Note, the Issuing Entity, the Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuing Entity, the Indenture Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuing Entity and the rights of the Holders of the Notes under the Indenture at any time by the Issuing Entity with the consent of the Holders of Notes representing a majority of the Outstanding Amount of all Notes at the time Outstanding. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Amount of the Controlling Securities, on behalf of the Holders of all the Notes, to waive compliance by the Issuing Entity with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one or more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of Holders of the Notes issued thereunder.
The term “Issuing Entity” as used in this Note includes any successor to the Issuing Entity under the Indenture.
Ex. A-3-6 |
The Issuing Entity is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuing Entity, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Basic Documents, none of U.S. Bank National Association in its individual capacity, Wells Fargo Delaware Trust Company, N.A., in its individual capacity, any owner of a beneficial interest in the Issuing Entity, or any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, nor shall recourse be had to any of them for, the payment of principal of or interest on this Note or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in the Indenture. The Holder of this Note by its acceptance hereof agrees that, except as expressly provided in the Basic Documents, in the case of an Event of Default under the Indenture, the Holder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuing Entity for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.
Ex. A-3-7 |
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee) |
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints ______________________________________________________________, attorney, transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated:_____________________ | _____________________________________* |
Signature Guaranteed: | |
_____________________________________* |
* NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
Ex. A-3-8 |
EXHIBIT A-4
[FORM OF CLASS A-4 NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUING ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED | $__________ |
No.: ____ | CUSIP No.: _____ |
ISIN No.: _____ | |
CINS No.: ……………….. |
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A
CLASS A-4 2.24% ASSET-BACKED NOTES
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the “Issuing Entity”), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of ___________ DOLLARS payable on each Payment Date in an amount equal to the result obtained by multiplying (i) a fraction the numerator of which is $______ and the denominator of which is $94,750,000 by (ii) the aggregate amount, if any, payable from the Note Distribution Account in respect of principal on the Class A-4 Notes pursuant to Section 3.01 of the Indenture dated as of April 19, 2017 (the “Indenture”), between the Issuing Entity and U.S. Bank National Association, as Indenture Trustee (the “Indenture Trustee”); provided, however, that the entire unpaid principal amount of this Note shall be due and payable on the earlier of the June 15, 2023 Payment Date (the “Class A-4 Final Scheduled Payment Date”) and the Redemption Date, if any, pursuant to Section 10.01 of the Indenture. Generally, no payments of principal of the Class A-4 Notes shall be made until the Class A-1 Notes, Class A-2 Notes and Class A-3 Notes have been paid in full. Capitalized terms used but not defined herein are defined in Article I of the Indenture, which also contains rules as to construction that shall be applicable herein.
Ex. A-4-1 |
BY ACQUIRING A CLASS A-4 NOTE, EACH INITIAL PURCHASER, TRANSFEREE AND OWNER OF A BENEFICIAL INTEREST IN SUCH NOTE WILL BE DEEMED TO REPRESENT THAT EITHER (1) IT IS NOT ACQUIRING THE NOTES WITH THE ASSETS OF (i) AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), (ii) A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY OR (iv) ANY PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”) OR (2) THE ACQUISITION AND HOLDING OF THE CLASS A-4 NOTES WILL NOT GIVE RISE TO A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR SIMILAR LAW.
The Issuing Entity will pay interest on this Note at the rate per annum shown above on each Payment Date until the principal of this Note is paid or made available for payment, on the principal amount of this Note outstanding on the preceding Payment Date (after giving effect to all payments of principal made on the preceding Payment Date), subject to certain limitations contained in the last sentence of Section 3.01 of the Indenture. Interest on this Note will accrue for each Payment Date from and including the 15th day of the preceding calendar month (or, for the initial interest accrual period, from and including the Closing Date) to but excluding the 15th day of the current calendar month. Interest will be computed on the basis of a 360-day year of twelve 30-day months. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuing Entity with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
Ex. A-4-2 |
IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
Date: _________________ | WORLD OMNI AUTO RECEIVABLES TRUST 2017-A |
By: Wells Fargo Delaware Trust Company, N.A., not in its individual capacity but solely as Owner Trustee |
By: | ||
Name: | ||
Title: |
INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
Date: _________________ | U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee |
By: | ||
Name: | ||
Title: |
Ex. A-4-3 |
This Note is one of a duly authorized issue of Notes of the Issuing Entity, designated as its Class A-4 2.24% Asset-Backed Notes (herein called the “Class A-4 Notes”), all issued under the Indenture, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuing Entity, the Indenture Trustee and the Holders of the Notes. The Class A-4 Notes are subject to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes (collectively, the “Notes”) are and will be equally and ratably secured by the collateral pledged as security therefor as provided in the Indenture and subject to the subordination provisions therein.
Principal of the Class A-4 Notes will be payable on each Payment Date and, if the Class A-4 Notes have not been paid in full prior to the Class A-4 Final Scheduled Payment Date, on the Class A-4 Final Scheduled Payment Date, in an amount described on the face hereof. “Payment Date” means the fifteenth day of each month or, if such day is not a Business Day, the immediately following Business Day. The initial Payment Date will be May 15, 2017.
As described above, the entire unpaid principal amount of this Note shall be due and payable on the Class A-4 Final Scheduled Payment Date. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable on the date on which an Event of Default shall have occurred and be continuing and the Indenture Trustee or the Holders of Notes representing at least a majority of the Outstanding Amount of the Controlling Securities have declared the Notes to be immediately due and payable in the manner provided in Section 5.02 of the Indenture. All principal payments on the Class A-4 Notes shall be made pro rata to the Class A-4 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Note, shall be made by check mailed to the Person whose name appears as the Registered Holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on each Record Date, except that with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Record Date without requiring that this Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) effected by any payments made on any Payment Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the then remaining unpaid principal amount of this Note on a Payment Date, then the Indenture Trustee, in the name of and on behalf of the Issuing Entity, will notify the Person who was the Registered Holder hereof as of the Record Date preceding such Payment Date by notice mailed or transmitted by facsimile prior to such Payment Date, and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Indenture Trustee’s principal Corporate Trust Office or at the office of the Indenture Trustee’s agent appointed for such purposes located in the City of St. Paul, Minnesota.
Ex. A-4-4 |
The Issuing Entity shall pay interest on overdue installments of interest at the Class A-4 Interest Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set forth therein and on the face hereof, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuing Entity pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Securities Transfer Agent’s Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes of authorized denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuing Entity or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees by accepting the benefits of the Indenture that such Noteholder or Note Owner will not at any time institute against the Depositor, World Omni or the Issuing Entity, or join in any institution against the Depositor, World Omni or the Issuing Entity of, any involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, the Indenture or the Basic Documents.
Ex. A-4-5 |
The Issuing Entity has entered into the Indenture and this Note is issued with the intention that, for federal, state and local income, single business and franchise tax purposes, the Notes will qualify as indebtedness secured by the Trust Estate. Each Noteholder (other than the Depositor and any Affiliate of the Depositor that is not treated as a separate entity from the Depositor for federal income tax purposes), by acceptance of a Note (and each Note Owner by acceptance of a beneficial interest in a Note), agrees to treat the Notes for federal, state and local income, single business and franchise tax purposes as indebtedness of the Issuing Entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees by accepting the benefits of the Indenture that such Noteholder or Note Owner shall provide to the Person from whom it receives payments on the Notes (i) properly completed and signed tax certifications, for a U.S. Person, on Internal Revenue Service Form W-9 and, for a Person that is not a U.S. Person, on the appropriate Internal Revenue Service Form W-8 and (ii) upon request, information sufficient to eliminate the imposition of, or determine the amount of, such withholding or deduction under FATCA. The Indenture Trustee has the right to withhold any amounts (properly withholdable under law and without any corresponding gross-up) payable to a Noteholder or Note Owner that fails to comply with the requirements of the preceding sentence.
Prior to the due presentment for registration of transfer of this Note, the Issuing Entity, the Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuing Entity, the Indenture Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuing Entity and the rights of the Holders of the Notes under the Indenture at any time by the Issuing Entity with the consent of the Holders of Notes representing a majority of the Outstanding Amount of all Notes at the time Outstanding. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Amount of the Controlling Securities, on behalf of the Holders of all the Notes, to waive compliance by the Issuing Entity with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one or more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of Holders of the Notes issued thereunder.
The term “Issuing Entity” as used in this Note includes any successor to the Issuing Entity under the Indenture.
Ex. A-4-6 |
The Issuing Entity is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuing Entity, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Basic Documents, none of U.S. Bank National Association in its individual capacity, Wells Fargo Delaware Trust Company, N.A., in its individual capacity, any owner of a beneficial interest in the Issuing Entity, or any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, nor shall recourse be had to any of them for, the payment of principal of or interest on this Note or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in the Indenture. The Holder of this Note by its acceptance hereof agrees that, except as expressly provided in the Basic Documents, in the case of an Event of Default under the Indenture, the Holder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuing Entity for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.
Ex. A-4-7 |
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee) |
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints ______________________________________________________________, attorney, transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated:_____________________ | _____________________________________* |
Signature Guaranteed: | ||
_____________________________________* |
* NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
Ex. A-4-8 |
EXHIBIT B
[FORM OF CLASS B NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUING ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED | $________ |
No.: ___ | CUSIP No.: _____ |
ISIN No.: _____ | |
CINS No.: ……………….. |
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A
CLASS B 2.38% ASSET-BACKED NOTES
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A, a statutory trust organized and existing under the laws of the State of Delaware (herein referred to as the “Issuing Entity”), for value received, hereby promises to pay to ________, or registered assigns, the principal sum of ___________ DOLLARS payable on each Payment Date in an amount equal to the result obtained by multiplying (i) a fraction the numerator of which is $________ and the denominator of which is $34,700,000 by (ii) the aggregate amount, if any, payable from the Note Distribution Account in respect of principal on the Class B Notes pursuant to Section 3.01 of the Indenture dated as of April 19, 2017 (the “Indenture”), between the Issuing Entity and U.S. Bank National Association, as Indenture Trustee (the “Indenture Trustee”); provided, however, that the entire unpaid principal amount of this Note shall be due and payable on the earlier of the February 15, 2024 Payment Date (the “Class B Final Scheduled Payment Date”) and the Redemption Date, if any, pursuant to Section 10.01 of the Indenture. Generally, no payments of principal of the Class B Notes shall be made until the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes and Class A-4 Notes have been paid in full. Capitalized terms used but not defined herein are defined in Article I of the Indenture, which also contains rules as to construction that shall be applicable herein.
Ex. B-1 |
BY ACQUIRING A CLASS B NOTE, EACH INITIAL PURCHASER, TRANSFEREE AND OWNER OF A BENEFICIAL INTEREST IN SUCH NOTE WILL BE DEEMED TO REPRESENT THAT EITHER (1) IT IS NOT ACQUIRING THE NOTES WITH THE ASSETS OF (i) AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), (ii) A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY OR (iv) ANY PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”) OR (2) THE ACQUISITION AND HOLDING OF THE CLASS B NOTES WILL NOT GIVE RISE TO A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR SIMILAR LAW.
The Issuing Entity will pay interest on this Note at the rate per annum shown above on each Payment Date until the principal of this Note is paid or made available for payment, on the principal amount of this Note outstanding on the preceding Payment Date (after giving effect to all payments of principal made on the preceding Payment Date), subject to certain limitations contained in the last sentence of Section 3.01 of the Indenture. Interest on this Note will accrue for each Payment Date from and including the 15th day of the preceding calendar month (or, for the initial interest accrual period, from and including the Closing Date) to but excluding the 15th day of the current calendar month. Interest will be computed on the basis of a 360-day year of twelve 30-day months. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuing Entity with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
Ex. B-2 |
IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
Date: _________________ | WORLD OMNI AUTO RECEIVABLES TRUST 2017-A |
By: Wells Fargo Delaware Trust Company, N.A., not in its individual capacity but solely as Owner Trustee |
By: | ||
Name: | ||
Title: |
INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
Date: _________________ | U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee |
By: | ||
Name: | ||
Title: |
Ex. B-3 |
This Note is one of a duly authorized issue of Notes of the Issuing Entity, designated as its Class B 2.38% Asset-Backed Notes (herein called the “Class B Notes”), all issued under the Indenture, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuing Entity, the Indenture Trustee and the Holders of the Notes. The Class B Notes are subject to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes (collectively, the “Notes”) are and will be equally and ratably secured by the collateral pledged as security therefor as provided in the Indenture and subject to the subordination provisions therein.
Principal of the Class B Notes will be payable on each Payment Date and, if the Class B Notes have not been paid in full prior to the Class B Final Scheduled Payment Date, on the Class B Final Scheduled Payment Date, in an amount described on the face hereof. “Payment Date” means the fifteenth day of each month or, if such day is not a Business Day, the immediately following Business Day. The initial Payment Date will be May 15, 2017.
As described above, the entire unpaid principal amount of this Note shall be due and payable on the Class B Final Scheduled Payment Date. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable on the date on which an Event of Default shall have occurred and be continuing and the Indenture Trustee or the Holders of Notes representing at least a majority of the Outstanding Amount of the Controlling Securities have declared the Notes to be immediately due and payable in the manner provided in Section 5.02 of the Indenture. All principal payments on the Class B Notes shall be made pro rata to the Class B Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date, together with the installment of principal, if any, to the extent not in full payment of this Note, shall be made by check mailed to the Person whose name appears as the Registered Holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on each Record Date, except that with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Record Date without requiring that this Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) effected by any payments made on any Payment Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the then remaining unpaid principal amount of this Note on a Payment Date, then the Indenture Trustee, in the name of and on behalf of the Issuing Entity, will notify the Person who was the Registered Holder hereof as of the Record Date preceding such Payment Date by notice mailed or transmitted by facsimile prior to such Payment Date, and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Indenture Trustee’s principal Corporate Trust Office or at the office of the Indenture Trustee’s agent appointed for such purposes located in the City of St. Paul, Minnesota.
Ex. B-4 |
The Issuing Entity shall pay interest on overdue installments of interest at the Class B Interest Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set forth therein and on the face hereof, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuing Entity pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Securities Transfer Agent’s Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes of authorized denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuing Entity or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees by accepting the benefits of the Indenture that such Noteholder or Note Owner will not at any time institute against the Depositor, World Omni or the Issuing Entity, or join in any institution against the Depositor, World Omni or the Issuing Entity of, any involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, the Indenture or the Basic Documents.
Ex. B-5 |
The Issuing Entity has entered into the Indenture and this Note is issued with the intention that, for federal, state and local income, single business and franchise tax purposes, the Notes will qualify as indebtedness secured by the Trust Estate. Each Noteholder (other than the Depositor and any Affiliate of the Depositor that is not treated as a separate entity from the Depositor for federal income tax purposes), by acceptance of a Note (and each Note Owner by acceptance of a beneficial interest in a Note), agrees to treat the Notes for federal, state and local income, single business and franchise tax purposes as indebtedness of the Issuing Entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees by accepting the benefits of the Indenture that such Noteholder or Note Owner shall provide to the Person from whom it receives payments on the Notes (i) properly completed and signed tax certifications, for a U.S. Person, on Internal Revenue Service Form W-9 and, for a Person that is not a U.S. Person, on the appropriate Internal Revenue Service Form W-8 and (ii) upon request, information sufficient to eliminate the imposition of, or determine the amount of, such withholding or deduction under FATCA. The Indenture Trustee has the right to withhold any amounts (properly withholdable under law and without any corresponding gross-up) payable to a Noteholder or Note Owner that fails to comply with the requirements of the preceding sentence.
Prior to the due presentment for registration of transfer of this Note, the Issuing Entity, the Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuing Entity, the Indenture Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuing Entity and the rights of the Holders of the Notes under the Indenture at any time by the Issuing Entity with the consent of the Holders of Notes representing a majority of the Outstanding Amount of all Notes at the time Outstanding. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Amount of the Controlling Securities, on behalf of the Holders of all the Notes, to waive compliance by the Issuing Entity with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one or more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of Holders of the Notes issued thereunder.
The term “Issuing Entity” as used in this Note includes any successor to the Issuing Entity under the Indenture.
Ex. B-6 |
The Issuing Entity is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuing Entity, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly provided in the Basic Documents, none of U.S. Bank National Association in its individual capacity, Wells Fargo Delaware Trust Company, N.A., in its individual capacity, any owner of a beneficial interest in the Issuing Entity, or any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, nor shall recourse be had to any of them for, the payment of principal of or interest on this Note or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in the Indenture. The Holder of this Note by its acceptance hereof agrees that, except as expressly provided in the Basic Documents, in the case of an Event of Default under the Indenture, the Holder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuing Entity for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.
Ex. B-7 |
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee) |
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints ______________________________________________________________, attorney, transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated:_____________________ | _____________________________________* |
Signature Guaranteed: | |
_____________________________________* |
* NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
Ex. B-8 |
EXHIBIT C
SERVICING CRITERIA FOR INDENTURE TRUSTEE’S ASSESSMENT OF COMPLIANCE
Reference |
Servicing Criteria |
|
General Servicing Considerations |
||
1122(d)(1)(i) | Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements. | |
1122(d)(1)(ii) | If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities. | |
1122(d)(1)(iii) | Any requirements in the transaction agreements to maintain a back-up servicer for the credit card accounts or accounts are maintained. | |
1122(d)(1)(iv) | A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements. | |
1122(d)(1)(v) |
Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information. |
|
Cash Collection and Administration | ||
1122(d)(2)(i) | Payments on pool assets are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements. | |
1122(d)(2)(ii) | Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel. | Indenture Trustee |
1122(d)(2)(iii) | Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements. | |
1122(d)(2)(iv) | The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements. | Indenture Trustee |
1122(d)(2)(v) | Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act. | Indenture Trustee |
1122(d)(2)(vi) | Unissued checks are safeguarded so as to prevent unauthorized access. | |
1122(d)(2)(vii) | Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements. |
Ex. C-1 |
Reference |
Servicing Criteria |
|
Investor Remittances and Reporting |
||
1122(d)(3)(i) | Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of credit card accounts serviced by the Servicer. | |
1122(d)(3)(ii) | Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements. | Indenture Trustee |
1122(d)(3)(iii) | Disbursements made to an investor are posted within two business days to the Servicer’s investor records, or such other number of days specified in the transaction agreements. | Indenture Trustee |
1122(d)(3)(iv) | Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements. | Indenture Trustee |
Pool Asset Administration | ||
1122(d)(4)(i) | Collateral or security on credit card accounts is maintained as required by the transaction agreements or related asset pool documents. | |
1122(d)(4)(ii) | Pool assets and related documents are safeguarded as required by the transaction agreements | |
1122(d)(4)(iii) | Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements. | |
1122(d)(4)(iv) | Payments on pool assets, including any payoffs, made in accordance with the related pool assets documents are posted to the Servicer’s obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related asset pool documents. | |
1122(d)(4)(v) | The Servicer’s records regarding the accounts and the accounts agree with the Servicer’s records with respect to an obligor’s unpaid principal balance. | |
1122(d)(4)(vi) | Changes with respect to the terms or status of an obligor’s account (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents. | |
1122(d)(4)(vii) | Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements. | |
1122(d)(4)(viii) | Records documenting collection efforts are maintained during the period a Account is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent Accounts including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment). | |
1122(d)(4)(ix) | Adjustments to interest rates or rates of return for Accounts with variable rates are computed based on the related Account documents. | |
1122(d)(4)(x) | Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s Account documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable Account documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment of the related Accounts, or such other number of days specified in the transaction agreements. |
Ex. C-2 |
Reference |
Servicing Criteria |
|
1122(d)(4)(xi) | Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements. | |
1122(d)(4)(xii) | Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or omission. | |
1122(d)(4)(xiii) | Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction agreements. | |
1122(d)(4)(xiv) | Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements. | |
1122(d)(4)(xv) | Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements. | |
Ex. C-3 |
EXHIBIT D
FORM OF INDENTURE TRUSTEE’S ANNUAL CERTIFICATION
RE: | WORLD OMNI AUTO RECEIVABLES TRUST 2017-A |
U.S. Bank National Association not in its individual capacity but solely as indenture trustee (the “Indenture Trustee”), certifies to World Omni Auto Receivables LLC (the “Depositor”), and its officers, with the knowledge and intent that they will rely upon this certification, that:
1. | It has reviewed the report on assessment of the Indenture Trustee’s compliance provided in accordance with Rules 13a-18 and 15d-18 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing Assessment”), and the registered public accounting firm’s attestation report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of Regulation AB (the “Attestation Report”) that were delivered by the Indenture Trustee to the Depositor pursuant to the Indenture, dated as of April 19, 2017, by and between the Indenture Trustee and World Omni Auto Receivables Trust 2017-A (collectively, the “Indenture Trustee Information”); |
2. | To the best of its knowledge, the Servicing Assessment, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in the light of the circumstances under which such statements were made, not misleading with respect to the period of time covered by the Indenture Trustee Information; |
3. | To the best of its knowledge, all of the Indenture Trustee Information required to be provided by the Indenture Trustee under the Agreement has been provided to the Depositor; and |
4. | To the best of its knowledge, except as disclosed in the Servicing Assessment or the Attestation Report, the Indenture Trustee has fulfilled its obligations under the Agreement in all material respects. |
U.S. Bank National Association, | ||
not in its individual capacity but solely as | ||
Indenture Trustee | ||
By: | ||
Name: | ||
Title: |
Date: _________________________
Ex. D |
EXHIBIT E
FORM OF TRANSFEROR CERTIFICATE
[DATE]
U.S. Bank National Association
111 East Fillmore Avenue
EP-MN-WS2N
St. Paul, MN 55107
Attention: Bondholder Services, WOART 2017-A
World Omni Auto Receivables LLC
190 Jim Moran Boulevard
Deerfield Beach, FL 33442
World Omni Auto Receivables Trust 2017-A
c/o Wells Fargo Delaware Trust Company, N.A.
as Owner Trustee of World Omni Auto Receivables Trust 2017-A
919 N. Market Street
Suite 1600, 7th Floor
Wilmington, DE 19801
Attention: Corporate Trust Services
Re: | World Omni Auto Receivables Trust 2017-A Class [ ] Notes |
Ladies and Gentlemen:
In connection with our disposition of the above-referenced Class ___ Notes (the “Class [___] Notes”) we certify that (a) we understand that the Class ___ Notes have not been registered under the Securities Act of 1933, as amended (the “Act”), and are being transferred by us in a transaction that is exempt from the registration requirements of the Act and (b) we have not offered or sold any Class ___ Notes to, or solicited offers to buy any Class ___ Notes from, any person, or otherwise approached or negotiated with any person with respect thereto, in a manner that would be deemed, or taken any other action which would result in, a violation of Section 5 of the Act.
Ex. E-1 |
Very truly yours, | ||
[NAME OF TRANSFEROR] | ||
By: | ||
Authorized Officer |
Ex. E-2 |
EXHIBIT F
FORM OF INVESTMENT LETTER
U.S. Bank National Association
190 South LaSalle Street, 7th floor
Chicago, Illinois 60603
Attention: Corporate Trust Services, WOART 2017-A
World Omni Auto Receivables LLC
190 Jim Moran Boulevard
Deerfield Beach, FL 33442
World Omni Auto Receivables Trust 2017-A
c/o Wells Fargo Delaware Trust Company, N.A.
as Owner Trustee of World Omni Auto Receivables Trust 2017-A
919 N. Market Street
Suite 1600, 7th Floor
Wilmington, Delaware 19801
Attention: Corporate Trust Services
Ladies and Gentlemen:
In connection with our proposed purchase of Class ___ Notes (the “Class ___ Notes”) of World Omni Auto Receivables Trust 2017-A (the “Issuing Entity”), we confirm that:
Ex. F-1 |
1. We understand that the Class ___ Notes have not been registered under the Securities Act of 1933, as amended (the “1933 Act”), and may not be sold except as permitted in the following sentence. We understand and agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, (x) that such Class ___ Notes are being offered only in a transaction not involving any public offering within the meaning of the 1933 Act and (y) that such Class ___ Notes may be resold, pledged or transferred only (i) to World Omni Auto Receivables LLC (“WOAR”), (ii) to an “accredited investor” as defined in Rule 501(a)(1),(2),(3) or (7) of Regulation D under the 1933 Act (an “Accredited Investor”) acting for its own account (and not for the account of others) or as a fiduciary or agent for others (which others also are Accredited Investors unless the holder is a bank acting in its fiduciary capacity) that executes a certificate substantially in the form hereof, (iii) so long as such Class ___ Note is eligible for resale pursuant to Rule 144A under the 1933 Act (“Rule 144A”), to a person whom we reasonably believe after due inquiry is a “qualified institutional buyer” as defined in Rule 144A, acting for its own account (and not for the account of others) or as a fiduciary or agent for others (which others also are “qualified institutional buyers”) to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A or (iv) in a sale, pledge or other transfer made in a transaction otherwise exempt from the registration requirements of the 1933 Act, in which case the Indenture Trustee shall require that both the prospective transferor and the prospective transferee certify to the Indenture Trustee and WOAR in writing the facts surrounding such transfer, which certification shall be in form and substance satisfactory to the Indenture Trustee and WOAR. Except in the case of a transfer described in clauses (i) or (iii) above, the Indenture Trustee shall require that a written opinion of counsel (which will not be at the expense of WOAR, any Affiliate of WOAR or the Indenture Trustee), satisfactory to the Indenture Trustee and WOAR, be delivered to the Indenture Trustee and WOAR to the effect that such transfer will not violate the 1933 Act, and will be effected in accordance with any applicable securities laws of each state of the United States. We will notify any purchaser of the Class ___ Notes from us of the above resale restrictions, if then applicable. We further understand that in connection with any transfer of the Class ___ Notes by us that the Indenture Trustee and WOAR may request, and if so requested we will furnish, such certificates and other information as they may reasonably require to confirm that any such transfer complies with the foregoing restrictions.
2. [CHECK ONE]
¨ | (a) We are an Accredited Investor acting for our own account (and not for the account of others) or as a fiduciary or agent for others (which others also are Accredited Investors unless we are a bank acting in its fiduciary capacity). We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Class ___ Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our or their investment for an indefinite period of time. We are acquiring the Class ___ Notes or investment and not with a view to, or for offer and sale in connection with, a public distribution. |
¨ | (b) We are a “qualified institutional buyer” as defined under Rule 144A under the 1933 Act and are acquiring the Class ___ Notes for our own account (and not for the account of others) or as a fiduciary or agent for others (which others also are “qualified institutional buyers”). We are familiar with Rule 144A under the 1933 Act and are aware that the seller of the Class ___ Notes and other parties intend to rely on the statements made herein and the exemption from the registration requirements of the 1933 Act provided by Rule 144A. |
Ex. F-2 |
3. If counsel satisfactory to the Indenture Trustee has rendered an opinion to the effect that the Class __ Notes to be transferred will be characterized as indebtedness for United States federal income tax purposes, either (i) we are not acquiring the Class ___ Notes with the assets of any (A) employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (B) plan subject to Section 4975 of the Code, (C) entity whose underlying assets include plan assets by reason of a plan’s investment in the entity or (D) plan that is subject to any federal, state or local law that is, to a material extent, similar to the prohibited transaction provisions of ERISA or Section 4975 of the Code (“Similar Law”) (each, a “Plan”) or (ii) our acquisition and holding of the Class ___ Notes will not give rise to a nonexempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or Similar Law. We hereby acknowledge that no transfer of any Class ___ Note shall be permitted to be made to any transferee unless either (i) such transferee is not acquiring the Class ___ Note with the assets of any Plan or (ii) the acquisition and holding of such Class ___ Note will not constitute or result in a nonexempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or Similar Law.
4. Unless counsel satisfactory to the Indenture Trustee shall have rendered an opinion to the effect that the Class ___ Notes to be transferred will be characterized as indebtedness for United States federal income tax purposes, we represent (i) that we are a United States Person (within the meaning of Section 7701(a)(30) of the Internal Revenue Code) and (ii) either (A) that we are not acquiring the Class ___ Notes with the assets of any Plan that is subject to Title I of ERISA or Section 4975 of the Code (“Plan Assets”) or (B) we are acquiring the Class __ Notes with the assets of a Plan that is not subject to Title I of ERISA or Section 4975 of the Code and the acquisition and holding of such Class __ Note will not give rise to a nonexempt prohibited transaction under Similar Law; and we acknowledge that unless the Indenture Trustee shall have received such an opinion, no transfer of any Class ___ Note shall be permitted to be made to any person who is not a United States Person or who acquires such Class ____ Notes with Plan Assets and any such purported transfer in violation of these restrictions shall be null and void.
5. We understand that the Issuing Entity, the Indenture Trustee, WOAR and others will rely upon the truth and accuracy of the foregoing acknowledgments, representations and agreements, and we agree that if any of the acknowledgments, representations and warranties deemed to have been made by us by our purchase of the Class ___ Notes, for our own account or for one or more accounts as to each of which we exercise sole investment discretion, are no longer accurate, we shall promptly notify WOAR.
6. You are entitled to rely upon this letter and you are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
Ex. F-3 |
Very truly yours, | ||
[NAME OF PURCHASER] | ||
By: | ||
Name: | ||
Title: |
Date: |
Ex. F-4 |
Exhibit 4.3
TRUST AGREEMENT
between
WORLD OMNI AUTO RECEIVABLES LLC,
as Depositor,
and
WELLS
FARGO DELAWARE TRUST COMPANY, N.A.,
as Owner Trustee
Dated April 19, 2017
TABLE OF CONTENTS
Page | ||
ARTICLE I Definitions | 1 | |
Section 1.01 | Capitalized Terms | 1 |
ARTICLE II Organization | 1 | |
Section 2.01 | Name | 1 |
Section 2.02 | Office | 1 |
Section 2.03 | Purposes and Powers | 1 |
Section 2.04 | Appointment of Owner Trustee | 2 |
Section 2.05 | Initial Capital Contribution of Owner Trust Estate | 2 |
Section 2.06 | Declaration of Trust | 3 |
Section 2.07 | Liability of the Depositor and the Certificateholders | 3 |
Section 2.08 | Title to Trust Property | 3 |
Section 2.09 | Situs of Trust | 3 |
Section 2.10 | Representations and Warranties of the Depositor | 4 |
Section 2.11 | Financing Statements | 5 |
Section 2.12 | Amended and Restated Trust Agreement | 5 |
ARTICLE III Trust Certificates and Transfer of Interests | 5 | |
Section 3.01 | [Reserved] | 5 |
Section 3.02 | The Trust Certificates | 5 |
Section 3.03 | Authentication of Trust Certificates | 5 |
Section 3.04 | Registration of Transfer and Exchange of Trust Certificates | 6 |
Section 3.05 | Mutilated, Destroyed, Lost or Stolen Trust Certificates | 8 |
Section 3.06 | Persons Deemed Owners | 9 |
Section 3.07 | Access to List of Certificateholders’ Names and Addresses | 9 |
Section 3.08 | Maintenance of Office or Agency | 9 |
Section 3.09 | Appointment of Paying Agent | 9 |
Section 3.10 | Representations of Certificateholders | 10 |
Section 3.11 | Code Section 385 Restrictions | 10 |
ARTICLE IV Actions by Owner Trustee | 11 | |
Section 4.01 | Prior Notice to Certificateholders with Respect to Certain Matters | 11 |
Section 4.02 | Action by Certificateholders with Respect to Certain Matters | 12 |
Section 4.03 | Action by Certificateholders with Respect to Bankruptcy | 12 |
Section 4.04 | Restrictions on Certificateholders’ Power | 12 |
Section 4.05 | Majority Control | 12 |
ARTICLE V Application of Trust Funds; Certain Duties | 13 | |
Section 5.01 | [Reserved] | 13 |
Section 5.02 | Application of Trust Funds | 13 |
Section 5.03 | Method of Payment | 13 |
Section 5.04 | No Segregation of Monies; No Interest | 14 |
Section 5.05 | Accounting and Reports to the Certificateholders, the Internal Revenue Service and Others | 14 |
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Section 5.06 | Signature on Returns | 15 |
ARTICLE VI Authority and Duties of Owner Trustee | 15 | |
Section 6.01 | General Authority | 15 |
Section 6.02 | General Duties | 16 |
Section 6.03 | Action Upon Instruction | 16 |
Section 6.04 | No Duties Except as Specified in this Agreement or in Instructions | 17 |
Section 6.05 | No Action Except Under Specified Documents or Instructions | 17 |
Section 6.06 | Restrictions | 17 |
Section 6.07 | Execution of Notes | 17 |
Section 6.08 | Doing Business in Other Jurisdictions | 18 |
ARTICLE VII Concerning the Owner Trustee | 18 | |
Section 7.01 | Acceptance of Trusts and Duties | 18 |
Section 7.02 | Furnishing of Documents | 20 |
Section 7.03 | Representations and Warranties of the Owner Trustee | 20 |
Section 7.04 | [Reserved] | 21 |
Section 7.05 | Reliance; Advice of Counsel | 21 |
Section 7.06 | Not Acting in Individual Capacity | 22 |
Section 7.07 | Owner Trustee Not Liable for Trust Certificates or Receivables | 22 |
Section 7.08 | Owner Trustee May Own Trust Certificates and Notes | 22 |
Section 7.09 | Legal Proceedings | 22 |
Section 7.10 | Communications Regarding Demands to Repurchase Receivables | 23 |
ARTICLE VIII Compensation of Owner Trustee | 24 | |
Section 8.01 | Owner Trustee’s Fees and Expenses | 24 |
Section 8.02 | Indemnification | 24 |
Section 8.03 | Payments to the Owner Trustee | 24 |
ARTICLE IX Termination of Trust Agreement | 25 | |
Section 9.01 | Termination of Trust Agreement | 25 |
ARTICLE X Successor Owner Trustees and Additional Owner Trustees | 26 | |
Section 10.01 | Eligibility Requirements for Owner Trustee | 26 |
Section 10.02 | Resignation or Removal of Owner Trustee | 26 |
Section 10.03 | Successor Owner Trustee | 27 |
Section 10.04 | Merger or Consolidation of the Owner Trustee | 27 |
Section 10.05 | Appointment of Co-Trustee or Separate Trustee | 28 |
ARTICLE XI Miscellaneous | 29 | |
Section 11.01 | Supplements and Amendments | 29 |
Section 11.02 | No Legal Title to Owner Trust Estate in Certificateholders | 30 |
Section 11.03 | Limitations on Rights of Others | 30 |
Section 11.04 | Notices | 31 |
Section 11.05 | Severability | 31 |
Section 11.06 | Separate Counterparts | 31 |
Section 11.07 | Successors and Assigns | 31 |
Section 11.08 | Covenants of the Depositor | 31 |
Section 11.09 | No Petition | 32 |
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Section 11.10 | No Recourse | 32 |
Section 11.11 | Headings | 32 |
Section 11.12 | GOVERNING LAW | 33 |
Section 11.13 | Compliance with Applicable Anti-Terrorism and Anti Money Laundering Regulations | 33 |
ARTICLE XII COMPLIANCE WITH REGULATION AB | 34 | |
Section 12.01 | Intent of the Parties; Reasonableness | 34 |
Section 12.02 | Information to Be Provided by the Owner Trustee | 34 |
EXHIBIT A | Form of Trust Certificate |
EXHIBIT B | Form of Certificate of Trust |
EXHIBIT C | Form of Transferor Certificate |
EXHIBIT D | Form of Investment Letter |
EXHIBIT E | Form of Receivables |
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TRUST AGREEMENT
This TRUST AGREEMENT is dated April 19, 2017, between WORLD OMNI AUTO RECEIVABLES LLC, a Delaware limited liability company, as depositor, and WELLS FARGO DELAWARE TRUST COMPANY, N.A., a national banking association, as owner trustee.
ARTICLE
I
Definitions
Section 1.01 Capitalized Terms. Certain capitalized terms used in this Agreement shall have the respective meanings assigned to them in Part I of Appendix A to the Sale and Servicing Agreement of even date herewith. All references herein to “the Agreement” or “this Agreement” are to this Trust Agreement as it may be amended and supplemented from time to time, the Exhibits hereto and the capitalized terms used herein which are defined in such Appendix A, and all references herein to Articles, Sections and subsections are to Articles, Sections and subsections of this Agreement unless otherwise specified. The rules of construction set forth in Part II of such Appendix A shall be applicable to this Agreement.
ARTICLE
II
Organization
Section 2.01 Name. The Trust shall be known as “World Omni Auto Receivables Trust 2017-A” in which name the Owner Trustee may conduct the business of the Trust, make and execute contracts and other instruments on behalf of the Trust and sue and be sued. The Trust shall obtain and maintain qualification to transact business in the State of Alabama. For the purpose of qualifying to transact business in the State of Alabama, the Trust may adopt the fictitious name of “World Omni Auto Receivables Trust 2017-A (Inc.)” and may conduct the business of the Trust in the State of Alabama under such fictitious name.
Section 2.02 Office. The office of the Trust shall be in care of the Owner Trustee at the Corporate Trust Office or at such other address as the Owner Trustee may designate by written notice to the Certificateholders and the Depositor.
Section 2.03 Purposes and Powers. (a) The purpose of the Trust is to engage in the following activities and the Trust shall have the power and authority:
(i) to issue and cause to be authenticated the Notes pursuant to the Indenture and the Trust Certificates pursuant to this Agreement and to transfer the Notes and the Trust Certificates to the Depositor;
(ii) with the proceeds of the sale of the Notes, to purchase the Receivables, to make deposits into and withdrawals from the Reserve Account and to pay the organizational, start-up and transactional expenses of the Trust;
(iii) to assign, grant, transfer, pledge, mortgage and convey the Owner Trust Estate pursuant to the Indenture (including the filing of financing statements in connection therewith) and to hold, manage and distribute to the Certificateholders pursuant to the terms of the Sale and Servicing Agreement any portion of the Owner Trust Estate released from the Lien of, and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Basic Documents to which it is to be a party;
(v) to engage in those activities, including entering into agreements, that are necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or connected therewith, including entering into interest rate swaps and caps and other derivative instruments;
(vi) to give the Issuing Entity Order to the Indenture Trustee to authenticate and deliver the Notes; and
(vii) subject to compliance with the Basic Documents, to engage in such other activities as may be required in connection with conservation of the Owner Trust Estate and the making of distributions to the Certificateholders and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust shall not engage in any activity other than in connection with the foregoing or other than as required or authorized by the terms of this Agreement or the Basic Documents.
Section 2.04 Appointment of Owner Trustee. The Depositor hereby appoints the Owner Trustee as trustee of the Trust effective as of the date hereof, to have all the rights, powers and duties set forth herein and under the Statutory Trust Act.
Section 2.05 Initial Capital Contribution of Owner Trust Estate. In accordance with Section 3802(a) of the Statutory Trust Act, the Depositor has not made, and is not required to make, a contribution to the Trust; provided that the Depositor may make a contribution to the Trust at its discretion. The Owner Trustee hereby declares that it will hold any such contribution, which shall constitute the initial Owner Trust Estate. Notwithstanding Section 8.01 hereof, the Depositor shall pay organizational expenses of the Trust as they may arise or shall, upon the request of the Owner Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the Owner Trustee
2
Section 2.06 Declaration of Trust. The Owner Trustee hereby declares that it will hold the Owner Trust Estate in trust upon and subject to the conditions set forth herein for the use and benefit of the Certificateholders, subject to the obligations of the Trust under the Basic Documents. It is the intention of the parties hereto that the Trust constitute a statutory trust under the Statutory Trust Act and that this Agreement constitute the governing instrument of such statutory trust. The Trust is not intended to be a business trust within the meaning of Section 101(9)(A)(v) of the Bankruptcy Code. It is also the intention of the parties hereto that, solely for Federal, state and local income and franchise tax purposes, on and after the Closing Date, (a) so long as the Trust has only one Certificateholder, the Trust shall be disregarded as a separate entity and (b) at such time as the Trust has more than one Certificateholder, the Trust will be treated as a partnership, with the assets of the partnership being the Receivables and other assets held by the Trust, the partners of the partnership being the Certificateholders, and the Notes being non-recourse debt of the partnership. The Depositor (and any future Certificateholder by the purchase of the Trust Certificate will be deemed to have agreed) and the Owner Trustee agree to take no action inconsistent with such tax treatment. The Trust shall not elect to be treated as an association under Treasury Regulations Section 301.7701-3(a). The parties agree that, unless otherwise required by appropriate tax authorities, the sole Certificateholder or the Trust, as applicable, will file or cause to be filed annual or other necessary returns, reports and other forms consistent with the foregoing characterization of the Trust for such tax purposes. Effective as of the date hereof, the Owner Trustee, shall have all rights, powers and duties set forth herein and, to the extent not inconsistent herewith, in the Statutory Trust Act with respect to accomplishing the purposes of the Trust. Any action taken on behalf of the Trust prior to the date hereof with respect to the filing of financing statements, the Certificate of Trust, a qualification to do business in the State of Alabama or any other similar qualification or license in any other state or jurisdiction, if applicable, is hereby ratified.
Section 2.07 Liability of the Depositor and the Certificateholders. (a) The Depositor shall be liable directly to and will indemnify any injured party for all losses, claims, damages, liabilities and expenses of the Trust (including Expenses, to the extent not paid out of the Owner Trust Estate) to the extent that the Depositor would be liable if the Trust was a partnership under the Delaware Revised Uniform Limited Partnership Act in which the Depositor was a general partner; provided, however, that the Depositor shall not be liable for any losses incurred by a Certificateholder in the capacity of an investor in the Trust Certificates, or by a Noteholder in the capacity of an investor in the Notes. In addition, any third party creditors of the Trust (other than in connection with the obligations described in the preceding sentence for which the Depositor shall not be liable) shall be deemed third party beneficiaries of this Section 2.07.
(b) No Certificateholder, other than to the extent set forth in paragraph (a), shall have any personal liability for any liability or obligation of the Trust.
Section 2.08 Title to Trust Property. Legal title to all the Owner Trust Estate shall be vested at all times in the Trust as a separate legal entity except where applicable law in any jurisdiction requires title to any part of the Owner Trust Estate to be vested in a trustee or trustees, in which case title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a separate trustee, as the case may be.
Section 2.09 Situs of Trust. The Trust will be located and administered in the State of Delaware. All bank accounts maintained by the Owner Trustee on behalf of the Trust shall be located in the States of Delaware or Minnesota. The Trust shall not have any employees in any state other than Delaware; provided, however, that nothing herein shall restrict or prohibit the Owner Trustee from having employees within or outside of the State of Delaware. Payments will be received by the Trust only in Delaware or Minnesota, and payments will be made by the Trust only from Delaware or Minnesota. The only office of the Trust shall be the principal corporate trust office of the Owner Trustee located at its Corporate Trust Office.
3
Section 2.10 Representations and Warranties of the Depositor. The Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor is duly organized and validly existing as a limited liability company in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted.
(b) The Depositor is duly qualified to do business as a foreign limited liability company in good standing, and has obtained all necessary material licenses and approvals, in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications, except where the failure to be so qualified or to have obtained such licenses or approvals would not have a material adverse effect on the Depositor’s earnings, business affairs or business prospects.
(c) The Depositor has the power and authority to execute and deliver this Agreement and to carry out its terms; the Depositor has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Trust and the Depositor has duly authorized such sale and assignment and deposit to the Trust by all necessary action; and the execution, delivery and performance of this Agreement have been duly authorized by the Depositor by all necessary action.
(d) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof do not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the limited liability company agreement or bylaws of the Depositor; (ii) breach, conflict with or violate any of the material terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, agreement or other instrument to which the Depositor is a party or by which it is bound; (iii) result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the Basic Documents); or (iv) violate any law or, to the best of the Depositor’s knowledge, any order, rule or regulation applicable to the Depositor of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Depositor or its properties, except, in the case of clauses (ii), (iii) and (iv), for such breaches, defaults, conflicts, liens or violations that would not have a material adverse effect on the Depositor’s earnings, business affairs or business prospects.
(e) To the Depositor’s best knowledge, there are no proceedings or investigations pending or threatened before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Depositor or its properties: (i) asserting the invalidity of this Agreement or any of the other Basic Documents, (ii) seeking to prevent the issuance of the Trust Certificates or the consummation of any of the transactions contemplated by this Agreement or any of the other Basic Documents, (iii) seeking any determination or ruling that could reasonably be expected to materially and adversely affect the performance by the Depositor of its obligations under, or the validity or enforceability of, this Agreement or any of the other Basic Documents or (iv) involving the Depositor and which might materially and adversely affect the federal income tax or other federal, state or local tax attributes of the Trust Certificates.
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Section 2.11 Financing Statements. The Trust hereby authorizes the filing of financing statements in connection with the grant of a security interest to the Indenture Trustee pursuant to the granting clause of the Indenture. In addition, the Trust hereby ratifies any such financing statements filed prior to the date hereof.
Section 2.12 Amended and Restated Trust Agreement. This Trust Agreement is the amended and restated trust agreement contemplated by the Trust Agreement dated as of March 13, 2017, between the Depositor and the Owner Trustee (the “Initial Trust Agreement”). This Trust Agreement amends and restates in its entirety the Initial Trust Agreement.
ARTICLE
III
Trust Certificates and Transfer of Interests
Section 3.01 [Reserved].
Section 3.02 The Trust Certificates. The Trust Certificates shall represent in the aggregate a 100% Percentage Interest in the Trust. On the date hereof, the Depositor or its designee shall be the sole Certificateholder of each of the Trust Certificates and each of the Trust Certificates shall be registered, upon initial issuance, in the name of the Depositor or its designee. The Trust Certificates shall be executed on behalf of the Trust by manual or facsimile signature of an Authorized Officer of the Owner Trustee. Trust Certificates bearing the manual or facsimile signatures of individuals who were, at the time when such signatures shall have been affixed, authorized to sign on behalf of the Owner Trustee, shall be validly issued and entitled to the benefit of this Agreement, notwithstanding that such individuals or any of them shall have ceased to be so authorized prior to the authentication and delivery of such Trust Certificates or did not hold such offices at the date of authentication and delivery of such Trust Certificates.
A transferee of a Trust Certificate shall become a Certificateholder and shall be entitled to the rights and subject to the obligations of a Certificateholder hereunder upon such transferee’s acceptance of a Trust Certificate duly registered in such transferee’s name pursuant to Section 3.04.
Section 3.03 Authentication of Trust Certificates. On the Closing Date, the Owner Trustee shall cause the Trust Certificates to be executed on behalf of the Trust, authenticated and delivered to or upon the written order of the Depositor signed by the Depositor’s president, any vice president, secretary, treasurer or any assistant treasurer, without further company action by the Depositor. No Trust Certificate shall entitle a Certificateholder to any benefit under this Agreement or be valid for any purpose unless there shall appear on such Trust Certificate a certificate of authentication substantially in the form set forth in Exhibit A, executed by the Owner Trustee or the Certificate Registrar, as its authenticating agent, by manual signature; such authentication shall constitute conclusive evidence that such Trust Certificate shall have been duly authenticated and delivered hereunder. All Trust Certificates shall be dated the date of their authentication.
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Section 3.04 Registration of Transfer and Exchange of Trust Certificates. The certificate registrar (the “Certificate Registrar”) shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a certificate register (the “Certificate Register”) in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of Trust Certificates and of transfers and exchanges of Trust Certificates as herein provided. U.S. Bank National Association shall be the initial Certificate Registrar.
The Trust Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No transfer of a Trust Certificate shall be made unless such transfer is made pursuant to an effective registration statement under the Securities Act and any applicable state securities laws or is exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer is to be made in reliance upon an exemption from the Securities Act and state securities laws, in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder’s prospective transferee shall each certify to the Owner Trustee and the Depositor in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit C (the “Transferor Certificate”) and Exhibit D (the “Investment Letter”). Except in the case of a transfer as to which the proposed transferee has provided an Investment Letter with respect to a Rule 144A transaction, there shall also be delivered to the Certificate Registrar, the Owner Trustee and the Depositor an opinion of counsel that such transfer may be made pursuant to an exemption from the Securities Act and state securities laws, which opinion of counsel shall not be an expense of the Trust, the Certificate Registrar, the Owner Trustee or the Indenture Trustee (unless it is the transferee from whom such opinion is to be obtained) or of the Depositor or World Omni; provided that such opinion of counsel in respect of the applicable state securities laws may be a memorandum of law rather than an opinion if such counsel is not licensed in the applicable jurisdiction. The Depositor shall provide to any Certificateholder and any prospective transferee designated by any such Certificateholder information regarding the Certificates and the Receivables and such other information as shall be necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate without registration thereof under the Securities Act pursuant to the registration exemption provided by Rule 144A. Each Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Issuing Entity, the Certificate Registrar, the Owner Trustee, the Indenture Trustee, the Depositor and World Omni (in any capacity) against any liability that may result if the transfer is not so exempt or is not made in accordance with federal and state securities laws.
No transfer of a Trust Certificate shall be made to any Person unless the Certificate Registrar has received (A) a certificate in the form of paragraph 3 to the Investment Letter attached hereto as Exhibit D from such Person to the effect that such Person is not and is not acting on behalf of (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan subject to Section 4975 of the Code, (iii) any entity whose underlying assets include plan assets by reason of a plan’s investment in the entity or (iv) any plan that is subject to any federal, state or local law that is, to a material extent, similar to the foregoing provisions of ERISA or Section 4975 of the Code (“Similar Law”) (each, a “Plan”) or (B) an opinion of counsel satisfactory to the Owner Trustee, the Certificate Registrar and the Depositor to the effect that the purchase and holding of such Trust Certificate by such Person (i) will not result in the assets of the Issuing Entity being deemed to be “plan assets” subject to the prohibited transactions provisions of ERISA, Section 4975 of the Code or Similar Law and will not subject the Owner Trustee, the Indenture Trustee, the Certificate Registrar, the Servicer or the Depositor to any obligation in addition to those undertaken in the Basic Documents and (ii) will not constitute or result in a prohibited transaction under ERISA, Section 4975 of the Code or Similar Law. The preparation and delivery of the certificate and opinions referred to above with respect to a proposed transfer shall not be an expense of the Issuing Entity, the Owner Trustee, the Certificate Registrar, the Indenture Trustee, World Omni (in any capacity) or the Depositor. Any attempted or purported transfer in violation of these transfer restrictions will be null and void and will vest no rights in any purported transferee.
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No transfer of a Trust Certificate shall be made to any Person unless the Depositor, the Owner Trustee and the Certificate Registrar has received (A) a certificate in the form of paragraph 4 to the Investment Letter attached hereto as Exhibit D from such Person to the effect that such Person is a United States Person within the meaning of Section 7701(a)(30) of the Code and (B) the Depositor, the Certificate Registrar, the Owner Trustee and the Indenture Trustee shall have received an opinion of counsel (which counsel is independent from the Depositor and the Trust) that such action shall not cause the Trust to be treated as an association (or publicly traded partnership) taxable as a corporation for federal income tax purposes and such transferee or assignee shall agree to take positions for tax purposes consistent with the tax positions set forth in Section 2.06 of this Agreement as agreed to be taken by the Certificateholder.
The Certificate Registrar shall cause each Certificate to contain a legend stating that transfer of the Certificates is subject to certain restrictions and referring prospective purchasers of the Certificates to the terms of this Agreement with respect to such restrictions.
Upon surrender for registration of transfer of any Trust Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, and the Owner Trustee or the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Trust Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. At the option of a Certificateholder, Trust Certificates may be exchanged for other Trust Certificates of authorized denominations of a like aggregate amount upon surrender of the Trust Certificates to be exchanged at the office or agency maintained pursuant to Section 3.08. No Certificate (other than the Certificates issued to and held by the Depositor or its Affiliates) may be subdivided upon transfer or exchange in a manner such that any resulting Certificate(s) or beneficial ownership of a Certificate held through a party considered a nominee for U.S. federal income tax purposes represent(s) less than a 2.00% fractional undivided interest in the Trust (or such other amount as the Depositor may determine in order to prevent the Trust from being treated as a “publicly traded partnership” under Section 7704 of the Code, but in no event less than a 1.00% fractional undivided interest in the Trust).
Every Trust Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by the Certificateholder or such Certificateholder’s attorney duly authorized in writing. Each Trust Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Owner Trustee in accordance with its customary practice.
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No service charge shall be made for any registration of transfer or exchange of Trust Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Trust Certificates.
The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make, and the Certificate Registrar shall not register transfers or exchanges of, Trust Certificates for a period of 15 days preceding the due date for any payment with respect to the Trust Certificates.
No transfer of a Trust Certificate or any interest therein shall be made unless the Certificateholder shall have first surrendered such Trust Certificate to the Certificate Registrar for registration of transfer, or if such Trust Certificate shall have been mutilated, destroyed, lost or stolen, the Certificateholder must first comply with Section 3.05 hereof.
During the period described in 17 CFR Part 246.12(f)(1), no Certificateholder may sell, transfer, finance, assign, participate, pledge or otherwise dispose of any Certificate until the expiration of such period; provided, that, during such period, such Certificateholder may sell, transfer, finance, assign, participate, pledge or otherwise dispose of any Certificate to World Omni or any “majority-owned affiliate” (as such term is defined in 17 CFR Part 246.2) of World Omni in accordance with the restrictions contained in 17 CFR Part 246.12. Any purported transfer of a Certificate not in accordance with this paragraph of Section 3.04 shall be null and void and shall not be given effect for any purpose whatsoever. In no event shall the Owner Trustee or the Certificate Registrar have any responsibility to monitor compliance with or be charged with knowledge of the Credit Risk Retention Rules, nor shall either of them be liable to any investor, Noteholder, party or any other Person whatsoever for violation of such rules or requirements or such similar provisions now or hereafter in effect.
Section 3.05 Mutilated, Destroyed, Lost or Stolen Trust Certificates. If (a) any mutilated Trust Certificate shall be surrendered to the Certificate Registrar, or if the Certificate Registrar shall receive evidence to its satisfaction of the destruction, loss or theft of any Trust Certificate and (b) there shall be delivered to the Certificate Registrar and the Owner Trustee such security or indemnity as may be required by them to save each of them harmless, then in the absence of notice that such Trust Certificate has been acquired by a protected purchaser, the Owner Trustee on behalf of the Trust shall execute and the Owner Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust Certificate, a new Trust Certificate of like tenor and denomination. In connection with the issuance of any new Trust Certificate under this Section, the Owner Trustee or the Certificate Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any duplicate Trust Certificate issued pursuant to this Section shall constitute conclusive evidence of ownership in the Trust, as if originally issued, whether or not the lost, stolen or destroyed Trust Certificate shall be found at any time.
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Section 3.06 Persons Deemed Owners. Prior to due presentation of a Trust Certificate for registration of transfer, the Owner Trustee, the Certificate Registrar or any Paying Agent may treat the Person in whose name any Trust Certificate is registered in the Certificate Register as the owner of such Trust Certificate for the purpose of receiving distributions pursuant to Section 5.02 and for all other purposes whatsoever, and none of the Owner Trustee, the Certificate Registrar or any Paying Agent shall be bound by any notice to the contrary.
Section 3.07 Access to List of Certificateholders’ Names and Addresses. The Certificate Registrar shall furnish or cause to be furnished to the Owner Trustee, the Servicer and the Depositor, within 15 days after receipt by the Certificate Registrar of a written request therefor from the Owner Trustee, the Servicer or the Depositor, a list, in such form as the Owner Trustee, the Servicer or the Depositor may reasonably require, of the names and addresses of the Certificateholders as of the most recent Record Date. If three or more Certificateholders or one or more Certificateholders of Trust Certificates evidencing not less than a 25% Percentage Interest of the Certificates apply in writing to the Certificate Registrar, and such application states that the applicants desire to communicate with other Certificateholders with respect to their rights under this Agreement or under the Trust Certificates and such application is accompanied by a copy of the communication that such applicants propose to transmit, then the Certificate Registrar shall, within five Business Days after the receipt of such application, afford such applicants access during normal business hours to the current list of Certificateholders. Each Certificateholder, by receiving and holding a Trust Certificate, shall be deemed to have agreed not to hold any of the Depositor, the Certificate Registrar or the Owner Trustee accountable by reason of the disclosure of its name and address, regardless of the source from which such information was derived.
Section 3.08 Maintenance of Office or Agency. The Owner Trustee shall maintain an office or offices or agency or agencies where notices and demands to or upon the Owner Trustee in respect of the Basic Documents may be served, and the Certificate Registrar shall maintain an office or offices or agency or agencies where Trust Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Certificate Registrar in respect of the Trust Certificates and Basic Documents may be served. The Owner Trustee initially designates its Corporate Trust Office as its office for such purposes and the Indenture Trustee, as Certificate Registrar, initially designates its Corporate Trust Office as its office for such purposes. Each of the Owner Trustee and the Certificate Registrar shall give prompt written notice to the Depositor and to the Certificateholders of any change in the location of any such office or agency.
Section 3.09 Appointment of Paying Agent. The Paying Agent shall make distributions to Certificateholders pursuant to Section 5.02. Any Paying Agent shall have the revocable power to withdraw funds from the Collection Account for the purpose of making the distributions referred to above. The Owner Trustee may revoke such power and remove the Paying Agent if the Owner Trustee determines in its sole discretion that the Paying Agent shall have failed to perform its obligations under this Agreement in any material respect. The Indenture Trustee will be the initial Paying Agent. In the event that the Indenture Trustee shall no longer be the Paying Agent, the Depositor shall appoint a successor to act as Paying Agent (which shall be a bank or trust company). The Depositor shall cause such successor Paying Agent or any additional Paying Agent appointed by the Depositor to execute and deliver to the Owner Trustee an instrument in which such successor Paying Agent or additional Paying Agent shall agree with the Owner Trustee that, as Paying Agent, such successor Paying Agent or additional Paying Agent will hold all sums, if any, held by it for payment to the Certificateholders in trust for the benefit of the Certificateholders entitled thereto until such sums shall be paid to such Certificateholders. The Paying Agent shall return all unclaimed funds to the Owner Trustee and upon removal of a Paying Agent such Paying Agent shall also return all funds in its possession to the Owner Trustee. Any reference in this Agreement to the Paying Agent shall include any co-paying agent unless the context requires otherwise.
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Section 3.10 Representations of Certificateholders. Each Certificateholder, by its acceptance of a Trust Certificate issued hereunder, represents that it has, independently and without reliance on the Owner Trustee or any other person, and based on such documents and information as it has deemed appropriate, made its own investment decision in respect of the Trust Certificate. Each Certificateholder also represents that it will, independently and without reliance on the Owner Trustee or any other person, and based on such documents and information as it shall deem appropriate at the time, continue to make its own decisions in taking or not taking action under this Trust Agreement and in connection with its Trust Certificate. Except for notices, reports and other documents expressly required to be furnished to the Certificateholders by the Owner Trustee hereunder, the Owner Trustee shall not have any duty or responsibility to provide any Certificateholder with any other information concerning the transactions contemplated hereby, the Trust, the Depositor or any other parties hereto or to any related documents which may come into the possession of the Owner Trustee or any of its officers, directors, employees, agents, representatives or attorneys-in-fact.
Section 3.11 Code Section 385 Restrictions. Unless the Trust has received an Opinion of Counsel that the restriction on the proposed acquisition of the Certificate (or interest therein) described by this paragraph is no longer necessary to conclude that any such acquisition (and subsequent resale of the applicable Notes described below) will not cause the Treasury Regulations under Section 385 of the Code to apply to the applicable Notes described below in a manner that could cause an adverse effect on the Trust (including for the applicable Notes to be treated as equity for federal income tax purposes) or the Trust to be treated as an association or a publicly traded partnership taxable as a corporation, (A) a Section 385 Certificateholder cannot acquire a Certificate (or interest therein) if (i) a member of any “expanded group” (as defined in Treasury Regulation Section 1.385-1(c)(4)) that includes the Section 385 Certificateholder owns any Notes (other than Retained Notes) or (ii) a Section 385 Controlled Partnership of such expanded group owns any Notes (other than Retained Notes) and (B) a Section 385 Certificateholder cannot hold the Certificate (or interest therein) if (i) a member of any “expanded group” (as defined in Treasury Regulation Section 1.385-1(c)(4)) that includes the Section 385 Certificateholder acquires any Notes (other than Retained Notes) from the Trust, any Affiliate, or through the marketplace or (ii) a Section 385 Controlled Partnership of such expanded group acquires any Notes (other than Retained Notes) from the Trust, any Affiliate, or through the marketplace. The preceding sentence shall not apply if the holder or potential holder of the applicable Notes is (y) a U.S. corporate member of the same U.S. corporate affiliated group (as defined in Section 1504 of the Code) filing a consolidated federal income tax return that includes each of any applicable related Section 385 Certificateholders (including in the case of a partnership, the relevant “expanded group partner” (as defined in Treasury Regulation Section 1.385-3(g)(12)) or (z) a partnership all the partners of which are either such U.S. corporate members as described in clause (y) or partnerships all of the partners of which are such U.S. corporate members as described in clause (y). If a Certificateholder fails to comply with the requirements of this paragraph, the Administrator is authorized, in the Administrator’s discretion, to compel such Certificateholder to sell its Certificate (or interest therein) to a Person whose acquisition or holding thereof does not result in a failure to comply with this paragraph. In no event shall the Owner Trustee or Certificate Registrar be held liable for any default or nonperformance by the Administrator, and neither the Owner Trustee nor the Certificate Registrar shall have any responsibility to monitor compliance with or be charged with knowledge of the foregoing restrictions, nor shall either of them be liable to any investor, Noteholder, party or any other Person whatsoever for violation of such restrictions.
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For the purposes of this section, “Section 385 Certificateholder” means a holder of a Certificate (or interest therein), including such person who would become a Section 385 Certificateholder upon the transfer of a Certificate (or interest therein) to such person, that is (1) an entity (foreign or domestic) that is treated as a corporation for United States federal income tax purposes, (2) an entity (foreign or domestic) that (i) is treated as a partnership for United States federal income tax purposes and 80 percent or more of its ownership interests are controlled, directly or indirectly, by an “expanded group,” within the meaning of Treasury Regulation Section 1.385-1(c)(4) and (ii) has an expanded group partner (as defined in Treasury Regulation Section 1.385-3(g)(12)) that is an entity (foreign or domestic) that is treated as a corporation for United States federal income tax purposes or (3) a disregarded entity or grantor trust of an entity described in clause (1) or (2). For purposes of this section, “Section 385 Controlled Partnership” has the meaning set forth in Treasury Regulation Section 1.385-1(c)(1) for a “controlled partnership.”
ARTICLE
IV
Actions by Owner Trustee
Section 4.01 Prior Notice to Certificateholders with Respect to Certain Matters. With respect to the following matters, the Owner Trustee shall not take action unless, at least 30 days before the taking of such action, the Owner Trustee shall have notified the Certificateholders in writing of the proposed action and the Certificateholders shall not have notified the Owner Trustee in writing prior to the 30th day after such notice is given that such Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims or lawsuits brought in connection with the collection of the Receivables) and the compromise of any action, claim or lawsuit brought by or against the Trust (except with respect to the aforementioned claims or lawsuits for collection of the Receivables);
(b) the election by the Trust to file an amendment to the Certificate of Trust, a conformed copy of which is attached hereto as Exhibit B (unless such amendment is required to be filed under the Statutory Trust Act);
(c) the amendment of the Indenture by a supplemental indenture in circumstances where the consent of any Noteholder is required;
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(d) the amendment of the Indenture by a supplemental indenture in circumstances where the consent of any Noteholder is not required and such amendment would materially adversely affect the interests of the Certificateholders; or
(e) the amendment, change or modification of the Administration Agreement, except to cure any ambiguity or to amend or supplement any provision in a manner or add any provision that would not materially adversely affect the interests of the Certificateholders.
Section 4.02 Action by Certificateholders with Respect to Certain Matters. The Owner Trustee shall not have the power, except upon the written direction of the Certificateholders, to (a) remove the Administrator under the Administration Agreement pursuant to Section 8 thereof, (b) appoint a successor Administrator under the Administration Agreement pursuant to Section 8 thereof, (c) remove the Servicer under the Sale and Servicing Agreement pursuant to Section 8.01 thereof, (d) except as expressly provided in the Basic Documents, sell the Receivables after the termination of the Indenture or (e) appoint, pursuant to the Indenture, a successor Note Registrar, Paying Agent or Indenture Trustee or, pursuant to this Agreement, a successor Certificate Registrar, or consent to the assignment by the Note Registrar, Paying Agent or Indenture Trustee or Certificate Registrar of its obligations under the Indenture or this Agreement, as applicable. The Owner Trustee shall take the actions referred to in the preceding sentence only upon written instructions signed by the Certificateholders.
Section 4.03 Action by Certificateholders with Respect to Bankruptcy. To the fullest extent permitted by applicable law, the Owner Trustee shall not have any power to, and shall not, (i) institute proceedings to have the Trust declared or adjudicated bankrupt or insolvent, (ii) consent to the institution of bankruptcy or insolvency proceedings against the Trust, (iii) file a petition or consent to a petition seeking reorganization or relief on behalf of the Trust under any applicable federal or state law relating to bankruptcy, (iv) consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or any similar official) of the Trust or a substantial portion of the assets of the Trust, (v) make any assignment for the benefit of the Trust’s creditors, (vi) cause the Trust to admit in writing its inability to pay its debts generally as they become due, or (vii) take any action, or cause the Trust to take any action, in furtherance of any of the foregoing (any of the above, a “Bankruptcy Action”). So long as the Indenture remains in effect, no Certificateholder shall have the power to take, and shall not take, any Bankruptcy Action with respect to the Trust or direct the Owner Trustee to take any Bankruptcy Action with respect to the Trust.
Section 4.04 Restrictions on Certificateholders’ Power. The Certificateholders shall not direct the Owner Trustee to take or to refrain from taking any action if such action or inaction would be contrary to any obligation of the Trust or the Owner Trustee under this Agreement or any of the Basic Documents or would be contrary to Section 2.03 or contrary to applicable law, nor shall the Owner Trustee be obligated to follow any such direction, if given.
Section 4.05 Majority Control. Except as expressly provided herein, any action that may be taken by the Certificateholders under this Agreement may be taken by the Certificateholders of Trust Certificates evidencing in the aggregate at least a majority Percentage Interest. Except as expressly provided herein, any written notice of the Certificateholders delivered pursuant to this Agreement shall be effective if signed by Certificateholders of Trust Certificates evidencing in the aggregate at least a majority Percentage Interest at the time of the delivery of such notice.
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ARTICLE
V
Application of Trust Funds; Certain Duties
Section 5.01 [Reserved].
Section 5.02 Application of Trust Funds.
(a) On each Payment Date, subject to this Section 5.02(a), the Paying Agent shall distribute to Certificateholders, on a pro rata basis, amounts pursuant to Section 5.06(ii)(I) or (iii)(G), or Section 5.07(d) of the Sale and Servicing Agreement with respect to such Payment Date.
The Certificateholders of 100% Percentage Interest of the Certificates will have the right, but not the obligation, in their sole discretion, to instruct the Indenture Trustee in writing on or prior to the close of business on the related Payment Determination Date to retain in the Collection Account all or a portion of distributions otherwise payable to them pursuant to Section 5.06(ii)( I) or (iii)(G), or Section 5.07(d) of the Sale and Servicing Agreement. If the Certificateholders make this election, these amounts will be treated as collections during the then-current Collection Period and the Certificateholders will have no claim to such amounts (unless distributed on a subsequent Payment Date pursuant to Section 5.06(ii)(I) of the Sale and Servicing Agreement).
(b) On each Payment Date, the Paying Agent shall post a copy of the statement or statements provided to the Indenture Trustee by the Servicer pursuant to Section 5.08 of the Sale and Servicing Agreement with respect to such Payment Date on its internet website promptly following its receipt thereof, for the benefit of the Certificateholder. The Paying Agent’s internet website shall initially be located at https://usbank.com/abs. Assistance in using the website can be obtained by calling the Paying Agent’s customer service desk at (800) 934-6802. The Paying Agent may change the way the statements and information are posted or distributed in order to make such distribution more convenient and/or accessible for such Certificateholders, and the Paying Agent shall provide on the website timely and adequate notification to all parties regarding any such change.
Section 5.03 Method of Payment. Subject to Section 9.01(c), distributions required to be made to Certificateholders on any Payment Date shall be made to each Certificateholder of record on the preceding Record Date either (x) by wire transfer, in immediately available funds, to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor, if such Certificateholder shall have provided to the Certificate Registrar appropriate written instructions no later than the Record Date prior to such Payment Date, or (y) if such Certificateholder does not qualify under clause (x), by check mailed to such Certificateholder at the address of such holder appearing in the Certificate Register. If there is a possibility that withholding tax is payable with respect to a distribution (such as a distribution to a non-U.S. Certificateholder), the Owner Trustee (or the Paying Agent on its behalf) may in its sole discretion withhold such amounts in accordance with this Section 5.03. If a Certificateholder wishes to apply for a refund of any such withholding tax, the Owner Trustee shall reasonably cooperate with such Certificateholder in making such claim so long as such Certificateholder agrees to reimburse the Owner Trustee for any out-of-pocket expenses incurred.
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Section 5.04 No Segregation of Monies; No Interest. Subject to Section 5.02, monies received by the Owner Trustee hereunder need not be segregated in any manner except to the extent required by law or the Sale and Servicing Agreement and may be deposited under such general conditions as may be prescribed by law, and the Owner Trustee shall not be liable for any interest thereon. The Owner Trustee may establish accounts and receive, maintain and disburse funds in accordance with the terms hereof and the Basic Documents.
Section 5.05 Accounting and Reports to the Certificateholders, the Internal Revenue Service and Others. The Administrator shall deliver to each Certificateholder, as may be required by the Code and applicable Treasury Regulations, or as may be requested by such Certificateholder, such information, reports or statements as may be necessary to enable each Certificateholder to prepare its federal and state income tax returns. Consistent with the Trust’s characterization for tax purposes as a disregarded entity so long as the Depositor or any other Person is the sole Certificateholder, no federal income tax return shall be filed on behalf of the Trust unless either (i) the Owner Trustee shall be provided with an Opinion of Counsel that, based on a change in applicable law occurring after the date hereof, or as a result of a transfer permitted by Section 3.04, the Code requires such a filing or (ii) the Internal Revenue Service shall determine that the Trust is required to file such a return. In the event that there shall be two or more beneficial owners of the Trust, the Administrator shall inform the Indenture Trustee in writing of such event, (x) the Administrator shall prepare or shall cause to be prepared federal and, if applicable, state or local partnership tax returns, with all such necessary information provided to it, required to be filed by the Trust and shall remit such returns to the Depositor (or if the Depositor no longer owns any Certificates, the Certificateholder designated for such purpose by the Depositor to the Owner Trustee in writing) at least (5) days before such returns are due to be filed, and (y) capital accounts shall be maintained by the Administrator for each Certificateholder in accordance with the Treasury Regulations under Section 704(b) of the Code reflecting each such Certificateholder’s share of the income, gains, deductions, and losses of the Trust and/or guaranteed payments made by the Trust and contributions to, and distributions from, the Trust. The Administrator shall prepare any such return with all elections the Administrator deems appropriate, except that no election shall be made to treat the Trust as an association taxable as a corporation. The Depositor (or such designee Certificateholder, as applicable) shall promptly sign such returns and deliver such returns after signature to the Administrator and such returns shall be filed by the Administrator with the appropriate tax authorities. In the event that a “tax matters partner” (within the meaning of Code Section 6231(a)(7)) is required to be appointed with respect to the Trust, the Depositor or its designee is hereby designated as tax matters partner or, if the Depositor is not a Certificateholder, the Certificateholder selected by a majority of the Certificateholders (by Percentage Interest) shall be designated as tax matters partner. If the Trust is classified as a partnership for federal income tax purposes (i) for any taxable period beginning before December 31, 2017, the “tax matters partner” shall represent the Trust in connection with all examinations of the Trust’s affairs by tax authorities, including resulting judicial and administrative proceedings, and (ii) for any taxable period beginning after December 31, 2017, the “tax matters partner” shall be designated as the “partnership representative” within the meaning of Section 6223 of the Code (as amended by P.L. 114-74, the Bipartisan Budget Act of 2015) and the Trust will, to the extent practicable, make the election described in Section 6226 of the Code (as amended by P.L. 114-74, the Bipartisan Budget Act of 2015). Finally, if the Trust is treated as a partnership for federal income tax purposes, the Trust will not elect to apply Sections 6221-6241 of the Code (as amended by P.L. 114-74, the Bipartisan Budget Act of 2015) to any taxable period of the Trust beginning before December 31, 2017. If the Trust is obligated to pay any amount to a governmental agency or body or to any other Person (or otherwise makes a payment) because of a Certificateholder’s status or otherwise specifically attributable to a Certificateholder (including any taxes arising under P.L. 114-74, the Bipartisan Budget Act of 2015, and changes to the Code relating thereto), then such Certificateholder shall, at the Trust’s sole election, either (i) pay the entire amount (including any interest, penalties and expenses associated with such payment) the Trust is obligated to pay because of such Certificateholder’s status or attributable to such Certificateholder to the Trust at least five days prior to the due date for such payment by the Trust, or (ii) promptly reimburse the Trust in full for the entire amount any and all such amounts paid by or on behalf of the Trust (including any interest, penalties and expenses associated with such payment). In no event shall the Certificateholder or the Depositor (or such designee Certificateholder, as applicable) be liable for any liabilities, costs or expenses of the Trust or the Noteholders arising out of the application of any tax law, including federal, state, foreign or local income or excise taxes or any other tax imposed on or measured by income (or any interest, penalty or addition with respect thereto or arising from a failure to comply therewith) except for any such liability, cost or expense attributable to any negligent act or omission by the Owner Trustee or the Depositor (or such designee Certificateholder, as applicable), as the case may be, in breach of its obligations under this Agreement.
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Section 5.06 Signature on Returns.
The Depositor (or, if the Depositor no longer owns any of the Certificates, the Certificateholder designated for such purpose pursuant to Section 5.05) or the Administrator shall sign the tax returns of the Trust on behalf of the Trust, unless applicable law requires the Owner Trustee to sign such documents, in which case such documents shall be signed by the Owner Trustee, as required by applicable law.
ARTICLE
VI
Authority and Duties of Owner Trustee
Section 6.01 General Authority. The Owner Trustee is authorized and directed to execute and deliver the Basic Documents to which the Trust is to be a party, the Notes and each certificate or other document attached as an exhibit to or contemplated by the Basic Documents to which the Trust is to be a party and, in each case, in such form as the Depositor shall approve, as evidenced conclusively by the presentation of such documents for execution to the Owner Trustee by the Depositor or its counsel. In addition to the foregoing, the Owner Trustee is authorized, but shall not be obligated, to take all actions required of the Trust pursuant to the Basic Documents. The Owner Trustee is further authorized from time to time, but shall not be obligated, to take such action as the Administrator directs in writing with respect to the Basic Documents.
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Section 6.02 General Duties. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all of its responsibilities pursuant to the terms of this Agreement and to administer the Trust in the interest of the Certificateholders, subject to the Basic Documents and in accordance with the provisions of this Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee or the Trust hereunder or under any Basic Document, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement.
Section 6.03 Action Upon Instruction.
(a) Subject to Article IV and in accordance with the terms of the Basic Documents, the Certificateholders may by written instruction direct the Owner Trustee in the management of the Trust. Such direction may be exercised at any time by written instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any action hereunder or under any Basic Document if the Owner Trustee shall have reasonably determined, or shall have been advised by counsel, that such action is likely to result in liability on the part of the Owner Trustee or is contrary to the terms hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Agreement or under any Basic Document, the Owner Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the Certificateholders requesting instruction as to the course of action to be adopted, and to the extent the Owner Trustee acts in good faith in accordance with any written instruction of the Certificateholders received, the Owner Trustee shall not be liable on account of such action to any Person. If the Owner Trustee shall not have received appropriate instruction within 10 days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action not inconsistent with this Agreement or the Basic Documents, as it shall deem necessary, and shall have no liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the application of any provision of this Agreement or any Basic Document or any such provision is ambiguous as to its application, or is, or appears to be, in conflict with any other applicable provision, or in the event that this Agreement permits any determination by the Owner Trustee or is silent or is incomplete as to the course of action that the Owner Trustee is required to take with respect to a particular set of facts, the Owner Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Certificateholders requesting instruction and, to the extent that the Owner Trustee acts or refrains from acting in good faith in accordance with any such instruction received, the Owner Trustee shall not be liable, on account of such action or inaction, to any Person. If the Owner Trustee shall not have received appropriate instruction within 10 days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action not inconsistent with this Agreement or the Basic Documents, as it shall deem necessary, and shall have no liability to any Person for such action or inaction.
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Section 6.04 No Duties Except as Specified in this Agreement or in Instructions. The Owner Trustee shall not have any duty or obligation to manage, make any payment with respect to, register, record, sell, dispose of, or otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from taking any action under, or in connection with, any document contemplated hereby to which the Owner Trustee is a party, except as expressly provided by the terms of this Agreement or in any document or written instruction received by the Owner Trustee pursuant to Section 6.03; and no implied duties or obligations shall be read into this Agreement or any Basic Document against the Owner Trustee. The Owner Trustee shall have no responsibility for filing any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted to it hereunder or to prepare or file any filing, including any Securities and Exchange Commission filing for the Trust or to record this Agreement or any Basic Document. The Owner Trustee nevertheless agrees that it will promptly take all action as may be necessary to discharge any liens on any part of the Owner Trust Estate that result from actions by, or claims against, the Owner Trustee that are not related to the ownership or the administration of the Owner Trust Estate.
Section 6.05 No Action Except Under Specified Documents or Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise deal with any part of the Owner Trust Estate except (i) in accordance with the powers granted to and the authority conferred upon the Owner Trustee pursuant to this Agreement, (ii) in accordance with the Basic Documents or (iii) in accordance with any document or instruction delivered to the Owner Trustee pursuant to Section 6.03.
Section 6.06 Restrictions. The Owner Trustee shall not take any action (a) that is inconsistent with the purposes of the Trust set forth in Section 2.03 or (b) that, to the actual knowledge of a Trust Officer of the Owner Trustee, would result in the Trust’s becoming taxable as a corporation for federal income tax purposes or (c) is not in accordance with applicable law. Neither the Administrator nor Certificateholders shall direct the Owner Trustee to take action that would violate the provisions of this Section 6.06.
Section 6.07 Execution of Notes. The Owner Trustee is hereby authorized and directed on behalf of the Trust to execute the Notes pursuant to the Indenture.
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Section 6.08 Doing Business in Other Jurisdictions. Notwithstanding anything contained herein or in any other Basic Document to the contrary, the Owner Trustee shall not be required to take any action in any jurisdiction other than any state in which it is qualified to do business (any such state, a “State of Qualification”) if the taking of such action may (i) require the consent, approval, authorization or order of, or the giving of notice to, or the registration with, or the taking of any other action in respect of, any state or other governmental authority or agency of any jurisdiction other than a State of Qualification; (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivisions thereof in existence on the date hereof, other than a State of Qualification, becoming payable by the Owner Trustee; or (iii) subject the Owner Trustee to personal jurisdiction in any jurisdiction other than a State of Qualification for causes of action arising from acts unrelated to the consummation of the transactions by the Owner Trustee, as the case may be, contemplated hereby or in any other Transaction Document. In the event that the Owner Trustee does not take any action because such action may result in the consequences described in the preceding sentence, it will appoint an additional trustee pursuant to Section 10.05 to proceed with such action.
ARTICLE
VII
Concerning the Owner Trustee
Section 7.01 Acceptance of Trusts and Duties. The Owner Trustee accepts the trusts hereby created and agrees to perform its duties hereunder with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Owner Trust Estate upon the terms of this Agreement. The Owner Trustee shall not be answerable or accountable hereunder or under any Basic Document under any circumstances, except (i) for its own willful misconduct or negligence (including where such willful misconduct or negligence results in non-compliance with any covenant or agreement of the Owner Trustee herein), (ii) for liabilities arising from the failure by the Owner Trustee to perform obligations expressly undertaken by it in the last sentence of Section 6.04 hereof, (iii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee or (iv) for federal or state taxes, fees or other charges, based on or measured by any fees, commissions or compensation received by the Owner Trustee in connection with any of the transactions contemplated by this Agreement or any of the Basic Documents. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) The Owner Trustee shall not be liable for any error of judgment made by a Trust Officer of the Owner Trustee;
(b) The Owner Trustee shall not be liable with respect to any action taken or omitted to be taken by it in accordance with the instructions of the Administrator or any Certificateholder (provided that the instructions have been given by the requisite Percentage Interest of the Certificates pursuant to this Agreement or one of the Basic Documents, as applicable);
(c) No provision of this Agreement or any Basic Document shall require the Owner Trustee to expend or risk funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder or under any Basic Document if the Owner Trustee shall have determined that repayment of such funds or indemnity reasonably satisfactory to the Owner Trustee against such risk or liability is not reasonably assured or provided to it;
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(d) Under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any of the Basic Documents, including the principal of and interest on the Notes;
(e) The Owner Trustee shall not be responsible for or in respect of the accuracy, validity or sufficiency of this Agreement or for the due execution hereof by the Depositor or for the form, character, genuineness, sufficiency, value or validity of the Owner Trust Estate, or for or in respect of the accuracy, validity or sufficiency of the Basic Documents, the Trust Certificates or any other document supplied to the Owner Trustee other than the certificate of authentication on the Trust Certificates, and the Owner Trustee shall not in any event assume or incur any liability, duty or obligation to any Noteholder or to any Certificateholder, the Depositor or any other Person other than as expressly provided for herein;
(f) The Owner Trustee shall not be liable for the default or misconduct of the Administrator, the Depositor, the Indenture Trustee or the Servicer under any of the Basic Documents or otherwise, the Owner Trustee shall not have any obligation or liability to perform the obligations of the Trust under this Agreement or the Basic Documents that are required to be performed by the Administrator under the Administration Agreement, the Indenture Trustee under the Indenture or the Servicer or the Depositor under the Sale and Servicing Agreement and the Owner Trustee may assume performance by the Administrator, the Depositor, the Indenture Trustee and the Servicer absent written notice to or actual knowledge of a Trust Officer of the Owner Trustee to the contrary;
(g) The Owner Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to this Agreement or any Basic Document, at the request, order or direction of any of the Certificateholders or the Administrator, unless such Certificateholders or the Administrator have offered to the Owner Trustee reasonable security or indemnity satisfactory to the Owner Trustee against the costs, expenses and liabilities that may be incurred by it therein or thereby. The right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or in any Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of any such act;
(h) The Owner Trustee shall not be liable for any losses due to forces beyond the control of the Owner Trustee, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God and interruptions, loss or malfunctions of utilities or communications services;
(i) In no event shall the Owner Trustee be personally liable (i) for special, consequential, indirect or punitive damages or losses, (ii) for the acts or omissions of its nominees, correspondents, clearing agencies or securities depositories or (iii) for the acts or omissions of brokers or dealers;
(j) Notwithstanding anything to the contrary herein or any Basic Document, the Owner Trustee shall not be required to execute, deliver or certify on behalf of the Trust or any other Person, any filings, certificates, affidavits or other instruments required under the Sarbanes-Oxley Act of 2002;
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(k) The Owner Trustee has not provided and will not provide in the future, any advice, counsel or opinion regarding the tax, financial or investment implications and consequences of the formation, funding and ongoing administration of the Issuing Entity. The Owner Trustee has no duties to the Depositor, any Certificateholder, the Issuing Entity or any other parties with respect to these matters;
(l) The Owner Trustee shall not be deemed to have knowledge or notice of any event or information, including any default or Event of Default, or be required to act upon any event or information (including the sending of any notice), unless a Trust Officer shall have actual knowledge of such event or information or written notice of such event or information is received by a Trust Officer and such notice references the event or information. Absent written notice in accordance with this section, the Owner Trustee may conclusively assume that no such event has occurred. The Owner Trustee shall have no obligation to inquire into, or investigate as to, the occurrence of any such event (including any default or Event of Default). For purposes of determining the Owner Trustee’s responsibility and liability hereunder, whenever reference is made in this Trust Agreement to any event (including, but not limited to, a default or an Event of Default), such reference shall be construed to refer only to such event of which the Owner Trustee has received notice as described in this section. Knowledge of the Owner Trustee shall not be attributed or imputed to Wells Fargo’s other roles in the transaction; and
(m) In no event shall the Owner Trustee have any responsibility to monitor World Omni’s compliance with or be charged with knowledge of the Credit Risk Retention Rules, nor shall it be liable to any Noteholder, Certificateholder, or any party whatsoever for violation of such rules or requirements or such similar provisions now or hereafter in effect.
Section 7.02 Furnishing of Documents. The Owner Trustee shall furnish to the Certificateholders promptly upon receipt of a written request therefor, duplicates or copies of all reports, notices, requests, demands, certificates, financial statements and any other instruments furnished to the Owner Trustee under the Basic Documents. The Owner Trustee (i) shall have no responsibility for the accuracy of any information provided to the Certificateholders or any other Person that has been obtained from, or provided to the Owner Trustee, (ii) shall not be required to investigate or reconfirm the accuracy of any such information and (iii) shall not be liable in any matter whatsoever for any errors, inaccuracies or incorrect information resulting from the use of such information.
Section 7.03 Representations and Warranties of the Owner Trustee. The Owner Trustee hereby represents and warrants to the Depositor, for the benefit of the Certificateholders, that:
(a) It is a national banking association duly formed and validly existing under the laws of the United States. It has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.
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(b) It has taken all corporate action necessary to authorize the execution and delivery by it of this Agreement, and this Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor the consummation by it of the transactions contemplated hereby nor compliance by it with any of the terms or provisions hereof will (i) contravene any federal or Delaware law, governmental rule or regulation governing the banking or trust powers of the Owner Trustee or any judgment or order binding on it, (ii) constitute any default under its charter documents or bylaws, (iii) constitute any default under any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound or (iv) result in the creation or imposition of any lien, charge or encumbrance on the Owner Trust Estate resulting from actions by or claims against the Owner Trustee which are unrelated to this Agreement or the other Basic Documents.
(d) It has the power and authority to execute and deliver this Agreement; and the execution, delivery, and performance of this Agreement by it has been duly authorized by all necessary corporate action.
(e) This Agreement constitutes the legal, valid, and binding obligation of the Owner Trustee, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors’ rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
Section 7.04 [Reserved].
Section 7.05 Reliance; Advice of Counsel. (a) The Owner Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond, or other document or paper (whether in its original or facsimile form) believed by it to be genuine and believed by it to be signed by the proper party or parties. The Owner Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the method of determination of which is not specifically prescribed herein, the Owner Trustee may for all purposes hereof rely on a certificate (the costs of which shall be paid by the party requesting such action), signed by the president or any vice president or by the treasurer or other authorized officers of an appropriate Person, as to such fact or matter, and such certificate shall constitute full protection to the Owner Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon. The Owner Trustee need not investigate or re-calculate, evaluate, verify or independently determine the accuracy of any report, certificate, information, statement, representation or warranty or any fact or matter stated in any such document and may conclusively rely thereon as to the truth of the statements and the correctness of the opinions expressed therein.
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(b) In the exercise or administration of the trusts hereunder and in the performance of its duties and obligations under this Agreement or the Basic Documents, the Owner Trustee (i) may act directly or through its agents or attorneys pursuant to agreements entered into with it, and the Owner Trustee shall not be liable for the conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Owner Trustee with reasonable care, and (ii) may consult with counsel, accountants and other skilled Persons to be selected with reasonable care and employed by it. The Owner Trustee shall not be liable for anything done, suffered or omitted in good faith which it believes to be authorized or within its rights or powers, in accordance with the opinion or advice of any such counsel, accountants or other such Persons and not to its knowledge contrary to this Agreement or any Basic Document.
Section 7.06 Not Acting in Individual Capacity. Except as provided in this Article VII, in accepting the trusts hereby created, Wells Fargo Delaware Trust Company, N.A., acts solely as Owner Trustee hereunder and not in its individual capacity, and all Persons having any claim against the Owner Trustee by reason of the transactions contemplated by this Agreement or any Basic Document shall look only to the Owner Trust Estate for payment or satisfaction thereof.
Section 7.07 Owner Trustee Not Liable for Trust Certificates or Receivables. The Owner Trustee makes no representations as to the validity or sufficiency of this Agreement, of any Basic Document or of the Trust Certificates (other than the signature and countersignature of the Owner Trustee on the Trust Certificates) or the Notes, or of any Receivable or related documents. The Owner Trustee shall not at any time have any responsibility or liability for or with respect to the legality, validity and enforceability of any Receivable, or the perfection and priority of any security interest created by any Receivable in any Financed Vehicle or the maintenance of any such perfection and priority, or for or with respect to the sufficiency of the Owner Trust Estate or its ability to generate the payments to be distributed to Certificateholders under this Agreement or the Noteholders under the Indenture, including, without limitation: the existence, condition and ownership of any Financed Vehicle; the existence and enforceability of any insurance thereon; the existence and contents of any Receivable on any computer or other record thereof; the validity of the assignment of any Receivable to the Trust or of any intervening assignment; the completeness of any Receivable; the performance or enforcement of any Receivable; the compliance by the Depositor or the Servicer with any warranty or representation made under any Basic Document or in any related document or the accuracy of any such warranty or representation, or any action of the Administrator, the Indenture Trustee or the Servicer or any subservicer taken in the name of the Owner Trustee.
Section 7.08 Owner Trustee May Own Trust Certificates and Notes. The Owner Trustee in its individual or any other capacity may become the owner or pledgee of Trust Certificates or Notes and may deal with the Depositor, the Administrator, the Indenture Trustee and the Servicer in banking transactions with the same rights as it would have if it were not Owner Trustee.
Section 7.09 Legal Proceedings. As required by Regulation AB, the Owner Trustee will promptly as practicable notify the Servicer, the Depositor and the Issuing Entity of the commencement or, if applicable, the termination of any and all legal proceedings of which any property of the Owner Trustee is the subject, and any such proceedings known to be contemplated by governmental authorities, in each case, that is material to the Holders of any Notes. In addition, the Owner Trustee will furnish to the Servicer, the Depositor and the Issuing Entity, in writing, the necessary disclosure describing such proceedings required to be disclosed under Item 1117 of Regulation AB, for inclusion in reports filed pursuant to the Exchange Act.
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Section 7.10 Communications Regarding Demands to Repurchase Receivables. The Owner Trustee shall provide notice to World Omni and the Depositor, as soon as practicable and in any event within five Business Days, of all demands communicated to a Reporting Officer of the Owner Trustee for the repurchase or replacement of any Receivable for breach of the representations and warranties concerning such Receivable. Such notices shall be provided to World Omni and the Depositor at: (a) in the case of World Omni, World Omni Financial Corp., 190 Jim Moran Boulevard, Deerfield Beach, Florida 33442, Telecopy: (954) 429-2685, Attention: Treasurer, and (b) in the case of the Depositor, to World Omni Auto Receivables LLC, 190 Jim Moran Boulevard, Deerfield Beach, Florida 33442, Telecopy: (954) 429-2685, Attention: Treasurer, or at such other address or by such other means of communication as may be specified by World Omni or the Depositor to the Owner Trustee from time to time. The Owner Trustee acknowledges and agrees that the purpose of this Section 7.10 is to facilitate compliance by World Omni and the Depositor with Rule 15Ga-1 under the Exchange Act, as amended, and Items 1104(e) and 1121(c) of Regulation AB (the “Repurchase Rules and Regulations”). The Owner Trustee acknowledges that interpretations of the requirements of the Repurchase Rules and Regulations may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees to cooperate in good faith at the sole cost and expense of World Omni or the Depositor with any reasonable request made by World Omni or the Depositor for information which is required in order to enable World Omni or the Depositor to comply with the Repurchase Rules and Regulations. The Owner Trustee’s reporting is limited to information delivered to a Reporting Officer of the Owner Trustee that it has received or acquired solely in its capacity as Owner Trustee and not in any other capacity. The Owner Trustee is not a securitizer (as defined in the Repurchase Rules and Regulations) and in no event will Wells Fargo Delaware Trust Company, N.A., (individually or as Owner Trustee) have any responsibility or liability in connection with (i) the compliance by any person who is a securitizer (as defined in Rule 15Ga-1) in connection with the Issuing Entity, or any other person under the Repurchase Rules and Regulations or (ii) any filing required to be made by a securitizer under the Repurchase Rules and Regulations in connection with the information provided pursuant to this Section 7.10. Other than any express duties or responsibilities as Owner Trustee under this Agreement, the Owner Trustee has no duty or obligation to undertake any investigation or inquiry related to demands for the repurchase or replacement of any Receivable or otherwise to assume any additional duties or responsibilities in respect of any transaction contemplated in this Agreement, and no such additional obligations or duties are implied in this Agreement. The Owner Trustee will not have any duty to conduct, and has not conducted, any affirmative investigation as to the occurrence of any conditions requiring the repurchase or replacement of any Receivable.
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ARTICLE
VIII
Compensation of Owner Trustee
Section 8.01 Owner Trustee’s Fees and Expenses. The Owner Trustee shall receive as compensation for its services hereunder during the term of this Agreement such fees as have been separately agreed upon in writing before the date hereof between the Administrator and the Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed by the Administrator pursuant to the Administration Agreement for its other reasonable and documented expenses hereunder, including the reasonable and documented compensation, expenses and disbursements of such agents, representatives, experts and counsel as the Owner Trustee may employ in connection with the exercise and performance of its rights and its duties hereunder; provided, that reimbursement for expenses and disbursements of any legal counsel to the Owner Trustee in connection with the Closing Date shall be subject to any limitations separately agreed upon before the date hereof between the Depositor (or any Affiliate thereof) and the Owner Trustee. The provisions of this Section 8.01 shall survive the resignation or removal of the Owner Trustee and the termination of this Agreement.
Section 8.02 Indemnification. Pursuant to the Administration Agreement, the Administrator shall be liable as primary obligor for, and shall indemnify the Owner Trustee and its officers, directors, stockholders, employees, successors, assigns, agents and servants (collectively, the “Indemnified Parties”) from and against, any and all liabilities, obligations, losses, costs, damages, taxes, claims, actions and suits, and any and all reasonable and documented costs, expenses and disbursements (including reasonable and documented legal fees and expenses and including, without limitation, any legal fees, costs and expenses incurred in connection with any enforcement (including any action, claim or suit brought) by the Owner Trustee or any other Indemnified Party of any indemnification or other obligation of the Administrator) of any kind and nature whatsoever (collectively, “Expenses”) which may at any time be imposed on, incurred by or asserted against any Indemnified Party in any way relating to or arising out of this Agreement, the Basic Documents, the Owner Trust Estate, the administration of the Owner Trust Estate or the action or inaction of any Indemnified Party hereunder, except only that the Administrator shall not be liable for or required to indemnify an Indemnified Party from and against Expenses arising or resulting from any of the matters described in clauses (i), (ii), (iii) or (iv) of the third sentence of Section 7.01. The indemnities contained in this Section shall survive the resignation or removal of the Owner Trustee or the termination or assignment of this Agreement. In any event of any claim, action or proceeding for which indemnity is sought pursuant to this Section, the Owner Trustee’s choice of legal counsel shall be subject to the approval of the Administrator, which approval shall not be unreasonably withheld or delayed.
Section 8.03 Payments to the Owner Trustee. Any amounts paid to the Owner Trustee pursuant to this Article VIII shall be deemed not to be a part of the Owner Trust Estate simultaneously with such payment.
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ARTICLE
IX
Termination of Trust Agreement
Section 9.01 Termination of Trust Agreement. (a) The Trust shall be dissolved immediately prior to the final distribution by the Owner Trustee or Paying Agent of all monies or other property or proceeds of the Owner Trust Estate in accordance with the terms of the Indenture, the Sale and Servicing Agreement and Article V. The bankruptcy, liquidation, dissolution, death or incapacity of any Certificateholder shall not (x) operate to terminate this Agreement or the Trust or (y) entitle such Certificateholder’s legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of all or any part of the Trust or Owner Trust Estate or (z) otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Depositor nor any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date upon which Certificateholders shall surrender their Trust Certificates to the Paying Agent for payment of the final distribution and cancellation, shall be given by the Paying Agent by letter to Certificateholders mailed within five Business Days of receipt of actual notice of such termination from the Servicer given pursuant to Section 9.01(b) of the Sale and Servicing Agreement, stating (i) the Payment Date upon or with respect to which final payment of the Trust Certificates shall be made upon presentation and surrender of the Trust Certificates at the office of the Paying Agent therein designated, (ii) the amount of any such final payment and (iii) that the Record Date otherwise applicable to such Payment Date is not applicable, and, as a result, payments will be made only upon presentation and surrender of the Trust Certificates by Certificateholders at the office of the Paying Agent therein specified. The Paying Agent shall give such notice to the Certificate Registrar (if other than the Indenture Trustee) and the Owner Trustee at the time such notice is given to Certificateholders. Upon presentation and surrender of the Trust Certificates, the Paying Agent shall cause to be distributed to Certificateholders amounts distributable on such Payment Date pursuant to Section 5.02.
In the event that all of the Certificateholders shall not surrender their Trust Certificates for cancellation within six months after the date specified in the above-mentioned written notice, the Paying Agent shall give a second written notice to the remaining Certificateholders to surrender their Trust Certificates for cancellation and receive the final distribution with respect thereto. If within one year after the second notice all the Trust Certificates shall not have been surrendered for cancellation, the Owner Trustee or Paying Agent may take appropriate steps, or may appoint an agent to take appropriate steps, to contact the remaining Certificateholders concerning surrender of their Trust Certificates, and the cost thereof shall be paid out of the funds and other assets that shall remain subject to this Agreement. Any funds remaining in the Owner Trust Estate after exhaustion of such remedies shall be distributed by the Paying Agent to the Depositor subject to applicable escheat laws.
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(d) Upon the winding up of the Trust and receipt of written instruction from the Administrator, the Owner Trustee shall cause the Certificate of Trust to be cancelled by filing a certificate of cancellation (as provided to it) with the Secretary of State of the State of Delaware in accordance with the provisions of Section 3810 of the Statutory Trust Act and thereupon the Trust and this Trust Agreement (other than Article VIII) shall terminate and be of no further force or effect.
ARTICLE
X
Successor Owner Trustees and Additional Owner Trustees
Section 10.01 Eligibility Requirements for Owner Trustee. The Owner Trustee shall at all times be a corporation or other entity satisfying the provisions of Section 3807(a) of the Statutory Trust Act and it shall at all times be authorized to exercise corporate trust powers; having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by federal or state authorities and having (or having a parent which has) a long-term rating in any generic rating category which signifies investment grade by each Rating Agency or a rating otherwise acceptable to each Rating Agency. If such entity shall publish reports of condition at least annually pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purpose of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Owner Trustee shall cease to be eligible in accordance with the provisions of this Section, the Owner Trustee shall resign promptly in the manner and with the effect specified in Section 10.02.
Section 10.02 Resignation or Removal of Owner Trustee. (a) Subject to paragraph (c) of this Section, the Owner Trustee may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the Administrator. Upon receiving such notice of resignation, the Administrator shall promptly appoint a successor Owner Trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the resigning Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner Trustee shall have been so appointed and have accepted appointment within 30 days after the giving of such notice of resignation, the resigning Owner Trustee, as applicable, may petition (at the expense of the Depositor (including without limitation reasonable and documented attorneys’ fees, costs and expenses)) any court of competent jurisdiction for the appointment of a successor Owner Trustee.
(b) Subject to paragraph (c) of this Section, if at any time the Owner Trustee shall cease to be eligible in accordance with the provisions of Section 10.01 and shall fail to resign after written request therefor by the Administrator, or if at any time the Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Owner Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Administrator may remove the Owner Trustee. If the Administrator or the Depositor shall remove the Owner Trustee under the authority of the immediately preceding sentences, the Administrator shall promptly appoint a successor Owner Trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the outgoing Owner Trustee so removed and one copy to the successor Owner Trustee, and shall pay all fees owed to the outgoing Owner Trustee and one copy to the Depositor, together with the basis for removal.
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(c) Any resignation or removal of the Owner Trustee and appointment of a successor Owner Trustee pursuant to any of the provisions of this Section shall not become effective until acceptance of appointment by the successor Owner Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to the outgoing Owner Trustee. The Administrator shall provide notice of such resignation or removal of the Owner Trustee to each Rating Agency.
Section 10.03 Successor Owner Trustee. Any successor Owner Trustee appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to the Administrator and to its predecessor Owner Trustee an instrument accepting such appointment under this Agreement, and thereupon the resignation or removal of the predecessor Owner Trustee shall become effective, and such successor Owner Trustee, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as if originally named as Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees and expenses deliver to the successor Owner Trustee all documents and statements and monies held by it under this Agreement, and the Administrator and the predecessor Owner Trustee shall execute and deliver such instruments and do such other things as may reasonably be required for fully and certainly vesting and confirming in the successor Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor Owner Trustee shall be eligible pursuant to Section 10.01.
Upon written acceptance of appointment by a successor Owner Trustee pursuant to this Section, the Administrator shall mail notice thereof to all Certificateholders, the Indenture Trustee, the Noteholders and the Rating Agencies. If the Administrator shall fail to mail such notice within 10 Business Days after acceptance of such appointment by the successor Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed at the expense of the Administrator.
Any successor Owner Trustee appointed hereunder shall promptly file an amendment to the Certificate of Trust with the Secretary of State of the State of Delaware as required by the Statutory Trust Act.
Section 10.04 Merger or Consolidation of the Owner Trustee. Any corporation or other entity into which the Owner Trustee may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Owner Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Owner Trustee, shall be the successor to and assume all obligations of the Owner Trustee, without the execution or filing of any assignment or other instrument or any further act on the part of such other entity or any of the parties hereto, anything herein to the contrary notwithstanding; provided, that such corporation or other entity shall be eligible pursuant to Section 10.01 and, provided, further, that the Owner Trustee shall mail notice of such merger, conversion or consolidation to the Depositor, who shall promptly deliver such notice to each Rating Agency.
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Section 10.05 Appointment of Co-Trustee or Separate Trustee. Notwithstanding any other provisions of this Agreement, at any time, for the purpose of (i) meeting any legal requirements of any jurisdiction in which any part of the Owner Trust Estate or any Financed Vehicle may at the time be located, (ii) facilitating enforcement actions and (iii) mitigating conflicts of interest, the Administrator and the Owner Trustee acting jointly shall have the power and shall execute and deliver all instruments to appoint one or more Persons approved by the Administrator and Owner Trustee to act as co-trustee, jointly with the Owner Trustee, or as separate trustee or separate trustees, of all or any part of the Owner Trust Estate, and to vest in such Person, in such capacity, such title to the Trust or any part thereof and, subject to the other provisions of this Section, such powers, duties, obligations, rights and trusts as the Administrator and the Owner Trustee may consider necessary or desirable. If the Administrator shall not have joined in such appointment within 15 days after the receipt by it of a request so to do, the Owner Trustee alone shall have the power to make such appointment. No co-trustee or separate trustee under this Agreement shall be required to meet the terms of eligibility as a successor Owner Trustee pursuant to Section 10.01 and no notice of the appointment of any co-trustee or separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed upon the Owner Trustee shall be conferred upon and exercised or performed by the Owner Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not an agent of the Owner Trustee and is not authorized to act separately without the Owner Trustee joining in such act), except to the extent that, under any law of any jurisdiction in which any particular act or acts are to be performed, the Owner Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Owner Trust Estate or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Owner Trustee;
(b) No trustee under this Agreement shall be personally liable by reason of any act or omission of any other trustee under this Agreement; and
(c) The Administrator and the Owner Trustee acting jointly may at any time accept the resignation of or remove any separate trustee or co-trustee without notice to any Rating Agency or any other Person.
Any notice, request or other writing given to the Owner Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Owner Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a copy thereof given to the Administrator.
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Any separate trustee or co-trustee may at any time appoint the Owner Trustee as its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Owner Trustee, to the extent permitted by law, without the appointment of a new or successor co-trustee or separate trustee.
ARTICLE
XI
Miscellaneous
Section 11.01 Supplements and Amendments. This Agreement may be amended by the Depositor and the Owner Trustee, without the consent of any of the Noteholders or the Certificateholders, to cure any ambiguity, to correct or supplement any provision in this Agreement (including to further prevent or help avoid the application to the Certificates of the Treasury Regulations (or other interpretive guidance) issued under Section 385 of the Code) or for the purpose of adding any provision to or changing in any manner or eliminating any of the provisions in this Agreement or of modifying in any manner the rights of the Noteholders or the Certificateholders. Such amendments require: (i) satisfaction of the Rating Agency Condition or (ii) an Officer’s Certificate of the Depositor delivered to the Issuing Entity, the Owner Trustee and the Indenture Trustee stating that the amendment will not materially and adversely affect the interest of any Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Depositor and the Owner Trustee, with the consent of holders of at least a majority of the Outstanding Amount of the Controlling Securities (unless (i) the interests of the Noteholders are not affected materially and adversely, as evidenced by an Officer’s Certificate of the Depositor to that effect delivered to the Indenture Trustee and the Owner Trustee by the Depositor or (ii) satisfaction of the Rating Agency Condition) and the consent of the Certificateholders evidencing at least a majority Percentage Interest of the Trust Certificates (unless (i) the interests of the Certificateholders are not affected materially and adversely and (ii) an Officer’s Certificate of the Depositor to that effect is delivered to the Owner Trustee by the Depositor), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders or the Certificateholders; provided, however, that no such amendment shall (a) increase or reduce in any manner the amount of, or accelerate or delay the timing of, collections of payments on Receivables or distributions that shall be required to be made for the benefit of the Noteholders or the Certificateholders or (b) reduce the aforesaid percentage of the Outstanding Amount of the Controlling Securities and the Percentage Interest in the Trust Certificates required to consent to any such amendment, without the consent of the holders of all the Outstanding Notes and Certificates affected thereby.
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Promptly after the execution of any such amendment or consent, the Owner Trustee shall furnish written notification of the substance of such amendment or consent to the Administrator and the Administrator shall furnish such notice to each Certificateholder, the Indenture Trustee and each Rating Agency.
It shall not be necessary for the consent of Certificateholders, Noteholders or the Indenture Trustee pursuant to this Section to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents (and any other consents of Certificateholders provided for in this Agreement or in any other Basic Document) and of evidencing the authorization of the execution thereof by Certificateholders shall be subject to such reasonable requirements as the Administrator may prescribe.
Promptly after the execution of any amendment to the Certificate of Trust, the Owner Trustee shall cause the filing of such amendment with the Secretary of State of the State of Delaware.
In connection with the execution of any amendment to this Agreement or any amendment to any other agreement to which the Issuing Entity is a party, the Owner Trustee shall be entitled to receive and conclusively rely upon an Opinion of Counsel to the effect that such amendment is authorized or permitted by this Agreement or, as applicable such other agreement, and that all conditions precedent to the execution and delivery thereof by the Issuing Entity or the Owner Trustee, as the case may be, have been satisfied. The Owner Trustee may, but shall not be obligated to, enter into any such amendment that affects the Owner Trustee’s own rights, duties or immunities under this Agreement or otherwise.
Section 11.02 No Legal Title to Owner Trust Estate in Certificateholders. The Certificateholders shall not have legal title to any part of the Owner Trust Estate. The Certificateholders shall be entitled to receive distributions with respect to their undivided ownership interest therein only in accordance with Articles V and IX. No transfer, by operation of law or otherwise, of any right, title or interest of the Certificateholders to and in their ownership interest in the Owner Trust Estate shall operate to terminate this Agreement or the trusts hereunder or entitle any transferee to an accounting or to the transfer to it of legal title to any part of the Owner Trust Estate.
Section 11.03 Limitations on Rights of Others. Except for Section 2.07, the provisions of this Agreement are solely for the benefit of the Owner Trustee, the Depositor, the Certificateholders, the Administrator, the Servicer and, to the extent expressly provided herein, the Indenture Trustee and the Noteholders, and nothing in this Agreement (other than Section 2.07 hereof), whether express or implied, shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Owner Trust Estate or under or in respect of this Agreement or any covenants, conditions or provisions contained herein.
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Section 11.04 Notices. (a) Unless otherwise expressly specified or permitted by the terms hereof, all notices shall be in writing and shall be deemed given upon receipt by the intended recipient or on the next Business Day after delivery if delivered by a recognized overnight courier or upon receipt of written confirmation of receipt of facsimile, if delivered by facsimile (except that notice to the Owner Trustee shall be deemed given only upon actual receipt by the Owner Trustee), if to the Owner Trustee, addressed to the Corporate Trust Office, if to the Depositor, addressed to World Omni Auto Receivables LLC, 190 Jim Moran Boulevard, Deerfield Beach, Florida 33442, telephone: (954) 429-2200, facsimile: (954) 429-2685, Attention: Treasurer; or, as to each party, at such other address or electronic mail address as shall be designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a Certificateholder shall be given by first-class mail, postage prepaid, at the address of such Certificateholder as shown in the Certificate Register. Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the Certificateholder receives such notice.
(c) The Depositor’s obligation to deliver or provide any demand, delivery, notice, communication or instruction to any Person other than a Noteholder shall be satisfied by the Depositor making such demand, delivery, notice, communication or instruction available at https://via.intralinks.com/, or such other website or distribution service or provider as the Depositor shall designate by written notice to the other parties.
Section 11.05 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 11.06 Separate Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 11.07 Successors and Assigns. All covenants and agreements contained herein shall be binding upon, and inure to the benefit of, each of the Depositor and its permitted assignees, the Owner Trustee and its successors, and each Certificateholder and its successors and permitted assigns, all as herein provided. Any request, notice, direction, consent, waiver or other instrument or action by a Certificateholder shall bind the successors and assigns of such Certificateholder.
Section 11.08 Covenants of the Depositor. In the event that any Certificateholder commences any litigation with claims in excess of $1,000,000 to which the Depositor is a party which in the judgment of counsel to the Depositor who may be an employee of the Depositor, shall be reasonably likely to result in a material judgment against the Depositor that the Depositor will not be able to satisfy, during the period beginning nine months following the commencement of such litigation and continuing until such litigation is dismissed or otherwise terminated (and, if such litigation has resulted in a final judgment against the Depositor, such judgment has been satisfied), the Depositor shall not pay any dividend to World Omni, or make any distribution to World Omni, or repay the principal amount of any indebtedness of the Depositor held by World Omni, unless (i) after giving effect to such dividend, distribution or repayment, the Depositor’s liquid assets shall not be less than the amount of actual damages claimed in such litigation that are reasonably likely to equal the amount of the judgment, if any, against the Depositor or (ii) the Rating Agency Condition shall have been satisfied with respect to any such dividend, distribution or repayment. The Depositor will not at any time institute against the Trust any bankruptcy proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Trust Certificates, the Notes, the Trust Agreement or any of the Basic Documents.
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Section 11.09 No Petition. To the fullest extent permitted by applicable law, the Owner Trustee, by entering into this Agreement, each Certificateholder, by accepting a Trust Certificate, and the Indenture Trustee and each Noteholder, by accepting the benefits of this Agreement, hereby covenant and agree that they will not at any time institute against the Depositor or the Trust, or join in any institution against the Depositor or the Trust of, any involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States Federal or state bankruptcy or similar law in connection with any obligations relating to the Trust Certificates, the Notes, this Agreement or any of the Basic Documents.
Section 11.10 No Recourse. Each Certificateholder by accepting a Trust Certificate acknowledges that such Certificateholder’s Trust Certificates represent beneficial interests in the Trust only and do not represent interests in or obligations of the Depositor, the Servicer, the Administrator, the Owner Trustee, the Indenture Trustee or any Affiliate thereof and no recourse may be had against such parties or their assets, except as may be expressly set forth or contemplated in this Agreement, the Trust Certificates or the Basic Documents to which such parties are a party.
In the event that a Certificateholder (other than the Depositor) is deemed, under applicable law by any court or other authority of competent jurisdiction, to have an interest in any assets of the Depositor or any Affiliate of the Depositor other than the beneficial interest in the Trust (“other assets”), the parties to this Agreement and the Certificateholders acknowledge and agree that: (i) such Certifcateholder’s Certificate represents an undivided beneficial interest in the assets of the Trust and the Trust Estate only, (ii) any such Certificateholder’s claim against any other assets shall be, and hereby is, subject and subordinate in all respects to the rights of other Persons to whom rights in the other assets have been expressly granted (“entitled Persons”), including to the payment in full of all amounts owing to such entitled Persons, and (iii) the covenant set forth in the preceding clause (ii) constitutes a “subordination agreement” within the meaning of, and subject to, Section 510(a) of the Bankruptcy Code.
Section 11.11 Headings. The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.
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Section 11.12 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS; provided, however, that there shall not be applicable to the parties hereunder or this Agreement any provision of the laws (common or statutory) of the State of Delaware pertaining to trusts that relate to or regulate, in a manner inconsistent with the terms hereof, (a) the filing with any court or governmental body or agency of trustee accounts or schedules of trustee fees and charges, (b) affirmative requirements to post bonds for trustees, officers, agents or employees of a trust, (c) the necessity for obtaining court or other governmental approval concerning the acquisition, holding or disposition of real or personal property, (d) fees or other sums payable to trustees, officers, agents or employees of a trust, (e) the allocation of receipts and expenditures to income or principal, (f) restrictions or limitations on the permissible nature, amount or concentration of trust investments or requirements relating to the titling, storage or other manner of holding or investing trust assets or (g) the establishment of fiduciary or other standards of responsibility or limitations on the acts or powers of trustees that are inconsistent with the limitations or authorities and powers of the Owner Trustee hereunder as set forth or referenced in this Agreement. Section 3540 of Title 12 of the Delaware Code shall not apply to the Trust.
To the fullest extent permitted by applicable law, each of the parties to this agreement and each Certificateholder by its acceptance thereof, hereby irrevocably and unconditionally consents to submit to the nonexclusive jurisdiction of the courts of the State of Delaware for purposes of any action or proceeding arising out of or in connection with this Agreement, the Certificates or the transactions contemplated hereby or thereby.
EACH OF THE PARTIES HERETO, AND EACH CERTIFICATEHOLDER BY ITS ACCEPTANCE THEREOF, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE CERTIFICATES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 11.13 Compliance with Applicable Anti-Terrorism and Anti Money Laundering Regulations. The parties hereto and each Certificateholder acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the USA PATRIOT Act and its implementing regulations, the Owner Trustee and the Paying Agent, in order to help fight the funding of terrorism and money laundering, are required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Owner Trustee or the Paying Agent. Each party hereto and each Certificateholder by its acceptance of a Trust Certificate agrees that it shall provide the Owner Trustee and the Paying Agent with such information as may be available for such party as the Owner Trustee and the Paying Agent may request that will help the Owner Trustee and the Paying Agent to identify and verify each party’s identity, including without limitation each party’s name, physical address, tax identification number, organizational documents, certificates of good standing, licenses to do business or other pertinent identifying information.
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ARTICLE
XII
COMPLIANCE WITH REGULATION AB
Section 12.01 Intent of the Parties; Reasonableness. The Depositor and the Owner Trustee acknowledge and agree that the purpose of this Article XII is to facilitate compliance by the Depositor with the provisions of Regulation AB and the related rules and regulations of the Commission. The Depositor shall not exercise its right to request delivery of information or other performance under these provisions other than in good faith, or for purposes other than the Depositor’s compliance with the Securities Act, the Exchange Act and the rules and regulations of the Commission thereunder (or the provision in a private offering of disclosure comparable to that required under the Securities Act). The Owner Trustee agrees to cooperate in good faith with the Depositor and shall deliver (and cause each of its Reporting Subcontractors, if any, to deliver) to the Depositor any information reasonably requested by the Depositor regarding the Owner Trustee which is required in order to enable the Depositor to comply with the provisions of Items 1109(a), 1109(b), 1117 and 1119 of Regulation AB or any of its other Exchange Act reporting obligations as it relates to the Owner Trustee or to the Owner Trustee’s obligations under this Agreement (including with respect to any of its successors or predecessors; provided, however, that this parenthetical shall apply only to the successors or predecessors of the Owner Trustee contemplated by Section 10.04 hereof). The obligations of the Owner Trustee to provide such information shall survive the removal or resignation of the Owner Trustee hereunder.
Section 12.02 Information to Be Provided by the Owner Trustee. The Owner Trustee shall (i) on or before the fifth Business Day following a written request of the Depositor, provide to the Depositor, in writing, such information regarding the Owner Trustee as is requested for the purpose of compliance with Item 1117 of Regulation AB, and (ii) pursuant to Section 7.09 hereof as promptly as practicable following notice to or discovery by the Owner Trustee of any changes to such information, provide to the Depositor, in writing, updated information necessary for compliance with Item 1117 of Regulation AB.
The Owner Trustee shall (i) on or before the fifth Business Day following a written request of the Depositor in connection with the preparation of any required quarterly or annual report, provide to the Depositor such information regarding the Owner Trustee as is requested for the purpose of compliance with Items 1109(a), 1109(b) and 1119 of Regulation AB, and (ii) as promptly as practicable following notice to or discovery by the Owner Trustee of any changes to such information, provide to the Depositor, in writing, updated information. Such information shall include, at a minimum:
(a) the Owner Trustee’s name and form of organization;
(b) a description of the extent to which the Owner Trustee has had prior experience serving as a trustee for asset-backed securities transactions involving receivables of the same type as the Receivables;
(c) a description of any affiliation between the Owner Trustee and any of the following parties to a Securitization Transaction, as such parties are identified to the Owner Trustee by the Depositor in writing in advance of such Securitization Transaction:
(i) the sponsor;
(ii) any depositor;
(iii) the issuing entity;
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(iv) any servicer;
(v) any trustee;
(vi) any originator;
(vii) any significant obligor;
(viii) any enhancement or support provider, including any swap or cap counterparty;
(ix) any asset representations reviewer; and
(x) any other material transaction party.
In connection with the above-listed parties, a description of whether there is, and if so the general character of, any business relationship, agreement, arrangement, transaction or understanding that is entered into outside the ordinary course of business or is on terms other than would be obtained in an arm’s length transaction with an unrelated third party, apart from the asset-backed securities transaction, that currently exists or that existed during the past two years and that is material to an investor’s understanding of the asset-backed securities.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly executed by their respective officers hereunto duly authorized, as of the day and year first above written.
WORLD OMNI AUTO RECEIVABLES LLC, | ||
as Depositor | ||
By: | /s/ Bryan Romano | |
Name: Bryan Romano | ||
Title: Assistant Treasurer | ||
WELLS FARGO DELAWARE TRUST COMPANY, N.A, not in its individual capacity, but solely as Owner Trustee, | ||
By: | /s/ Jose I. Mercado | |
Name: Jose I. Mercado | ||
Title: Vice President |
U.S. BANK NATIONAL ASSOCIATION acknowledges and accepts, as of the date first above written, its appointment as Paying Agent and Certificate Registrar in accordance with the terms of this Agreement and agrees to be bound by the terms of this Agreement applicable to the Paying Agent and Certificate Registrar.
By: | /s/ Christopher J. Nuxoll | |
Name: | Christopher J. Nuxoll | |
Title: | Vice President |
EXHIBIT A
FORM OF TRUST CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED TO THE NOTES, AS AND TO THE EXTENT SET FORTH IN THE SALE AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS CERTIFICATE THE HOLDER HEREOF IS DEEMED TO REPRESENT TO THE DEPOSITOR AND THE OWNER TRUSTEE (i) THAT IT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D PROMULGATED UNDER THE 1933 ACT (AN “ACCREDITED INVESTOR”) AND THAT IT IS ACQUIRING THIS CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE ACCREDITED INVESTORS UNLESS THE HOLDER IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, THE PUBLIC DISTRIBUTION HEREOF, (ii) THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE 1933 ACT (A “QUALIFIED INSTITUTIONAL BUYER”) AND IS ACQUIRING SUCH CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS) OR (iii) THAT IT IS AN INVESTOR THAT IS OTHERWISE PERMITTED TO ACQUIRE THIS CERTIFICATE UNDER THE TRUST AGREEMENT.
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE BY ANY PERSON UNLESS EITHER (i) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO THE DEPOSITOR, (ii) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO AN ACCREDITED INVESTOR THAT EXECUTES A CERTIFICATE, SUBSTANTIALLY IN THE FORM SPECIFIED IN THE TRUST AGREEMENT, TO THE EFFECT THAT IT IS AN ACCREDITED INVESTOR ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE ACCREDITED INVESTORS UNLESS THE HOLDER IS A BANK ACTING IN ITS FIDUCIARY CAPACITY), (iii) SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A PERSON WHO THE PROSPECTIVE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A QUALIFIED INSTITUTIONAL BUYER, ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (iv) SUCH SALE, PLEDGE OR OTHER TRANSFER IS OTHERWISE MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT, IN WHICH CASE THE OWNER TRUSTEE SHALL REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO THE OWNER TRUSTEE AND THE DEPOSITOR IN WRITING THE FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER TRUSTEE AND THE DEPOSITOR. EXCEPT IN THE CASE OF A TRANSFER DESCRIBED IN CLAUSES (i) OR (iii) ABOVE, THE OWNER TRUSTEE, THE DEPOSITOR AND THE CERTIFICATE REGISTRAR SHALL REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE DEPOSITOR, ANY AFFILIATE OF THE DEPOSITOR OR THE OWNER TRUSTEE) SATISFACTORY TO THE DEPOSITOR AND THE OWNER TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE 1933 ACT.
Ex. A-1
EACH SECURITYHOLDER, BY ITS ACCEPTANCE OF THIS SECURITY, COVENANTS AND AGREES THAT SUCH SECURITYHOLDER, SHALL NOT, PRIOR TO THE DATE THAT IS ONE YEAR AND ONE DAY AFTER THE TERMINATION OF THE TRUST AGREEMENT, ACQUIESCE, PETITION OR OTHERWISE INVOKE OR CAUSE THE TRUST OR THE DEPOSITOR TO INVOKE THE PROCESS OF ANY COURT OR GOVERNMENTAL AUTHORITY FOR THE PURPOSE OF COMMENCING OR SUSTAINING AN INVOLUNTARY CASE AGAINST THE TRUST OR THE DEPOSITOR UNDER ANY FEDERAL OR STATE BANKRUPTCY, INSOLVENCY, REORGANIZATION OR SIMILAR LAW, OR APPOINTING A RECEIVER, LIQUIDATOR, ASSIGNEE, TRUSTEE, CUSTODIAN, SEQUESTRATOR OR OTHER SIMILAR OFFICIAL OF THE TRUST OR THE DEPOSITOR OR ANY SUBSTANTIAL PART OF ITS PROPERTY, OR ORDERING THE WINDING UP OR LIQUIDATION OF THE AFFAIRS OF THE TRUST OR THE DEPOSITOR.
No transfer of this Certificate shall be made to any Person unless the Certificate Registrar has received (A) a certificate in the form of paragraph 3 to the Investment Letter attached to the trust agreement as Exhibit D from such Person to the effect that such Person is not and is not acting on behalf of (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan subject to Section 4975 of the internal revenue Code of 1986, as amended (the “Code”), (iii) any entity whose underlying assets include plan assets by reason of a plan’s investment in the entity or (iv) any plan that is subject to any federal, state or local law that is, to a material extent, similar to the foregoing provisions of ERISA or Section 4975 of the Code (“Similar Law”) (each, a “Plan”) or (B) an opinion of counsel satisfactory to the Owner Trustee, the Certificate Registrar and the Depositor to the effect that the purchase and holding of this Certificate by such Person (i) will not result in the assets of the Issuing Entity being deemed to be “plan assets” subject to the prohibited transactions provisions of ERISA, Section 4975 of the Code or Similar Law and will not subject the Owner Trustee, the Indenture Trustee, the Certificate Registrar, the Servicer or the Depositor to any obligation in addition to those undertaken in the Basic Documents and (ii) will not constitute or result in a prohibited transaction under ERISA, Section 4975 of the Code or Similar Law. The preparation and delivery of the certificate and opinions referred to above with respect to a proposed transfer shall not be an expense of the Issuing Entity, the Owner Trustee, the Certificate Registrar, the Indenture Trustee, World Omni (in any capacity) or the Depositor. Any attempted or purported transfer in violation of these transfer restrictions will be null and void and will vest no rights in any purported transferee.
Ex. A-2
THIS CERTIFICATE WILL NOT BE REGISTERED FOR TRANSFER UNLESS THE CERTIFICATE REGISTRAR RECEIVES (A) A CERTIFICATION FROM THE TRANSFEREE OF SUCH CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE AND (B) THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR, THE DEPOSITOR AND THE INDENTURE TRUSTEE SHALL HAVE RECEIVED AN OPINION OF COUNSEL (WHICH COUNSEL IS INDEPENDENT FROM THE DEPOSITOR AND THE TRUST) THAT SUCH ACTION SHALL NOT CAUSE THE TRUST TO BE TREATED AS AN ASSOCIATION (OR PUBLICLY TRADED PARTNERSHIP) TAXABLE AS A CORPORATION FOR FEDERAL INCOME TAX PURPOSES AND SUCH TRANSFEREE OR ASSIGNEE SHALL AGREE TO TAKE POSITIONS FOR TAX PURPOSES CONSISTENT WITH THE TAX POSITIONS SET FORTH IN SECTION 2.06 OF THE TRUST AGREEMENT AS AGREED TO BE TAKEN BY THE CERTIFICATEHOLDER.
Ex. A-3
NO.:
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A
TRUST CERTIFICATE
evidencing a fractional undivided beneficial interest in the Trust, as defined below, the property which consists of retail installment sale contracts for new and used automobiles and light-duty trucks (transferred to the Trust on the Closing Date (the “Receivables”), all monies received on or after the Cutoff Date; any proceeds with respect to the Receivables from claims on any physical damage, credit life or disability, theft, mechanical breakdown or “guaranteed auto protection” insurance policies relating to Financed Vehicles or Obligors; any Financed Vehicle that shall have secured a Receivable and shall have been acquired by or on behalf of the Depositor, the Servicer, or the Trust; the Receivables Purchase Agreement; the Sale and Servicing Agreement, including the right of the Depositor to cause World Omni to purchase Receivables under certain circumstances; the Trust Accounts; and certain other rights under the Trust Agreement and Sale and Servicing Agreement and all proceeds of the foregoing (but excluding the Notes and Trust Certificates).
THIS TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF WORLD OMNI AUTO RECEIVABLES LLC, WORLD OMNI FINANCIAL CORP. OR ANY OF THEIR RESPECTIVE AFFILIATES.
THIS CERTIFIES THAT ________________ is the registered owner of ___% nonassessable, fully-paid, fractional undivided beneficial interest in World Omni Auto Receivables Trust 2017-A (the “Trust”), formed by World Omni Auto Receivables LLC, a Delaware limited liability company (the “Depositor”).
OWNER TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned Trust Agreement.
WELLS FARGO DELAWARE TRUST COMPANY, N.A., not in its individual capacity but solely as Owner Trustee |
OR |
WELLS FARGO DELAWARE TRUST COMPANY, N.A., not in its individual capacity but solely as Owner Trustee
By: U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | By: | |||
Name: | Name: | |||
Title: | Title: |
Ex. A-4
The Trust was created pursuant to a Trust Agreement dated March 13, 2017 (as amended and restated on April 19, 2017, and as may be amended, restated or supplemented from time to time, the “Trust Agreement”), between the Depositor and Wells Fargo Delaware Trust Company, N.A., as owner trustee (the “Owner Trustee”), a summary of certain of the pertinent provisions of which is set forth below. To the extent not otherwise defined herein, the capitalized terms used herein have the meanings assigned to them in the Trust Agreement or the Sale and Servicing Agreement, dated as of April 19, 2017 (as amended and supplemented from time to time, the “Sale and Servicing Agreement”), among the Trust, the Depositor and World Omni Financial Corp., as servicer (the “Servicer”), as applicable.
This Certificate is one of the duly authorized Certificates designated as “Trust Certificates” (herein called the “Trust Certificates”). Also issued under an Indenture, dated as of April 19, 2017 (the “Indenture”), between the Trust and U.S. Bank National Association, as indenture trustee, are the Notes designated as “Asset-Backed Notes” (the “Notes”). This Trust Certificate is issued under and is subject to the terms, provisions and conditions of the Trust Agreement, to which Trust Agreement the Certificateholder of this Trust Certificate by virtue of its acceptance hereof assents and by which such Certificateholder is bound. The property of the Trust consists of retail installment sale contracts for new and used automobiles and light-duty trucks transferred to the Trust on the Closing Date (the “Receivables”), all monies received after the Cutoff Date; any proceeds with respect to the Receivables from claims on any physical damage, credit life or disability, theft, mechanical breakdown or “guaranteed auto protection” insurance policies relating to Financed Vehicles or Obligors; any Financed Vehicle that shall have secured a Receivable and shall have been acquired by or on behalf of the Depositor, the Servicer, or the Trust; the Receivables Purchase Agreement; the Sale and Servicing Agreement, including the right of the Depositor to cause World Omni to purchase Receivables under certain circumstances; the Trust Accounts; and certain other rights under the Trust Agreement and Sale and Servicing Agreement and all proceeds of the foregoing (but excluding the Notes and Trust Certificates). The rights of the Certificateholders are subordinated to the rights of the Noteholders, as and to the extent set forth in the Sale and Servicing Agreement and the Indenture.
Under the Trust Agreement, there will be distributed on the 15th of each month of each year or, if such day is not a Business Day, the immediately following Business Day (each, a “Payment Date”), commencing on May 15, 2017, to the Person in whose name this Trust Certificate is registered at the close of business on the Business Day immediately preceding such Payment Date (the “Record Date”), such Certificateholder’s fractional undivided interest in the amount to be distributed to Certificateholders on such Payment Date. No distributions will be made on any Certificate on any Payment Date until the full amount of interest and principal payable on the Notes on such Payment Date has been paid in full and the Reserve Account has been replenished to its required amount, if necessary.
The Certificateholder of this Trust Certificate acknowledges and agrees that its rights to receive distributions in respect of this Trust Certificate are subordinated to the rights of the Noteholders as described in the Sale and Servicing Agreement and the Indenture.
It is the intention of the Depositor, the Servicer and the Certificateholders that, solely for Federal, state and local income and franchise tax purposes, (a) so long as the Trust has only one Certificateholder, the Trust will be disregarded as a separate entity and (b) at such time as the Trust has more than one Certificateholder, the Trust will be treated as a partnership. Neither the Servicer nor the Depositor or any Certificateholder will take any action to the contrary.
Ex. A-5
Each Certificateholder, by its acceptance of a Trust Certificate, covenants and agrees that such Certificateholder will not at any time institute against the Depositor, or join in any institution against the Depositor of, any involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Trust Certificates, the Notes, the Trust Agreement or any of the Basic Documents.
Distributions on this Trust Certificate will be made as provided in the Trust Agreement by the Paying Agent by wire transfer or check mailed to the Certificateholder without the presentation or surrender of this Trust Certificate or the making of any notation hereon. Except as otherwise provided in the Trust Agreement and notwithstanding the above, the final distribution on this Trust Certificate will be made after due notice by the Owner Trustee or Paying Agent of the pendency of such distribution and only upon presentation and surrender of this Trust Certificate at the office or agency maintained for that purpose by the Owner Trustee.
Reference is hereby made to the further provisions of this Trust Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed by an Authorized Officer of the Owner Trustee, by manual signature, this Trust Certificate shall not entitle the Certificateholder hereof to any benefit under the Trust Agreement or the Sale and Servicing Agreement or be valid for any purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Ex. A-6
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its individual capacity, has caused this Trust Certificate to be duly executed.
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A | |||
By: | WELLS FARGO DELAWARE TRUST COMPANY, N.A., not in its individual capacity but solely as Owner Trustee | ||
Dated: _________________ | By: | ||
Name: | |||
Title: |
Ex. A-7
[REVERSE OF TRUST CERTIFICATE]
The Trust Certificates do not represent an obligation of, or an interest in, the Depositor, the Servicer, the Owner Trustee, or any affiliates of any of them and no recourse may be had against such parties or their assets, except as expressly set forth or contemplated herein or in the Trust Agreement or the Basic Documents. In addition, this Trust Certificate is not guaranteed by any governmental agency or instrumentality and is limited in right of payment to certain collections and recoveries with respect to the Receivables (and certain other amounts), all as more specifically set forth herein and in the Sale and Servicing Agreement. A copy of each of the Sale and Servicing Agreement and the Trust Agreement may be examined by any Certificateholder upon written request during normal business hours at the principal office of the Depositor and at such other places, if any, designated by the Depositor.
The Trust Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor and the rights of the Certificateholders under the Trust Agreement at any time by the Depositor and the Owner Trustee with the consent of the Certificateholders of at least a majority Percentage Interest in the Trust Certificates and holders of at least a majority of the Outstanding Amount of the Controlling Securities. Any such consent by the Certificateholder of this Trust Certificate shall be conclusive and binding on such Certificateholder and on all future Certificateholders of this Trust Certificate and of any Trust Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent is made upon this Trust Certificate. The Trust Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Certificateholders of any of the Trust Certificates.
As provided in the Trust Agreement and subject to certain limitations therein set forth, the transfer of this Trust Certificate is registerable in the Certificate Register upon surrender of this Trust Certificate for registration of transfer at the offices or agencies of the Certificate Registrar maintained by the Indenture Trustee, accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by the Certificateholder hereof or such Certificateholder’s attorney duly authorized in writing, and thereupon one or more new Trust Certificates of authorized denominations evidencing the same aggregate interest in the Trust will be issued to the designated transferee. The initial Certificate Registrar appointed under the Trust Agreement is U.S. Bank National Association.
Except as provided in the Trust Agreement, the Trust Certificates shall be issued in a 100% Percentage Interest. As provided in the Trust Agreement and subject to certain limitations therein set forth, Trust Certificates are exchangeable for new Trust Certificates of authorized denominations evidencing the same aggregate denomination, as requested by the Certificateholder surrendering the same. No service charge will be made for any such registration of transfer or exchange, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner Trustee or the Certificate Registrar may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Owner Trustee, the Certificate Registrar or any such agent shall be affected by any notice to the contrary.
Ex. A-8
The obligations and responsibilities created by the Trust Agreement and the Trust created thereby shall terminate upon the payment to Certificateholders of all amounts required to be paid to them pursuant to the Trust Agreement and the Sale and Servicing Agreement and the disposition of all property held as part of the Owner Trust Estate. The Servicer may at its option purchase the Owner Trust Estate at a price specified in the Sale and Servicing Agreement, and such purchase of the Receivables and other property of the Trust will effect early retirement of the Notes and the Trust Certificates; however, such right of purchase is exercisable only as of the last day of any Collection Period as of which the Pool Balance is 10% or less of the Aggregate Starting Principal Balance of all Receivables transferred to the Trust.
Ex. A-9
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Trust Certificate, and all rights thereunder, and hereby irrevocably constitutes and appoints ________________________, attorney, to transfer said Trust Certificate on the books of the Certificate Registrar, with full power of substitution in the premises.
Dated:
________________________________________*/ | |
Signature Guaranteed: | |
____________________________*/ |
*/ NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Trust Certificate in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company.
Ex. A-10
EXHIBIT B
CERTIFICATE OF TRUST OF
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A
THIS Certificate of Trust of WORLD OMNI AUTO RECEIVABLES TRUST 2017-A (the “Trust”), is being duly executed and filed by the undersigned, not in its individual capacity but solely as trustee, to form a statutory trust under the Delaware Statutory Trust Act (12 Del. C. § 3801 et seq.) (the “Act”).
1. Name. The name of the statutory trust formed hereby is World Omni Auto Receivables Trust 2017-A.
2. Delaware Trustee. The name and business address of the trustee of the Trust in the State of Delaware are Wells Fargo Delaware Trust Company, N.A., 919 N. Market Street, Suite 1600, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon filing.
* * * * *
Ex. B-1
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust, has executed this Certificate of Trust in accordance with Section 3811(a) of the Act.
WELLS FARGO DELAWARE TRUST COMPANY, N.A., not in its individual capacity but solely as Owner Trustee | ||
By: | ||
Name: | ||
Title: |
Ex. B-2
EXHIBIT C
FORM OF TRANSFEROR CERTIFICATE
[DATE]
World Omni Auto Receivables LLC
190 Jim Moran Boulevard
Deerfield Beach, FL 33442
Wells Fargo Delaware Trust Company, N.A.
as Owner Trustee of World Omni Auto Receivables Trust 2017-A
919 N. Market St.
Suite 1600, 7th Floor
Wilmington, Delaware 19801
Attn: Corporate Trust Services
U.S. Bank National Association
190 South LaSalle Street, 7th floor
Chicago, Illinois 60603
Attention: Corporate Trust Services, WOART 2017-A
Re: | World Omni Auto Receivables Trust 2017-A Trust Certificates |
Ladies and Gentlemen:
In connection with our disposition of the above-referenced Trust Certificates (the “Certificates”) we certify that (a) we understand that the Certificates have not been registered under the Securities Act of 1933, as amended (the “Act”), and are being transferred by us in a transaction that is exempt from the registration requirements of the Act and (b) we have not offered or sold any Certificates to, or solicited offers to buy any Certificates from, any person, or otherwise approached or negotiated with any person with respect thereto, in a manner that would be deemed, or taken any other action which would result in, a violation of Section 5 of the Act.
Very truly yours, | ||
[NAME OF TRANSFEROR] | ||
By: | ||
Authorized Officer |
Ex. C
EXHIBIT D
FORM OF INVESTMENT LETTER
World Omni Auto Receivables LLC
190 Jim Moran Boulevard
Deerfield Beach, FL 33442
Wells Fargo Delaware Trust Company, N.A.
as Owner Trustee of World Omni Auto Receivables Trust 2017-A
919 N. Market St.
Suite 1600, 7th Floor
Wilmington, Delaware 19801
Attn: Corporate Trust Services
U.S. Bank National Association
190 South LaSalle Street, 7th floor
Chicago, Illinois 60603
Attention: Corporate Trust Services, WOART 2017-A
Ladies and Gentlemen:
In connection with our proposed purchase of Trust Certificates (the “Certificates”) of World Omni Auto Receivables Trust 2017-A (the “Issuing Entity”), we confirm that:
1. We understand that the Certificates have not been registered under the Securities Act of 1933, as amended (the “1933 Act”), and may not be sold except as permitted in the following sentence. We understand and agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, (x) that such Certificates are being offered only in a transaction not involving any public offering within the meaning of the 1933 Act and (y) that such Certificates may be resold, pledged or transferred only (i) to the Depositor, (ii) to an “accredited investor” as defined in Rule 501(a)(1),(2),(3) or (7) of Regulation D under the 1933 Act (an “Accredited Investor”) acting for its own account (and not for the account of others) or as a fiduciary or agent for others (which others also are Accredited Investors unless the holder is a bank acting in its fiduciary capacity) that executes a certificate substantially in the form hereof, (iii) so long as such Certificate is eligible for resale pursuant to Rule 144A under the 1933 Act (“Rule 144A”), to a person whom we reasonably believe after due inquiry is a “qualified institutional buyer” as defined in Rule 144A, acting for its own account (and not for the account of others) or as a fiduciary or agent for others (which others also are “qualified institutional buyers”) to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A or (iv) in a sale, pledge or other transfer made in a transaction otherwise exempt from the registration requirements of the 1933 Act, in which case the Owner Trustee shall require that both the prospective transferor and the prospective transferee certify to the Owner Trustee and the Depositor in writing the facts surrounding such transfer, which certification shall be in form and substance satisfactory to the Owner Trustee and the Depositor. Except in the case of a transfer described in clauses (i) or (iii) above, the Owner Trustee shall require that a written opinion of counsel (which will not be at the expense of the Depositor, any affiliate of the Depositor or the Owner Trustee) satisfactory to the Depositor and the Owner Trustee be delivered to the Depositor and the Owner Trustee to the effect that such transfer will not violate the 1933 Act, and will be effected in accordance with any applicable securities laws of each state of the United States. We will notify any purchaser of the Certificates from us of the above resale restrictions, if then applicable. We further understand that in connection with any transfer of the Certificates by us that the Depositor and the Owner Trustee may request, and if so requested we will furnish, such certificates and other information as they may reasonably require to confirm that any such transfer complies with the foregoing restrictions.
Ex. D-1
2. [CHECK ONE]
¨ | (a)We are an Accredited Investor acting for our own account (and not for the account of others) or as a fiduciary or agent for others (which others also are Accredited Investors unless we are a bank acting in its fiduciary capacity). We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Certificates, and we and any accounts for which we are acting are each able to bear the economic risk of our or their investment for an indefinite period of time. We are acquiring the Certificates for investment and not with a view to, or for offer and sale in connection with, a public distribution. |
¨ | (b)We are a “qualified institutional buyer” as defined under Rule 144A under the 1933 Act and are acquiring the Certificates for our own account (and not for the account of others) or as a fiduciary or agent for others (which others also are “qualified institutional buyers”). We are familiar with Rule 144A under the 1933 Act and are aware that the seller of the Certificates and other parties intend to rely on the statements made herein and the exemption from the registration requirements of the 1933 Act provided by Rule 144A. |
3. We are not and are not acting on behalf of (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), (iii) any entity whose underlying assets include plan assets by reason of a plan’s investment in the entity or (iv) any plan that is subject to any federal, state or local law that is, to a material extent, similar to the foregoing provisions of ERISA or the Code (“Similar Law”). We hereby acknowledge that no transfer of any Certificate shall be permitted to be made to any person unless the Trustee has received (i) a certificate from such transferee to the effect of the preceding sentence or (ii) an opinion of counsel satisfactory to the Owner Trustee, the Certificate Registrar and the Depositor to the effect that the purchase and holding of any such Certificate by such person (A) will not result in the assets of the Issuing Entity being deemed to be “plan assets” and subject to the prohibited transaction provisions of ERISA, Section 4975 of the Code or Similar Law and will not subject the Certificate Registrar, the Owner Trustee, the Indenture Trustee, the Servicer or the Depositor to any obligation in addition to those undertaken in the Basic Documents with respect to the Certificates and (B) will not constitute or result in a prohibited transaction under ERISA, Section 4975 of the Code or Similar Law.
Ex. D-2
4. We are a United States Person (within the meaning of Section 7701(a)(30) of the Internal Revenue Code), and acknowledge that unless the Owner Trustee and the Indenture Trustee shall have received an opinion of counsel (which counsel is independent from the Depositor and the Trust) that such action shall not cause the Trust to be treated as an association (or publicly traded partnership) taxable as a corporation for federal income tax purposes, no purchase of any Certificate shall be permitted to be made to any Person who is not a United States Person and any such purported purchase or transfer in violation of these restrictions shall be null and void.
5. We understand that the Depositor, the Trust and others will rely upon the truth and accuracy of the foregoing acknowledgments, representations and agreements, and we agree that if any of the acknowledgments, representations and warranties deemed to have been made by us by our purchase of the Certificates, for our own account or for one or more accounts as to each of which we exercise sole investment discretion, are no longer accurate, we shall promptly notify the Depositor.
6. You are entitled to rely upon this letter and you are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours, | |||
[NAME OF PURCHASER] | |||
By: | |||
Name: | |||
Title: | |||
Date: |
Ex. D-3
EXHIBIT E
FORM OF RECEIVABLES
Documents on file at:
Kirkland & Ellis LLP
300 North LaSalle Street
Chicago, IL 60654
Ex. E
Exhibit 99.1
RECEIVABLES PURCHASE AGREEMENT
by and between
WORLD OMNI FINANCIAL CORP.
and
WORLD OMNI AUTO RECEIVABLES LLC
Dated as of April 19, 2017
TABLE OF CONTENTS
Page No. | ||
ARTICLE I Certain Definitions | 1 | |
SECTION 1.01 | Definitions | 1 |
ARTICLE II Conveyance of Receivables | 2 | |
SECTION 2.01 | Conveyance of Receivables | 2 |
SECTION 2.02 | Purchase Price | 2 |
SECTION 2.03 | Intention of Parties | 3 |
SECTION 2.04 | The Closing | 3 |
ARTICLE III Representations and Warranties | 3 | |
SECTION 3.01 | Representations and Warranties of WOAR | 3 |
SECTION 3.02 | Representations and Warranties of World Omni | 4 |
ARTICLE IV Conditions | 5 | |
SECTION 4.01 | Conditions to Obligation of WOAR | 5 |
SECTION 4.02 | Conditions to Obligation of World Omni | 6 |
ARTICLE V Covenants of World Omni | 7 | |
SECTION 5.01 | Protection of Right, Title and Interest | 7 |
SECTION 5.02 | Other Liens or Interests | 7 |
SECTION 5.03 | Indemnification | 8 |
SECTION 5.04 | Access to Records | 8 |
SECTION 5.05 | Credit Risk Retention | 8 |
ARTICLE VI Miscellaneous Provisions | 8 | |
SECTION 6.01 | Obligations of World Omni | 8 |
SECTION 6.02 | Repurchase Events; Dispute Resolution | 9 |
SECTION 6.03 | WOAR Assignment of Repurchased Receivables | 9 |
SECTION 6.04 | The Trust | 9 |
SECTION 6.05 | Amendment | 9 |
SECTION 6.06 | Accountants’ Letters | 10 |
SECTION 6.07 | Waivers | 10 |
SECTION 6.08 | Notices | 10 |
SECTION 6.09 | Costs and Expenses | 11 |
SECTION 6.10 | Representations of World Omni and WOAR | 11 |
SECTION 6.11 | Confidential Information | 11 |
SECTION 6.12 | Headings and Cross-references | 11 |
SECTION 6.13 | GOVERNING LAW | 11 |
SECTION 6.14 | Counterparts | 11 |
i
EXHIBIT A | Form of RPA Assignment |
SCHEDULE I | Schedule of Receivables |
ii
RECEIVABLES PURCHASE AGREEMENT
This RECEIVABLES PURCHASE AGREEMENT dated as of April 19, 2017, is between World Omni Financial Corp., a Florida corporation (“World Omni”), and World Omni Auto Receivables LLC, a Delaware limited liability company (“WOAR”).
WHEREAS, in the regular course of its business, World Omni has originated and purchased from motor vehicle dealers certain motor vehicle retail installment sale contracts secured by new and used automobiles and light-duty trucks;
WHEREAS, WOAR wishes to purchase on the date hereof certain Receivables and to transfer such Receivables to World Omni Auto Receivables Trust 2017-A (the “Trust”), which will issue and transfer to WOAR the $225,000,000 Class A-1 1.10000% Asset-Backed Notes, Series 2017-A (the “Class A-1 Notes”), $346,500,000 Class A-2a 1.50% Asset-Backed Notes, Series 2017-A (the “Class A-2a Notes”), $129,500,000 Class A-2b One-Month LIBOR plus 0.14% Asset-Backed Notes, Series 2017-A (the “Class A-2b Notes” and, together with the Class A-2a Notes, the “Class A-2 Notes”), the $426,000,000 Class A-3 1.93% Asset-Backed Notes, Series 2017-A (the “Class A-3 Notes”), the $94,750,000 Class A-4 2.24% Asset-Backed Notes, Series 2017-A (the “Class A-4 Notes”), and the $34,700,000 Class B 2.38% Asset-Backed Notes, Series 2017-A (the “Class B Notes” and, together with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, the “Notes”), with the interest and principal payments on the Notes to be secured by the Receivables, and issue and transfer to WOAR the Certificates representing fractional undivided interests in the property of the Trust including the Receivables, subject to the rights of the Indenture Trustee on behalf of the Noteholders;
WHEREAS, World Omni has agreed to make certain representations and warranties relating to the Receivables and to pay certain expenses and amounts with respect hereto; and
WHEREAS, World Omni and WOAR wish to set forth the terms pursuant to which World Omni will sell the Receivables to WOAR.
NOW, THEREFORE, in consideration of the foregoing, other good and valuable consideration and the mutual terms and covenants contained herein, the parties hereto agree as follows:
ARTICLE I
Certain Definitions
SECTION 1.01 Definitions. Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings assigned them in Part I of Appendix A to the Sale and Servicing Agreement of even date herewith by and among the Trust, WOAR and World Omni, as Servicer, as it may be amended, supplemented or modified from time to time. All references herein to “the Agreement” or “this Agreement” are to this Receivables Purchase 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 such 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 such Appendix A shall be applicable to this Agreement.
ARTICLE II
Conveyance of Receivables
SECTION 2.01 Conveyance of Receivables. In consideration of WOAR’s delivery to or upon the order of World Omni of the Purchase Price (as defined in Section 2.02(a) below), World Omni does hereby sell, transfer, assign, set over and otherwise convey to WOAR, without recourse (subject to the obligations of World Omni herein), on the Closing Date (the “Purchase Date”) pursuant to a written assignment substantially in the form of Exhibit A (the “RPA Assignment”), all right, title and interest of World Omni, whether now owned or hereafter acquired, and wherever located, in and to the following (but none of the obligations of World Omni with respect to):
(a) the Receivables identified in the Schedule of Receivables to the RPA Assignment (all of which are identified in World Omni’s computer files by a code indicating the Receivables are owned by the Trust and pledged to the Indenture Trustee) and all monies received thereon after the Cutoff Date;
(b) the security interests in, and the liens on, the Financed Vehicles granted by Obligors in connection with the Receivables identified in the RPA Assignment and any other interest of World Omni in the Financed Vehicles;
(c) any proceeds with respect to the Receivables identified in the RPA Assignment from claims on any physical damage, credit life or disability insurance policies covering the Financed Vehicles or Obligors;
(d) any Financed Vehicle that shall have secured a Receivable identified in the RPA Assignment and shall have been acquired by or on behalf of World Omni, WOAR, or, upon the assignment contemplated by the Sale and Servicing Agreement, the Servicer or the Trust;
(e) all “accounts,” “chattel paper,” “general intangibles” and “promissory notes” (as such terms are defined in the Uniform Commercial Code as from time to time in effect) constituting or relating to the foregoing; and
(f) the proceeds of any and all of the foregoing; provided, however, that the foregoing items (a) through (f) shall not include the Purchase Price.
SECTION 2.02 Purchase Price. In consideration for the purchase of the Receivables and related assets pursuant to Section 2.01 hereof, WOAR shall pay to World Omni on the Closing Date an amount equal to the aggregate Starting Principal Balances for such Receivables (with respect to such Receivables, the “Purchase Price”) and World Omni shall execute and deliver to WOAR the RPA Assignment with respect to such Receivables and related assets. On the Closing Date, a portion of such Purchase Price payable on such date equal to approximately $1,250,598,980.34 shall be paid to World Omni in immediately available funds and the balance of the Purchase Price ($120,861,847.33) shall be recorded as a capital contribution to WOAR from World Omni.
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SECTION 2.03 Intention of Parties. It is the intention of World Omni and WOAR that the assignment and transfer contemplated herein and by the RPA Assignment shall constitute (and shall be construed and treated for all purposes, other than for tax purposes, as) a true and complete sale of the Receivables identified in the RPA Assignment and other property specified in Section 2.01 hereof, conveying good title thereto free and clear of any liens and encumbrances, from World Omni to WOAR. However, in the event that such conveyance is deemed to be a pledge to secure a loan (in spite of the express intent of the parties hereto that such conveyance constitutes, and shall be construed and treated for all purposes, other than for tax purposes, as a true and complete sale), World Omni hereby grants to WOAR a first priority perfected security interest in all of World Omni’s right, title and interest in, to and under the Receivables identified in the RPA Assignment and other property specified in Section 2.01 hereof whether now existing or hereafter created to secure the loan deemed to be made in connection with such pledge and, in such event, this Agreement shall constitute a security agreement under applicable law.
SECTION 2.04 The Closing. The sale and purchase of the Receivables shall take place at a closing at a place, on a date and at a time mutually agreeable to World Omni and WOAR and may occur simultaneously with the closing of any related transactions contemplated by (a) the Sale and Servicing Agreement and (b) the Indenture.
ARTICLE III
Representations and Warranties
SECTION 3.01 Representations and Warranties of WOAR. WOAR hereby represents and warrants to World Omni as of the Purchase Date:
(a) Organization and Good Standing. WOAR has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Delaware, with the power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and has, the power, authority and legal right to acquire and own the Receivables.
(b) Due Qualification. WOAR is duly qualified to do business as a foreign limited liability company in good standing, and has obtained all necessary material licenses and approvals, in all jurisdictions in which the ownership or lease of its property or the conduct of its business shall require such qualifications, except where the failure to be so qualified or to have obtained such licenses or approvals would not have a material adverse effect on WOAR’s earnings, business affairs or business prospects.
(c) Power and Authority. WOAR has the requisite power and authority to execute and deliver this Agreement and to carry out its terms, and the execution, delivery and performance of this Agreement have been duly authorized by WOAR by all necessary action.
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(d) No Violation. The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof do not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the limited liability company agreement of WOAR; (ii) breach, conflict with or violate any of the material terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, agreement or other instrument to which WOAR is a party or by which it is bound; (iii) result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than the Sale and Servicing Agreement, the Indenture and the Trust Agreement); or (iv), to the best of WOAR’s knowledge, violate any order, rule or regulation applicable to WOAR of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over WOAR or its properties except, in the case of clauses (ii), (iii) and (iv), for such breaches, defaults, conflicts, liens or violations that would not have a material adverse effect on WOAR’s earnings, business affairs or business prospects.
(e) No Proceedings. To the best of WOAR’s knowledge, there are no proceedings or investigations pending or threatened, before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over WOAR or its properties: (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, (iii) seeking any determination or ruling that could reasonably be expected to materially and adversely affect the performance by WOAR of its obligations under, or the validity or enforceability of, this Agreement or (iv) which could reasonably be expected to adversely affect the federal or state income tax attributes of the Notes or the Certificates.
SECTION 3.02 Representations and Warranties of World Omni. (a) World Omni hereby represents and warrants to WOAR as of the Purchase Date:
(i) Organization and Good Standing. World Omni has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Florida, with the power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and has, the power, authority and legal right to acquire and own the Receivables.
(ii) Due Qualification. World Omni is duly qualified to do business as a foreign corporation in good standing, and has obtained all necessary material licenses and approvals, in all jurisdictions in which the ownership or lease of its property or the conduct of its business shall require such qualifications, except where the failure to be so qualified or to have obtained such licenses or approvals would not have a material adverse effect on World Omni’s earnings, business affairs or business prospects.
(iii) Power and Authority. World Omni has the corporate power and authority to execute and deliver this Agreement and to carry out its terms; and the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action.
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(iv) No Violation. The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof do not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the articles of incorporation or bylaws of World Omni, (ii) breach, conflict with or violate any of the material terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, agreement or other instrument to which World Omni is a party or by which it is bound; (iii) result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than this Agreement); or (iv), to the best of World Omni’s knowledge, violate any order, rule or regulation applicable to World Omni of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over World Omni or its properties except, in the case of clauses (ii), (iii) and (iv), for such breaches, defaults, conflicts, liens or violations that would not have a material adverse effect on World Omni’s earnings, business affairs or business prospects.
(v) No Proceedings. To World Omni’s best knowledge, there are no proceedings or investigations pending or threatened before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over World Omni or its properties: (A) asserting the invalidity of this Agreement, (B) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, (C) seeking any determination or ruling that could reasonably be expected to materially and adversely affect the performance by World Omni of its obligations under or the validity or enforceability of, this Agreement or (D) relating to World Omni and which could reasonably be expected to adversely affect the federal or state income tax attributes of the Notes or the Certificates.
(b) World Omni agrees that the representations and warranties in this Section 3.02 shall be conveyed by WOAR to the Issuing Entity under the Sale and Servicing Agreement, and pledged by the Issuing Entity to the Indenture Trustee under the Indenture. World Omni further agrees that any such Person to whom such rights are conveyed may enforce any and all remedies for the breach thereof directly against World Omni. World Omni agrees that WOAR may rely on such representations and warranties in accepting the Receivables.
ARTICLE IV
Conditions
SECTION 4.01 Conditions to Obligation of WOAR. The obligation of WOAR to purchase the Receivables on the Purchase Date is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and warranties of World Omni hereunder shall be true and correct in all material respects on the Purchase Date, and World Omni shall have performed in all material respects all obligations to be performed by it hereunder on or prior to the Purchase Date.
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(b) Documents To Be Delivered by World Omni.
(i) The Assignment. On or prior to the Purchase Date, World Omni will execute and deliver the RPA Assignment.
(ii) Evidence of UCC Filing. On or prior to the tenth day following the Purchase Date, World Omni shall record and file, at its own expense, a UCC-1 financing statement in each jurisdiction required by applicable law, naming World Omni as depositor or debtor, and naming WOAR as purchaser or secured party, describing the Receivables and the other property conveyed hereby, meeting the requirements of the laws of each such jurisdiction and in such manner as is necessary to perfect the sale, transfer, assignment and conveyance of such Receivables to WOAR. World Omni shall deliver a file-stamped copy or other evidence satisfactory to WOAR of such filing to WOAR on or prior to the tenth day following the Purchase Date.
(iii) Schedule of Receivables. On or prior to the Purchase Date, World Omni shall deliver the Schedule of Receivables.
(iv) Other Documents. World Omni shall deliver such other documents as WOAR may reasonably request.
(c) Sale and Servicing Agreement. As a condition to the sale hereunder, World Omni agrees to make the representations and warranties to WOAR in respect of the Receivables and the pool of Receivables set forth in Sections 3.01(a) and (b) of the Sale and Servicing Agreement, and in that connection agrees to execute the Sale and Servicing Agreement. World Omni agrees that WOAR may rely on such representations and warranties in accepting the Receivables.
(d) Other Transactions. The transactions contemplated by the Sale and Servicing Agreement, the Indenture and the Trust Agreement to be consummated on or prior to the Purchase Date shall be consummated on such date.
SECTION 4.02 Conditions to Obligation of World Omni. The obligation of World Omni to sell the Receivables to WOAR on the Purchase Date is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and warranties of WOAR hereunder shall be true and correct in all material respects as of the Purchase Date, and WOAR shall have performed in all material respects all obligations to be performed by it hereunder on or prior to the Purchase Date.
(b) Receivables Purchase Price. On the Purchase Date, WOAR shall have delivered to World Omni the Purchase Price to the extent provided in Section 2.02.
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ARTICLE V
Covenants of World Omni
World Omni agrees with WOAR as follows:
SECTION 5.01 Protection of Right, Title and Interest.
(a) Filings. World Omni shall cause all financing statements and continuation statements and any other necessary documents perfecting the right, title and interest of World Omni and WOAR, respectively, in and to the Receivables and the other property conveyed hereby to be promptly filed and at all times to be kept recorded, registered and filed, all in such manner and in such places as may be required by law fully to preserve and protect the right, title and interest of WOAR hereunder in and to the Receivables and the other property conveyed hereby. World Omni hereby authorizes the filing of such financing statements and ratifies any such financing statements filed prior to the date hereof. World Omni shall deliver to WOAR file stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing.
(b) Name Change. World Omni shall not change its name, identity or corporate structure in any manner that could reasonably be expected to make any financing statement or continuation statement filed in accordance with paragraph (a) above seriously misleading within the meaning of Section 9-506 of the UCC, unless it shall have given WOAR at least five days’ prior written notice thereof and shall have promptly filed appropriate amendments to all previously filed financing statements or continuation statements.
(c) Relocation. World Omni shall give WOAR at least 60 days’ prior written notice of any relocation of its principal executive office or jurisdiction of formation if, as a result of such relocation, the applicable provisions of the UCC would require the filing of any amendment of any previously filed financing or continuation statement or of any new financing statement and shall promptly file any such amendment or new financing statement.
(d) Notice. If at any time World Omni shall propose to sell, grant a security interest in, or otherwise transfer any interest in any Contract to any prospective purchaser, lender or other transferee, World Omni shall give to such prospective purchaser, lender or other transferee computer tapes, records or printouts (including any restored from backup archives) that, if they shall refer in any manner whatsoever to any Receivable, shall indicate clearly that such Receivable has been sold to and is owned by WOAR.
SECTION 5.02 Other Liens or Interests. Except for the conveyances hereunder and under the Sale and Servicing Agreement, the Indenture, the Trust Agreement and the other Basic Documents, World Omni will not sell, pledge, assign or transfer to any Person, or grant, create, incur, assume or suffer to exist any Lien on, or any interest in, to or under the Receivables except for Liens that will be released contemporaneously with the transfer of the Receivables from World Omni to WOAR, and World Omni shall defend the right, title and interest of WOAR in, to and under the Receivables against all claims of third parties claiming through or under World Omni; provided, however, that World Omni’s obligations under this Section shall terminate upon the termination of the Trust pursuant to the Trust Agreement.
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SECTION 5.03 Indemnification. World Omni shall indemnify WOAR for any liability resulting from (i) the failure of a Receivable to be originated in compliance in all material respects with all requirements of applicable federal, state and local laws and regulations thereunder, including usury laws, the federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade Commission Act, the Magnuson-Moss Warranty Act, the Federal Reserve Board’s Regulations B and Z, and State adaptations of the National Consumer Act and of the Uniform Consumer Credit Code, and other consumer credit laws and equal credit opportunity and disclosure laws and (ii) any breach of any of its representations and warranties contained herein and any failure by World Omni to comply with its obligations under Sections 5.01 and 5.02 hereof, provided that World Omni’s repurchase obligation as set forth in Section 3.02(b) of the Sale and Servicing Agreement for a breach of representations and warranties set forth in Section 3.01(a) thereof is the sole remedy therefor, except with respect to matters set forth in (i) above. These indemnity obligations shall be in addition to any obligation that World Omni may otherwise have.
SECTION 5.04 Access to Records. World Omni shall provide to the Asset Representations Reviewer access to its records and documents related to the Receivables if the Asset Representations Reviewer is required to conduct a Review. Such access shall be afforded without charge, but only upon reasonable request and during the normal business hours at the offices of World Omni. Nothing in this Section 5.04 shall affect the obligation of World Omni to observe any applicable law prohibiting disclosure of information regarding the Obligors and the failure of World Omni to provide access to information as a result of such obligation shall not constitute a breach of this Section 5.04.
SECTION 5.05 Credit Risk Retention. World Omni shall comply in all material respects with all requirements imposed on the "sponsor" of the "securitization transaction" (as each such term is defined in the Credit Risk Retention Rules) described in the Basic Documents in accordance with the Credit Risk Retention Rules, including its requirements to (i) retain, either directly or through a “majority-owned affiliate” (as such term is defined in the Credit Risk Retention Rules) of World Omni, the "eligible horizontal residual interest" (as such term is defined in the Credit Risk Retention Rules) in such securitization transaction in accordance with the Credit Risk Retention Rules and shall not, and shall cause its affiliates to not, sell, transfer, finance, pledge or hedge such interest except as permitted under the Credit Risk Retention Rules and (ii) satisfy the disclosure requirements set forth in the Credit Risk Retention Rules without any involvement from the underwriters.
ARTICLE VI
Miscellaneous Provisions
SECTION 6.01 Obligations of World Omni. The obligations of World Omni under this Agreement shall not be affected by reason of any invalidity, illegality or irregularity of any Receivable.
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SECTION 6.02 Repurchase Events; Dispute Resolution.
(a) World Omni agrees to repurchase Receivables materially and adversely affected by a breach of the representations and warranties set forth in Section 3.01(a) of the Sale and Servicing Agreement, all in the manner set forth in Section 3.02(b) of such agreement (each, a “Repurchase Event”), and in that connection agrees to execute the Sale and Servicing Agreement. This repurchase obligation of World Omni shall constitute the sole remedy of WOAR, the Trust, the Indenture Trustee, the Noteholders, the Owner Trustee, the Certificateholders or any other Person against World Omni with respect to any Repurchase Event.
(b) World Omni agrees to cooperate with the Trust and the Requesting Party in any dispute resolution proceeding pursuant to, and be bound by the dispute resolution terms in, Section 3.02(c) of the Sale and Servicing Agreement as if they were part of this Agreement.
SECTION 6.03 WOAR Assignment of Repurchased Receivables. With respect to all Receivables repurchased by World Omni pursuant to this Agreement and the Sale and Servicing Agreement, WOAR shall assign, without recourse, representation or warranty, to World Omni all WOAR’s right, title and interest in and to such Receivables and all security and documents relating thereto.
SECTION 6.04 The Trust. World Omni acknowledges and agrees that (a) WOAR will, pursuant to the Sale and Servicing Agreement, sell the Receivables to the Trust and assign its rights under this Agreement to the Trust and (b) the Trust will, pursuant to the Indenture, grant the Receivables and its rights under this Agreement and the Sale and Servicing Agreement to the Indenture Trustee on behalf of the Noteholders. World Omni hereby consents to all such sales and assignments and agrees that the Trust or, if pursuant to the Indenture, the Indenture Trustee, may exercise the rights of WOAR and enforce the obligations of World Omni hereunder directly and without the consent of WOAR.
SECTION 6.05 Amendment.
(a) This Agreement may be amended from time to time, upon (i) satisfaction of the Rating Agency Condition or (ii) delivery by World Omni of an Officer’s Certificate to the Issuing Entity, the Owner Trustee and the Indenture Trustee stating such amendment will not materially and adversely affect the interest of any Noteholder or Certificateholder, by a written amendment duly executed and delivered by World Omni and WOAR, to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to add any other provision with respect to matters or questions arising under this Agreement which shall not be inconsistent with the provisions of this Agreement or the Sale and Servicing Agreement, the Trust Agreement or the Indenture or for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders or the Certificateholders in the Trust or Receivables.
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(b) This Agreement may also be amended by World Omni and WOAR, with the consent of the holders of Notes evidencing at least a majority of the Outstanding Amount of the Controlling Securities (unless (i) the interests of the Noteholders are not affected materially and adversely, as evidenced by an Officer’s Certificate of World Omni to that effect delivered to the Indenture Trustee by World Omni or (ii) satisfaction of the Rating Agency Condition) and the holders of Certificates evidencing at least a majority of the percentage interest of the Certificates (unless (i) the interests of the Certificateholders are not affected materially and adversely and (ii) an Officer’s Certificate of World Omni to that effect is delivered to the Owner Trustee by World Omni), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders or the Certificateholders in the Trust or Receivables; provided, however, that no such amendment may (i) increase or reduce in any manner the amount of, or accelerate or delay the timing of, collections of payments on the Receivables or distributions that are required to be made for the benefit of Noteholders or Certificateholders or (ii) reduce the aforesaid percentage of the Notes and Certificates that is required to consent to any such amendment, without the consent of the holders of all the outstanding Notes and Certificates affected thereby.
SECTION 6.06 Accountants’ Letters. World Omni will cooperate with WOAR and independent public accountants engaged by WOAR in making available all information and taking all steps reasonably necessary to permit such independent accountants to complete any review required to deliver any negative assurance or similar letter required to be delivered by it in connection with the Basic Documents.
SECTION 6.07 Waivers. No failure or delay on the part of WOAR, or any assignee of WOAR, in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other or further exercise thereof or the exercise of any other power, right or remedy.
SECTION 6.08 Notices. All demands, notices and communications under this Agreement shall be in writing, personally delivered or mailed by certified mail, return receipt requested, or recognized overnight courier or by facsimile confirmed by delivery or mail as described above, and shall be deemed to have been duly given upon receipt or by electronic mail (if designated by such party to the other parties) (a) in the case of World Omni, to World Omni Financial Corp., 190 Jim Moran Blvd., Deerfield Beach, Florida 33442, (954) 429-2685, Attention: Treasurer; (b) in the case of WOAR, to World Omni Auto Receivables LLC, 190 Jim Moran Blvd., Deerfield Beach, Florida 33442, (954) 429-2685, Attention: Treasurer; and (c) in the case of the Rating Agencies, to WOAR who promptly shall post such notice to the website maintained by WOAR for notifications to nationally recognized statistical ratings organizations; or, as to each of the foregoing, at such other address or electronic mail address as shall be designated by written notice to the other parties; provided, that, the obligations of World Omni and WOAR to deliver or provide any demand, delivery, notice, communication or instruction to any Person other than a Noteholder shall be satisfied by World Omni or WOAR, as the case may be, making such demand, delivery, notice, communication or instruction available at https://via.intralinks.com/, or such other website or distribution service or provider as World Omni or WOAR, as applicable, shall designate by written notice to the other parties.
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SECTION 6.09 Costs and Expenses. World Omni shall pay all expenses incident to the performance of its obligations under this Agreement and all reasonable and documented out-of-pocket costs and expenses of WOAR, excluding fees and expenses of counsel, in connection with the perfection as against third parties of WOAR’s right, title and interest in and to the Receivables and the enforcement of any obligation of World Omni hereunder.
SECTION 6.10 Representations of World Omni and WOAR. The respective agreements, representations, warranties and other statements by World Omni and WOAR set forth in or made pursuant to this Agreement or the RPA Assignment shall remain in full force and effect and will survive the sales and assignments referred to in Section 6.04.
SECTION 6.11 Confidential Information. WOAR agrees that it will neither use nor disclose to any Person the names and addresses of the Obligors, except in connection with the enforcement of WOAR’s rights hereunder, under the Receivables, under the Sale and Servicing Agreement, the Indenture, the Trust Agreement or any other Basic Document or as required by any of the foregoing or by law.
SECTION 6.12 Headings and Cross-references. The various headings in this Agreement are included for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement. References in this Agreement to Section names or numbers are to such Sections of this Agreement.
SECTION 6.13 GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER OR THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 6.14 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers duly authorized as of the date and year first above written.
WORLD OMNI FINANCIAL CORP. | ||
By: | /s/ Bryan Romano | |
Name: | Bryan Romano | |
Title: | Assistant Treasurer | |
WORLD OMNI AUTO RECEIVABLES LLC | ||
By: | /s/ Bryan Romano | |
Name: | Bryan Romano | |
Title: | Assistant Treasurer |
Exhibit A
FORM OF RPA ASSIGNMENT
As of April 19, 2017, for value received, in accordance with the Receivables Purchase Agreement dated as of the date hereof, between WORLD OMNI FINANCIAL CORP. (“World Omni”) and WORLD OMNI AUTO RECEIVABLES LLC (“WOAR”), World Omni does hereby sell, assign, transfer and otherwise convey unto WOAR, without recourse (subject to the obligations of World Omni in the Receivables Purchase Agreement), all right, title and interest of World Omni in and to (but none of the obligations of World Omni with respect to): (a) the Receivables identified on the Schedule of Receivables, attached hereto (all of which are identified in World Omni’s computer files by a code indicating the Receivables are owned by the Trust and pledged to the Indenture Trustee) and all monies received thereon after the Cutoff Date; (b) the security interests in, and the liens on, the Financed Vehicles granted by Obligors in connection with the Receivables and any other interest of World Omni in such Financed Vehicles; (c) any proceeds with respect to the Receivables from claims on any physical damage, credit life or disability insurance policies covering such Financed Vehicles or Obligors; (d) any Financed Vehicle that shall have secured a Receivable and shall have been acquired by or on behalf of World Omni, WOAR, or, upon the assignment contemplated by the Sale and Servicing Agreement, the Servicer or the Trust; (e) all “accounts,” “chattel paper,” “general intangibles” and “promissory notes” (as such terms are defined in the Uniform Commercial Code as from time to time in effect) constituting or relating to the foregoing; and (f) the proceeds of any and all of the foregoing; provided, however, that the foregoing items (a) through (f) shall not include the Purchase Price. The foregoing sale does not constitute and is not intended to result in any assumption by WOAR of any obligation of the undersigned to the obligors, insurers, dealers or any other person in connection with the Receivables, any insurance policies or any agreement or instrument relating to any of them.
This RPA Assignment is made pursuant to and upon the representations, warranties and agreements on the part of the undersigned contained in the Receivables Purchase Agreement.
Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Receivables Purchase Agreement.
Ex. A-1 |
IN WITNESS WHEREOF, the undersigned has caused this RPA Assignment to be duly executed as of the day and year first written above.
WORLD OMNI FINANCIAL CORP. | ||
By: | ||
Name: | ||
Title: |
Ex. A-2 |
SCHEDULE I
Schedule of Receivables
Documents on file at:
Kirkland & Ellis LLP
300 North LaSalle Street
Chicago, IL 60654
Sch. I
Exhibit 99.2
ADMINISTRATION AGREEMENT
among
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A
as Issuing Entity,
WORLD OMNI FINANCIAL CORP.,
as Administrator,
WORLD OMNI AUTO RECEIVABLES LLC,
as Depositor,
and
U.S. BANK NATIONAL ASSOCIATION
as Indenture Trustee
Dated as of April 19, 2017
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of April 19, 2017 (as amended from time to time, this “Agreement”), is among WORLD OMNI AUTO RECEIVABLES TRUST 2017-A, a Delaware statutory trust (the “Issuing Entity”), WORLD OMNI FINANCIAL CORP. (“World Omni” or in its capacity as administrator, the “Administrator”), WORLD OMNI AUTO RECEIVABLES LLC (the “Depositor”) and U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee (the “Indenture Trustee”).
WITNESSETH:
WHEREAS, the Issuing Entity is a statutory trust under the Delaware Statutory Trust Act created by a trust agreement dated as of March 13, 2017 (as amended and restated as of the date hereof, and as may be further amended, supplemented or otherwise modified and in effect from time to time, the “Trust Agreement”) between the Depositor, as Depositor, and Wells Fargo Delaware Trust Company, N.A., as Owner Trustee (together with its successors and assigns, not individually but solely in such capacity, the “Owner Trustee”).
WHEREAS, the Issuing Entity is issuing Class A-1 1.10000% Asset-Backed Notes, Class A-2a 1.50% Asset-Backed Notes, Class A-2b Floating Rate Asset-Backed Notes, Class A-3 1.93% Asset-Backed Notes, Class A-4 2.24% Asset-Backed Notes and Class B 2.38% Asset-Backed Notes (collectively, the “Notes”), pursuant to an Indenture, dated as of the date hereof (as amended, supplemented or otherwise modified and in effect from time to time, the “Indenture”), between the Issuing Entity and the Indenture Trustee (capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in, or incorporated by reference into, the Indenture);
WHEREAS, the Issuing Entity is issuing Certificates (the “Certificates”) pursuant to the Trust Agreement;
WHEREAS, the Issuing Entity has entered into certain agreements in connection with the issuance of the Notes including (i) the sale and servicing agreement, dated as of the date hereof (as amended, supplemented or otherwise modified and in effect from time to time, the “Sale and Servicing Agreement”), among the Issuing Entity, the Depositor and World Omni, as servicer (in such capacity, the “Servicer”), (ii) a Letter of Representations, dated as of the date hereof, by the Issuing Entity in favor of The Depository Trust Company relating to the Notes (as amended, supplemented or otherwise modified and in effect from time to time, the “Depository Agreement”), (iii) the Indenture, and (iv) the asset representations review agreement, dated as of the date hereof (as amended, supplemented or otherwise modified and in effect from time to time, the “Asset Representations Review Agreement”), among the Issuing Entity, Clayton Fixed Income Services LLC, as asset representations reviewer (in such capacity, the “Asset Representations Reviewer”) and the Servicer (the Sale and Servicing Agreement, the Depository Agreement, the Trust Agreement, the Indenture, and the Asset Representations Review Agreement shall be referred to hereinafter collectively as the “Related Agreements”);
WHEREAS, pursuant to the Related Agreements, the Issuing Entity and the Owner Trustee are required to perform certain duties in connection with (i) the Notes and the collateral therefor pledged pursuant to the Indenture (the “Collateral”) and (ii) the beneficial ownership interest in the Issuing Entity;
WHEREAS, the Issuing Entity and the Owner Trustee desire to have the Administrator perform certain of the duties of the Issuing Entity and the Owner Trustee referred to in the preceding clause and to provide such additional services consistent with the terms of this Agreement and the Related Agreements as the Issuing Entity and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services required hereby and is willing to perform such services for the Issuing Entity and the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Duties of the Administrator.
(a) Primary Duties of the Administrator.
(i) The Administrator agrees to perform all its duties as Administrator and the duties of the Issuing Entity and the Owner Trustee under the Related Agreements. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Owner Trustee when action is necessary to comply with the respective duties of the Issuing Entity and the Owner Trustee under the Related Agreements. The Administrator shall prepare for execution by the Issuing Entity, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuing Entity or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuing Entity or the Owner Trustee is required to take pursuant to the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (unless otherwise specified, references are to Sections of the Indenture):
(A) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(B) the preparation of or obtaining of the documents and instruments required for execution and authentication of temporary Notes and delivery of the same to the Indenture Trustee (Section 2.03);
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(C) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.05);
(D) the duty to cause the replacement of lost or mutilated Notes upon the request of the Issuing Entity (Section 2.06);
(E) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.08(d));
(F) the preparation, obtaining or filing of the instruments, opinions and certificates and other documents required for the release of Collateral (Section 2.10);
(G) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(H) the maintenance of an office in the City of St. Paul, Minnesota, for registration and transfer or exchange of Notes (Section 3.02);
(I) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.03);
(J) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.03);
(K) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes and the Collateral (Section 3.04);
(L) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Collateral (Section 3.05);
(M) the delivery of an Opinion of Counsel on the Closing Date and annual Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.06 and 3.09);
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(N) the identification in an Officer’s Certificate to the Indenture Trustee of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.07(b));
(O) the notification of the Indenture Trustee and each Rating Agency of a Servicer Default under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.07(d));
(P) the Issuing Entity’s duty to use all reasonable efforts to cause the Servicer to comply with Sections 4.09, 4.10, 4.11, 5.07(b) and Article IX of the Sale and Servicing Agreement (Section 3.14);
(Q) the delivery of written notice to the Indenture Trustee, Owner Trustee and each Rating Agency of each Event of Default under the Indenture and each default by the Servicer or the Depositor under the Sale and Servicing Agreement (Section 3.19);
(R) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.01);
(S) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.04);
(T) the preparation of any written instruments required to give effect to the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of the Indenture Trustee or any co-trustee or separate trustee to the Noteholders (Sections 6.08 and 6.10);
(U) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.01);
(V) receiving written notice from a Noteholder or Note Owner regarding possible exercise of its rights under the Basic Documents and delivering such notice to the Servicer for inclusion in a Form 10-D to be filed by the Servicer with the Commission (Section 7.02(e));
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(W) the preparation and, after execution by the Issuing Entity, the filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.03);
(X) the preparation and delivery of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.02 and 8.03);
(Y) the preparation of an Issuing Entity Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.04 and 8.05);
(Z) the preparation of Issuing Entity Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures, the mailing to the Noteholders and delivery to the Rating Agencies of notices with respect to such supplemental indentures (Sections 9.01, 9.02 and 9.03);
(AA) arranging for the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.06);
(BB) the duty to notify Noteholders and the Rating Agencies of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.02);
(CC) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.01(a));
(DD) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.01(b));
(EE) the notification of the Rating Agencies, upon the failure of the Issuing Entity or the Indenture Trustee to give such notification, of the information required pursuant to Section 11.04 of the Indenture (Section 11.04);
(FF) the preparation and delivery to the Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.06);
(GG) the recording of the Indenture, if applicable (Section 11.15); and
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(HH) under Section 3.02 of the Sale and Servicing Agreement, (1) providing notice of a breach of a representation or warranty made in Section 3.01(a) of the Sale and Servicing Agreement, (2) providing a Repurchase Request, and (3) referring any unresolved Repurchase Request for mediation or arbitration.
(ii) The Administrator will:
(A) pay the Indenture Trustee and any separate trustee or co-trustee appointed pursuant to Section 6.10 of the Indenture (a “Separate Trustee”) from time to time reasonable compensation for all services rendered by the Indenture Trustee or Separate Trustee, as the case may be, under the Indenture (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee or any Separate Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee or Separate Trustee, as the case may be, in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel; provided, that reimbursement for expenses and disbursements of any legal counsel to the Indenture Trustee and any Separate Trustee shall be subject to any limitations separately agreed upon before the date hereof between the Administrator and the Indenture Trustee and any Separate Trustee), except any such expense, disbursement or advance as shall be determined to have been caused by its own negligence, bad faith or willful misconduct;
(C) indemnify the Indenture Trustee and any Separate Trustee (including in their individual capacities) and their officers, directors, employees, successors, assigns, agents and servants (collectively, the “IT Indemnified Parties”) as primary obligor from and against, any and all liabilities, obligations, losses, costs, damages, taxes, claims, actions and suits, and any and all reasonable and documented costs, expenses and disbursements (including reasonable and documented legal fees and expenses including, without limitation, any legal fees, costs and expenses incurred in connection with any enforcement (including any action, claim or suit brought) by the Indenture Trustee or any other IT Indemnified Party of any indemnification or other obligation of the Administrator and other amounts owed to the Indenture Trustee pursuant to the Indenture) of any kind and nature whatsoever (collectively, “IT Expenses”) which may at any time be imposed on, incurred by, or asserted against any IT Indemnified Party in any way relating to or arising out of the Basic Documents or the action or inaction of any IT Indemnified Party, except only that the Administrator shall not be liable for or required to indemnify an IT Indemnified Party from and against IT Expenses arising or resulting from any of the matters described in the ninth sentence of Section 6.07 of the Indenture. The benefits under this section shall survive the resignation or termination of the Indenture Trustee or the termination of this Agreement. In any event of any claim, action or proceeding for which indemnity will be sought pursuant to this Section, the Indenture Trustee’s choice of legal counsel shall be subject to the approval of the Administrator, which approval shall not be unreasonably withheld or delayed;
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(D) pay the Owner Trustee compensation for services rendered by the Owner Trustee pursuant to Section 8.01 of the Trust Agreement and reimburse the Owner Trustee for its reasonable and documented expenses including the reasonable and documented compensation, expenses and disbursements of such agents, representatives, experts and counsel as the Owner Trustee may employ in connection with the exercise and performance of its rights and duties under the Trust Agreement; provided, that reimbursement for expenses and disbursements of any legal counsel to the Owner Trustee in connection with the Closing Date shall be subject to limitations, if any, separately agreed upon before the date hereof between the Depositor (or any Affiliate thereof) and the Owner Trustee; and
(E) indemnify the Owner Trustee (including in its individual capacity) and its officers, directors, employees, successors, assigns, agents and servants (collectively, the “OT Indemnified Parties”) as primary obligor from and against, any and all liabilities, obligations, losses, costs, damages, taxes, claims, actions and suits, and any and all reasonable and documented costs, expenses and disbursements (including reasonable and documented legal fees and expenses including, without limitation, any legal fees, costs and expenses incurred in connection with any enforcement (including any action, claim or suit brought) by the Owner Trustee or any other OT Indemnified Party of any indemnification or other obligation of the Administrator and other amounts owed to the Owner Trustee pursuant to the Trust Agreement) of any kind and nature whatsoever (collectively, “OT Expenses”) which may at any time be imposed on, incurred by, or asserted against any OT Indemnified Party in any way relating to or arising out of the Basic Documents, the Owner Trust Estate, the administration of the Owner Trust Estate or the action or inaction of any OT Indemnified Party, except only that the Administrator shall not be liable for or required to indemnify an OT Indemnified Party from and against OT Expenses arising or resulting from any of the matters described in the third sentence of Section 7.01 of the Trust Agreement. The indemnities contained in this Section shall survive the resignation or termination of the Owner Trustee, or the termination or assignment of this Agreement. In any event of any claim, action or proceeding for which indemnity will be sought pursuant to this Section, the Owner Trustee’s choice of legal counsel shall be subject to the approval of the Administrator, which approval shall not be unreasonably withheld or delayed; and
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(iii) The Administrator shall take all appropriate action that the Issuing Entity is required to take pursuant to the Asset Representations Review Agreement, including, without limitation, the foregoing:
(A) the duty to appoint a replacement Asset Representations Reviewer and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Review.
(b) Additional Duties of the Administrator.
(i) In addition to the duties set forth in Section 1(a)(i), the Administrator shall perform such calculations and shall prepare or shall cause the preparation by other appropriate persons of, and shall execute on behalf of the Issuing Entity or the Owner Trustee, all such notices, documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuing Entity or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements, and at the request of the Owner Trustee shall take all appropriate action that the Issuing Entity or the Owner Trustee is required to take pursuant to the Related Agreements. In furtherance thereof, the Owner Trustee shall on behalf of itself and of the Issuing Entity, execute and deliver to the Administrator and to each successor Administrator appointed pursuant to the terms hereof, one or more powers of attorney substantially in the form of Exhibit A hereto, appointing the Administrator the attorney-in-fact of the Owner Trustee and the Issuing Entity for the purpose of executing on behalf of the Owner Trustee and the Issuing Entity all such notices, documents, reports, filings, instruments, certificates and opinions. Subject to Section 5 of this Agreement, and in accordance with the directions of the Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Collateral (including the Related Agreements) as are not covered by any of the foregoing provisions and as are expressly requested by the Owner Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee set forth in Sections 5.05 and 5.06 of the Trust Agreement with respect to, among other things, accounting and reports to the Depositor.
(iii) The Administrator shall provide written notice to the Indenture Trustee upon notification to the Administrator that the Clearing Agency is no longer willing or able to properly discharge its responsibilities as described in the Depository Agreement. Upon the receipt of such notification from the Clearing Agency, the Administrator shall use reasonable efforts to locate and appoint a qualified successor Clearing Agency.
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(iv) The Administrator shall have the duties of the Administrator specified in Section 10.02 of the Trust Agreement required to be performed in connection with the resignation or removal of the Owner Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(v) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions or otherwise deal with any of its Affiliates; provided that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vi) To the extent a Repurchase Request received from a Noteholder or Note Owner has not been resolved, the alleged breach has not otherwise been cured or the related Receivable has not otherwise been repurchased, paid-off or otherwise satisfied, within 180 days of the receipt of notice of the Repurchase Request by World Omni, the Administrator shall direct the Indenture Trustee to notify such Requesting Party that the Repurchase Request remains unresolved in connection with Section 3.02(c) of the Sale and Servicing Agreement.
(vii) Any costs associated with the resignation or removal of the Owner Trustee will be paid by the Administrator.
(viii) Any costs associated with the resignation or removal of the Indenture Trustee will be paid by the Administrator (except in connection with resignation required under the Trust Indenture Act following an Event of Default, in which case the outgoing Indenture Trustee will pay such costs).
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of the Administrator are non-ministerial, the Administrator shall not take any action unless authorized pursuant to the Basic Documents and, within a reasonable time before the taking of such action, the Administrator shall have notified the Issuing Entity of the proposed action and the Issuing Entity shall not have withheld consent (which consent may not be unreasonably withheld, conditioned or delayed) or shall not have provided an alternative direction. For the purpose of the preceding sentence, “non-ministerial matters” shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuing Entity and the compromise of any action, claim or lawsuit brought by or against the Issuing Entity (other than in connection with the collection of the Contracts);
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(C) the amendment, change or modification of the Related Agreements;
(D) the appointment of successor Note Registrars, successor Paying Agents and successor Indenture Trustees pursuant to the Indenture or the appointment of a successor Administrator or a Successor Servicer, or the consent to the assignment by the Note Registrar, Paying Agent or Indenture Trustee of its obligations under the Indenture;
(E) the removal of the Indenture Trustee; and
(F) the removal of the Asset Representations Reviewer.
(ii) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (A) make any payments to the Noteholders under the Related Agreements, (B) sell the Collateral pursuant to clause (iv) of Section 5.04(a) of the Indenture, (C) take any other action that the Issuing Entity directs the Administrator not to take on its behalf or (D) take any other action which may be construed as having the effect of varying the investment of the Holders.
(d) Regulation AB. The Administrator and the Depositor acknowledge and agree that the purpose of this Section 1(d) is to facilitate compliance by the Depositor with the provisions of Regulation AB and the related rules and regulations of the Commission. The Depositor shall not exercise its right to request delivery of information or other performance under these provisions other than in good faith, or for purposes other than compliance with the Securities Act, the Exchange Act and the rules and regulations of the Commission under the Securities Act and the Exchange Act. The Administrator acknowledges that interpretations of the requirements of Regulation AB may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and the Administrator agrees to comply with all reasonable requests made by the Depositor in good faith for delivery of information and shall deliver to the Depositor all information and certifications reasonably required by the Depositor to comply with its Exchange Act reporting obligations, including with respect to any of its predecessors or successors. The obligations of the Administrator to provide such information shall survive the removal or termination of the Administrator as Administrator hereunder.
Section 2. Records.
The Administrator shall maintain appropriate books of account and records relating to services performed hereunder, which books of account and records shall be accessible for inspection by the Issuing Entity and the Indenture Trustee with reasonable prior notice at any time during normal business hours. The Issuing Entity and the Indenture Trustee shall, and shall cause their representatives to, hold in confidence all such information except to the extent disclosure may be required by law (and all reasonable applications for confidential treatment are unavailing) and except to the extent that the Indenture Trustee may reasonably determine that such disclosure is consistent with its obligations under the Indenture.
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Section 3. Compensation.
As compensation for the performance of the Administrator’s obligations under this Agreement and as reimbursement for its expenses related thereto, the Administrator shall be entitled to an annual payment of $1,000, which shall be solely an obligation of the Servicer.
Section 4. Additional Information to be Furnished to the Issuing Entity.
The Administrator shall furnish to the Issuing Entity and the Indenture Trustee from time to time such additional information regarding the Collateral as the Issuing Entity or the Indenture Trustee shall reasonably request.
Section 5. Independence of the Administrator.
For all purposes of this Agreement, the Administrator shall be an independent contractor and shall not be subject to the supervision of the Issuing Entity or the Owner Trustee with respect to the manner in which it accomplishes the performance of its obligations hereunder. Unless expressly authorized by the Issuing Entity, the Administrator shall have no authority to act for or represent the Issuing Entity or the Owner Trustee in any way and shall not otherwise be deemed an agent of the Issuing Entity or the Owner Trustee.
Section 6. No Joint Venture.
Nothing contained in this Agreement shall (i) constitute the Administrator and any of the Issuing Entity, the Owner Trustee or the Indenture Trustee as members of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, (ii) be construed to impose any liability as such on any of them or (iii) be deemed to confer on any of them any express, implied or apparent authority to incur any obligation or liability on behalf of the others.
Section 7. Other Activities of Administrator.
Nothing herein shall prevent the Administrator or its Affiliates from engaging in other businesses or, in its sole discretion, from acting in a similar capacity as an administrator for any other Person or entity even though such person or entity may engage in business activities similar to those of the Issuing Entity, the Owner Trustee or the Indenture Trustee.
Section 8. Term of Agreement; Resignation and Removal of Administrator.
This Agreement shall continue in force until the dissolution of the Issuing Entity, upon which event this Agreement shall automatically terminate.
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(a) Subject to Sections 8(d) and 8(e), the Administrator may resign its duties hereunder by providing the Issuing Entity and the Indenture Trustee with at least 60 days’ prior written notice.
(b) Subject to Sections 8(d) and 8(e), the Issuing Entity may remove the Administrator without cause by providing the Administrator with at least 60 days’ prior written notice.
(c) Subject to Sections 8(d) and 8(e), at the sole option of the Issuing Entity, the Administrator may be removed immediately upon written notice of termination from the Issuing Entity to the Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of its duties under this Agreement and, after notice of such default, shall not cure such default within 30 days (or, if such default cannot be cured in such time, shall not give within ten days such assurance of cure as shall be reasonably satisfactory to the Issuing Entity);
(ii) a court having jurisdiction in the premises shall enter a decree or order for relief, and such decree or order shall not have been vacated within 60 days, in respect of the Administrator in any involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect or appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for the Administrator or any substantial part of its property or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar official for the Administrator or any substantial part of its property, shall consent to the taking of possession by any such official of any substantial part of its property, shall make any general assignment for the benefit of creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses (ii) or (iii) above shall occur, it shall give written notice thereof to the Issuing Entity and the Indenture Trustee within seven days after the occurrence of such event.
(d) No resignation or removal of the Administrator pursuant to this Section shall be effective until (i) a successor Administrator acceptable to the Indenture Trustee and the Owner Trustee shall have been appointed by the Issuing Entity with the consent of the Owner Trustee and (ii) such successor Administrator shall have agreed in writing to be bound by the terms of this Agreement in the same manner as the Administrator is bound hereunder.
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(e) The appointment of any successor Administrator shall be effective only after satisfaction of the Rating Agency Condition with respect to the proposed appointment.
Section 9. Action upon Termination, Resignation or Removal.
Promptly upon the effective date of termination of this Agreement pursuant to the first sentence of Section 8 or the resignation or removal of the Administrator pursuant to Section 8(a), (b) or (c), respectively, the Administrator shall be entitled to be paid the prorated portion of all fees and reimbursable expenses as set forth in Section 3 accruing to it to the date of such termination, resignation or removal. The Administrator shall forthwith upon such termination pursuant to the first sentence of Section 1.08 deliver to the Issuing Entity all property and documents of or relating to the Collateral then in the custody of the Administrator. In the event of the resignation or removal of the Administrator pursuant to Section 8(a), (b) or (c), respectively, the Administrator shall cooperate with the Issuing Entity and take all reasonable steps requested to assist the Issuing Entity in making an orderly transfer of the duties of the Administrator. The Administrator’s payment and indemnification obligations pursuant to this Agreement which arose as a result of Administrator’s actions while acting as Administrator shall survive the termination or assignment of this Agreement and the resignation and removal of the Administrator.
Section 10. Notices.
Any notice, report or other communication given hereunder shall be in writing and addressed as follows:
(a) if to the Issuing Entity or the Owner Trustee, to its Corporate Trust Office,
(b) if to the Administrator, to:
WORLD OMNI FINANCIAL CORP., 190 Jim Moran Boulevard, Deerfield Beach, Florida 33442 Attention: Treasurer, Telecopy: (954) 429-2685,
(c) if to the Indenture Trustee, to its Corporate Trust Office,
or to such other address or electronic mail address as any party shall have provided to the other parties in writing. Any notice required to be in writing hereunder shall be deemed given if such notice is mailed by certified mail, postage prepaid, hand-delivered or received by electronic mail to the address of such party as provided above; provided, that, so long as World Omni is the Administrator, the Administrator’s obligation to deliver or provide any demand, delivery, notice, communication or instruction to any Person other than a Noteholder shall be satisfied by the Administrator making such demand, delivery, notice, communication or instruction available at https://via.intralinks.com/, or such other website or distribution service or provider as the Administrator shall designate by written notice to the other parties.
If World Omni is no longer the Administrator, the successor Administrator shall provide any required Rating Agency notices under this Agreement to the Depositor, who promptly shall provide such notices to the Rating Agencies.
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Section 11. Amendments.
(a) This Agreement may be amended from time to time by a written amendment duly executed and delivered by the parties hereto, with the prior written consent of the Owner Trustee, but without the consent of the Noteholders, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders; provided that such amendment will not, as so evidenced by an Officer’s Certificate of the Administrator delivered to the Issuing Entity, the Owner Trustee and the Indenture Trustee, materially and adversely affect the interest of any Noteholder.
(b) This Agreement may also be amended by the parties hereto with the prior written consent of the Owner Trustee and the holders of Notes evidencing at least a majority of the Outstanding Amount of the Controlling Securities for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of Noteholders; provided, further, that no such amendment may (i) increase or reduce in any manner the amount of, or accelerate or delay the timing of, collections of payments on the Contracts or distributions that are required to be made for the benefit of the Noteholders or (ii) reduce the aforesaid percentage of the holders of Notes which are required to consent to any such amendment, without the consent of the holders of all outstanding Notes. Notwithstanding the foregoing, the Administrator may not amend this Agreement without the permission of the Depositor, which permission shall not be unreasonably withheld.
(c) Prior to the execution of any amendment to this Agreement, the Owner Trustee, on behalf of the Issuing Entity, shall be entitled to receive and conclusively rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and that all conditions precedent thereto have been satisfied. The Owner Trustee may, but shall not be obligated to, enter into any such amendment which affects the Owner Trustee’s own rights, duties or immunities under this Agreement or otherwise.
Section 12. Successors and Assigns.
This Agreement may not be assigned by the Administrator unless such assignment is previously consented to in writing by the Issuing Entity, the Owner Trustee and the Indenture Trustee and subject to the satisfaction of the Rating Agency Condition in respect thereof. An assignment with such consent and satisfaction, if accepted by the assignee, shall bind the assignee hereunder in the same manner as the Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned by the Administrator without the consent of the Issuing Entity, the Indenture Trustee or the Owner Trustee to a corporation or other organization that is a successor (by merger, consolidation or purchase of assets) to the Administrator; provided that the Rating Agency Condition is satisfied and such successor organization executes and delivers to the Issuing Entity, the Owner Trustee and the Indenture Trustee an agreement, in form and substance reasonably satisfactory to the Issuing Entity, the Owner Trustee and the Indenture Trustee, in which such corporation or other organization agrees to be bound hereunder by the terms of said assignment in the same manner as the Administrator is bound hereunder. Subject to the foregoing, this Agreement shall bind any successors or assigns of the parties hereto.
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Section 13. Governing Law.
This Agreement shall, in accordance with Section 5-1401 of the General Obligations Law of the State of New York, be governed by, and construed in accordance with, the laws of the State of New York without regard any otherwise applicable conflict of law provisions.
Section 14. Headings.
The section and subsection headings hereof have been inserted for convenience of reference only and shall not be construed to affect the meaning, construction or effect of this Agreement.
Section 15. Counterparts.
This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same agreement.
Section 16. Severability.
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 17. Not Applicable to World Omni in Other Capacities.
Nothing in this Agreement shall affect any obligation World Omni may have in any other capacity.
Section 18. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) It is expressly understood and agreed by the parties hereto that (i) this Agreement is executed and delivered by the Trustee Bank, not individually or personally but solely as Owner Trustee, in the exercise of the powers and authority conferred and vested in it under the Trust Agreement, (ii) each of the representations, undertakings and agreements herein made on the part of the Issuing Entity is made and intended not as personal representations, undertakings and agreements by the Trustee Bank, but is made and intended for the purpose of binding only the Issuing Entity, (iii) nothing herein contained shall be construed as creating any liability on the Trustee Bank, individually or personally, to perform any covenant of the Issuing Entity, either expressed or implied, contained herein, all such liability of the Trustee Bank in its individual or personal capacity, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, (iv) the Trustee Bank has made no investigation into the accuracy or completeness of any representations or warranties made by the Issuing Entity in this Agreement and (v) under no circumstances shall the Trustee Bank be personally liable for the payment of any indebtedness or expenses of the Issuing Entity under this Agreement or any other related documents.
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(b) Notwithstanding anything contained herein to the contrary, this Agreement has been countersigned by U.S. Bank National Association, as Indenture Trustee, and in no event shall U.S. Bank National Association have any liability for the representations, warranties, covenants, agreements or other obligations of the Issuing Entity hereunder or in any of the certificates, notices or agreements delivered pursuant hereto, as to all of which recourse shall be had solely to the assets of the Issuing Entity. For all purposes of this Agreement, the Indenture Trustee shall be entitled to all its benefits under the Indenture.
Section 19. Third-Party Beneficiary.
The Owner Trustee is a third-party beneficiary to this Agreement and is entitled to the rights and benefits hereunder and may enforce the provisions hereof as if it were a party hereto.
Section 20. Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement, each party hereto shall not, at any time, acquiesce, petition or otherwise invoke or cause the Issuing Entity to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Issuing Entity under any Federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuing Entity or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Issuing Entity.
(b) Notwithstanding any prior termination of this Agreement, each party hereto shall not, solely in its capacity as a creditor of the Depositor, at any time, acquiesce, petition or otherwise invoke or cause the Depositor to invoke the process of any court or government authority for the purpose of commencing or sustaining an involuntary case against the Depositor under any Federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Depositor or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Depositor.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Administration Agreement to be duly executed and delivered as of the day and year first above written.
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A, as Issuing Entity | ||
By: WELLS FARGO DELAWARE TRUST COMPANY, N.A., not in its individual capacity but solely as Owner Trustee | ||
By: | /s/ Jose I. Mercado | |
Name: | Jose I. Mercado | |
Title: | Vice President | |
WORLD OMNI AUTO RECEIVABLES LLC, as Depositor | ||
By: | /s/ Bryan Romano | |
Name: | Bryan Romano | |
Title: | Assistant Treasurer | |
U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee | ||
By: | /s/ Christopher J. Nuxoll | |
Name: | Christopher J. Nuxoll | |
Title: | Vice President | |
WORLD OMNI FINANCIAL CORP., as Administrator | ||
By: | /s/ Bryan Romano | |
Name: | Bryan Romano | |
Title: | Assistant Treasurer |
EXHIBIT A
FORM OF POWER OF ATTORNEY
STATE OF __________ | ) |
COUNTY OF _________ | ) |
KNOW ALL MEN BY THESE PRESENTS, that WORLD OMNI AUTO RECEIVABLES TRUST 2017-A (the “Trust”), does hereby make, constitute, and appoint WORLD OMNI FINANCIAL CORP. as Administrator under the Administration Agreement (as defined below), and its agents and attorneys, as Attorneys-in-Fact to execute on behalf of Wells Fargo Delaware Trust Company, N.A., not in its individual capacity but solely as owner trustee (the “Owner Trustee”), or the Trust all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Owner Trustee or the Trust to prepare, file or deliver pursuant to the Related Agreements (as defined in the Administration Agreement), including, without limitation, to appear for and represent the Owner Trustee and the Trust in connection with the preparation, filing and audit of federal, state and local tax returns pertaining to the Trust, and with full power to perform any and all acts associated with such returns and audits that the Owner Trustee could perform, including without limitation, the right to distribute and receive confidential information, defend and assert positions in response to audits, initiate and defend litigation, and to execute waivers of restriction on assessments of deficiencies, consents to the extension of any statutory or regulatory time limit, and settlements. For the purpose of this Power of Attorney, the term “Administration Agreement” means the Administration Agreement, dated as of April 19, 2017, by and among the Trust, World Omni Financial Corp., as Administrator, World Omni Auto Receivables LLC, as Depositor, and U.S. Bank National Association, as Indenture Trustee, as such may be amended, supplemented or otherwise modified and in effect from time to time.
Ex. A-1
All powers of attorney for this purpose heretofore filed or executed by the Owner Trustee are hereby revoked.
EXECUTED this ___ day of ___________, ____
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A | ||
By: WELLS FARGO DELAWARE TRUST COMPANY, N.A., not in its individual capacity but solely as Owner Trustee | ||
By: | ||
Name: | ||
Title: |
Ex. A-2
Exhibit 99.3
ASSET REPRESENTATIONS REVIEW AGREEMENT
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A,
as Issuer,
and
WORLD OMNI FINANCIAL CORP.,
as Servicer,
and
CLAYTON FIXED INCOME SERVICES LLC,
as Asset Representations Reviewer
Dated as of April 19, 2017
TABLE OF CONTENTS
ARTICLE I. USAGE AND DEFINITIONS | 1 | |
Section 1.01 | Usage and Definitions | 1 |
Section 1.02 | Definitions | 1 |
ARTICLE II. ENGAGEMENT; ACCEPTANCE | 2 | |
Section 2.01 | Engagement; Acceptance. | 2 |
Section 2.02 | Confirmation of Status. | 2 |
Section 2.03 | Consent to Filing. | 2 |
ARTICLE III. ASSET REPRESENTATIONS REVIEW PROCESS | 3 | |
Section 3.01 | Review Notices and Identification of Review Receivables. | 3 |
Section 3.02 | Review Materials. | 3 |
Section 3.03 | Performance of Reviews. | 3 |
Section 3.04 | Review Report. | 5 |
Section 3.05 | Review Representatives. | 5 |
Section 3.06 | Dispute Resolution. | 5 |
Section 3.07 | Limitations on Review Obligations. | 6 |
ARTICLE IV. ASSET REPRESENTATIONS REVIEWER | 6 | |
Section 4.01 | Representations and Warranties of the Asset Representations Reviewer. | 6 |
Section 4.02 | Fees and Expenses | 7 |
Section 4.03 | Limitation on Liability. | 8 |
Section 4.04 | Indemnification by Asset Representations Reviewer. | 9 |
Section 4.05 | Indemnification of Asset Representations Reviewer. | 9 |
Section 4.06 | Inspections of Asset Representations Reviewer | 10 |
Section 4.07 | Delegation of Obligations | 10 |
Section 4.08 | Confidential Information | 10 |
Section 4.09 | Personally Identifiable Information | 12 |
ARTICLE V. REMOVAL, RESIGNATION | 14 | |
Section 5.01 | Eligibility of the Asset Representations Reviewer. | 14 |
Section 5.02 | Resignation and Removal of Asset Representations Reviewer. | 15 |
Section 5.03 | Successor Asset Representations Reviewer | 15 |
Section 5.04 | Merger, Consolidation or Succession | 16 |
ARTICLE VI. OTHER AGREEMENTS | 16 | |
Section 6.01 | Independence of the Asset Representations Reviewer. | 16 |
Section 6.02 | No Petition | 16 |
Section 6.03 | Limitation of Liability of Owner Trustee | 16 |
Section 6.04 | Termination of Agreement | 17 |
ARTICLE VII. MISCELLANEOUS PROVISIONS | 17 | |
Section 7.01 | Amendments. | 17 |
Section 7.02 | Assignment; Benefit of Agreement; Third Party Beneficiaries | 18 |
Section 7.03 | Notices | 18 |
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Section 7.04 | GOVERNING LAW | 19 |
Section 7.05 | WAIVER OF JURY TRIAL | 19 |
Section 7.06 | No Waiver; Remedies | 19 |
Section 7.07 | Severability | 19 |
Section 7.08 | Headings | 19 |
Section 7.09 | Counterparts | 19 |
Schedule A – Review Materials
Schedule B – Representations, Warranties and Tests
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This ASSET REPRESENTATIONS REVIEW AGREEMENT (this “Agreement”), entered into as of April 19, 2017, by and among WORLD OMNI AUTO RECEIVABLES TRUST 2017-A, a Delaware statutory trust (the “Issuer”), WORLD OMNI FINANCIAL CORP., a Florida corporation (the “Servicer”), and Clayton Fixed Income Services LLC, a Delaware limited liability company (the “Asset Representations Reviewer”).
WHEREAS, the Issuer will engage the Asset Representations Reviewer to perform reviews of certain Receivables for compliance with certain representations and warranties made with respect thereto; and
WHEREAS, the Asset Representations Reviewer desires to perform such reviews of Receivables in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I.
USAGE AND DEFINITIONS
Section 1.01 Usage and Definitions.
Capitalized terms used but not defined in this Agreement shall have the meanings ascribed to such terms in the Sale and Servicing Agreement, dated as of April 19, 2017 (the “Sale and Servicing Agreement”), among the Issuer, World Omni Auto Receivables LLC, as depositor, and the Servicer.
Section 1.02 Definitions.
Whenever used in this Agreement, the following words and phrases shall have the following meanings:
“Annual Fee” has the meaning stated in Section 4.02(a).
“Confidential Information” has the meaning stated in Section 4.08(b).
“Eligible Representations” shall mean those representations identified within the “Tests” included in Schedule B.
“Information Recipients” has the meaning stated in Section 4.08(a).
“Indemnified Person” has the meaning stated in Section 4.05(a).
“Issuer PII” has the meaning stated in Section 4.09(a).
“PII” has the meaning stated in Section 4.09(a).
“Review Fee” has the meaning stated in Section 4.02(b).
“Review Materials” means the documents, data, and other information required for each “Test” in Schedule A.
“Review Receivables” means those Delinquent Receivables that have been Delinquent Receivables for 60 days or more as of the last day of the preceding Collection Period identified by the Servicer as requiring a Review by the Asset Representations Reviewer following receipt of a Review Notice according to Section 3.01.
“Review Report” has the meaning stated in Section 3.04.
“Tests” mean the procedures listed in Schedule B as applied to the process described in Section 3.03.
“Test Complete” has the meaning stated in Section 3.03(c).
“Test Fail” has the meaning stated in Section 3.03(a).
“Test Pass” has the meaning stated in Section 3.03(a).
ARTICLE II.
ENGAGEMENT; ACCEPTANCE
Section 2.01 Engagement; Acceptance.
The Issuer hereby engages Clayton Fixed Income Services LLC to act as the Asset Representations Reviewer for the Issuer. Clayton Fixed Income Services LLC accepts the engagement and agrees to perform the obligations of the Asset Representations Reviewer on the terms stated in this Agreement.
Section 2.02 Confirmation of Status.
The parties confirm that the Asset Representations Reviewer is not responsible for (a) reviewing the Receivables for compliance with the representations and warranties under the Basic Documents, except as described in this Agreement, or (b) determining whether noncompliance with the representations or warranties constitutes a breach of the Basic Documents.
Section 2.03 Consent to Filing.
The Asset Representations Reviewer hereby consents to the filing of this Agreement, including the schedules hereto, with the Commission.
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ARTICLE III.
ASSET REPRESENTATIONS REVIEW PROCESS
Section 3.01 Review Notices and Identification of Review Receivables.
On receipt of a Review Notice from the Indenture Trustee according to Section 7.05(c) of the Indenture, the Asset Representations Reviewer will start a Review. The Servicer will provide the list of Review Receivables to the Asset Representations Reviewer promptly upon receipt of the Review Notice.
The Asset Representations Reviewer will not be obligated to start, and will not start, a Review until a Review Notice and the related list of Review Receivables is received. The Asset Representations Reviewer is not obligated to verify (i) whether the conditions to the initiation of the Review and the issuance of a Review Notice described in Section 7.05 of the Indenture were satisfied or (ii) the accuracy or completeness of the list of Review Receivables provided by the Servicer.
Section 3.02 Review Materials.
(a) Access to Review Materials. Within 60 days of receipt of a Review Notice, the Servicer will provide the Asset Representations Reviewer with access to the Review Materials for all Review Receivables in one or more of the following ways, at its option: (i) by providing access to the Servicer’s systems, either remotely or at an office of the Servicer, (ii) by electronic posting to a password-protected website to which the Asset Representations Reviewer has access, (iii) by providing originals or photocopies at an office of the Servicer or (iv) in another manner agreed by the Servicer and the Asset Representations Reviewer. The Servicer may redact or remove PII from the Review Materials without changing the meaning or usefulness of the Review Materials. The Asset Representations Reviewer shall be entitled to rely in good faith, without independent investigation or verification, that the Review Materials are accurate and complete in all material respects, and not misleading in any material respect.
(b) Missing or Insufficient Review Materials. Upon receipt of the Review Materials, the Asset Representations Reviewer will review the Review Materials to determine if any Review Materials are missing or insufficient for the Asset Representations Reviewer to perform any Test. If the Asset Representations Reviewer determines any missing or insufficient Review Materials, the Asset Representations Reviewer will notify the Servicer promptly, and in any event no less than 20 days before completing the Review. The Servicer will have 15 days to give the Asset Representations Reviewer access to the missing Review Materials or other documents or information to correct the insufficiency. If the missing Review Materials or other documents have not been provided by the Servicer within 15 days, the related Review Report will report a Test Fail for each Test that requires use of the missing or insufficient Review Materials.
Section 3.03 Performance of Reviews.
(a) Test Procedures. For a Review, the Asset Representations Reviewer will perform, for each Review Receivable, the Tests for each Eligible Representation. In the course of its review, the Asset Representations Reviewer will use the Review Materials listed in Schedule A as specified in the description of each Test under Schedule B. For each Test and Review Receivable, the Asset Representations Reviewer will determine if the Test has been satisfied (a “Test Pass”) or if the Test has not been satisfied (a “Test Fail”). During the course of its review, the Asset Representations Reviewer will provide the Issuer and the Servicer with a preliminary list of any Test Fail and the issues identified and, at that time, the Servicer has the option of electing to provide additional Review Materials or information which the Asset Representations Reviewer will analyze and consider in preparing the Review Report.
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(b) Review Period. The Asset Representations Reviewer will complete the Review within 60 days of receiving access to the Review Materials. However, if missing or additional Review Materials are provided to the Asset Representations Reviewer as described in Sections 3.02(b) or 3.03(a), the Review period will be extended for an additional 30 days.
(c) Completion of Review for Certain Review Receivables. Following the delivery of the list of the Review Receivables and before the delivery of the Review Report by the Asset Representations Reviewer, the Servicer may notify the Asset Representations Reviewer if a Review Receivable is paid in full by the Obligor or otherwise satisfied or repurchased from the Issuer in accordance with Sections 3.02(b) or 4.07 of the Sale and Servicing Agreement. On receipt of such notice, the Asset Representations Reviewer will immediately terminate all Tests of the related Review Receivable, and the Review of such Review Receivables will be considered complete (a “Test Complete”). In this case, the related Review Report will indicate a Test Complete for such Review Receivable and the related reason.
(d) Previously Reviewed Receivables; Duplicative Tests. If any Review Receivable was included in a prior Review, the Asset Representations Reviewer will not conduct additional Tests on such Review Receivable, but will include the previously reported Test results in the Review Report for the current Review. If the same Test is required for more than one Eligible Representation, the Asset Representations Reviewer will only perform the Test once for each Review Receivable, but will report the results of the Test for each applicable Eligible Representation on the Review Report.
(e) Termination of Review. If a Review is in process and the Notes will be paid in full on the next Payment Date, the Servicer or the Administrator will notify the Asset Representations Reviewer no less than 10 days before that Payment Date. On receipt of such notice, the Asset Representations Reviewer will terminate the Review immediately and will not be obligated to deliver a Review Report.
(f) Review Systems; Personnel. The Asset Representations Reviewer will maintain business process management and/or other systems necessary to ensure that it can perform each Test and, on execution of this Agreement, will load each Test into these systems. The Asset Representations Reviewer will ensure that these systems allow for each Review Receivable and the related Review Materials to be individually tracked and stored as contemplated by this Agreement. The Asset Representations Reviewer will maintain adequate staff that is properly trained to conduct Reviews as required by this Agreement.
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Section 3.04 Review Report.
Within 5 days after the end of the applicable Review period under Section 3.03(b), the Asset Representations Reviewer will deliver to the Issuer, the Servicer, and the Indenture Trustee a report (the “Review Report”) indicating for each Review Receivable whether there was a Test Pass, Test Fail or Test Complete for each related Test. For each Test Fail or Test Complete, the Review Report will indicate the related reason, including (for example) whether the Review Receivable was a Test Fail as a result of missing or incomplete Review Materials. The Review Report will contain a summary of the Review results to be included in the Issuer’s Form 10-D report for the Collection Period in which the Review Report is received. The Asset Representations Reviewer will ensure that the Review Report does not contain any PII. On reasonable request of the Servicer, the Asset Representations Reviewer will provide additional details on the Test results.
Section 3.05 Review Representatives.
(a) Servicer Representative. The Servicer will designate one or more representatives who will be available to assist the Asset Representations Reviewer in performing the Review, including responding to requests and answering questions from the Asset Representations Reviewer about access to Review Materials on the Servicer’s or World Omni’s originations, receivables or other systems, obtaining missing or insufficient Review Materials and/or providing clarification of any Review Materials or Tests.
(b) Asset Representations Review Representative. The Asset Representations Reviewer will designate one or more representatives who will be available to the Issuer and the Servicer during the performance of a Review.
(c) Questions About Review. The Asset Representations Reviewer will make appropriate personnel available to respond in writing to written questions or requests for clarification of any Review Report from the Indenture Trustee or the Servicer until the earlier of (i) the payment in full of the Notes and (ii) one year after the delivery of the Review Report. The Asset Representations Reviewer will not be obligated to respond to questions or requests for clarification from Noteholders or any other Person and will direct such Persons to submit written questions or requests to the Indenture Trustee.
Section 3.06 Dispute Resolution.
If a Review Receivable that was the subject of a Review becomes the subject of a dispute resolution proceeding under Section 3.02(c) of the Sale and Servicing Agreement, the Asset Representations Reviewer will participate in the dispute resolution proceeding on request of a party to the proceeding. The reasonable out-of-pocket expenses of the Asset Representations Reviewer for its participation in any dispute resolution proceeding will be considered expenses of the requesting party for the dispute resolution; provided, that for any mediation proceeding, such expenses will be paid by a party to the dispute resolution as determined by the mutual agreement of such parties and, for any binding arbitration, will be paid by a party to the dispute resolution as determined by the arbitrator for the dispute resolution according to Section 3.02(c) of the Sale and Servicing Agreement. If not paid by a party to the dispute resolution, the expenses will be reimbursed in accordance with Section 4.02(d) of this Agreement.
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Section 3.07 Limitations on Review Obligations.
(a) Review Process Limitations. The Asset Representations Reviewer will have no obligation (i) to determine whether the Delinquency Trigger has been met or exceeded or whether the required percentage of Noteholders has voted to direct a Review under the Indenture; (ii) to determine which Receivables are subject to a Review, (iii) to obtain or confirm the validity of the Review Materials, (iv) to obtain missing or insufficient Review Materials except as specifically described herein, (v) to take any action or cause any other party to take any action under any of the Basic Documents to enforce any remedies for breaches of representations or warranties about the Eligible Representations, (vi) to determine the reason for the delinquency of any Review Receivable, the creditworthiness of any Obligor, the overall quality of any Review Receivable or the compliance by the Servicer with its covenants with respect to the servicing of such Review Receivable, or (vii) to establish cause, materiality or recourse for any failed Test as described in Section 3.03.
(b) Testing Procedure Limitations. The Asset Representations Reviewer will only be required to perform the Tests, and will not be obligated to perform additional procedures on any Review Receivable or to provide any information other than a Review Report. However, the Asset Representations Reviewer may provide additional information in a Review Report about any Review Receivable that it determines in good faith to be material to the Review.
(c) Maintenance of Review Materials. The Asset Representations Reviewer will maintain copies of any Review Materials, Review Reports and other documents relating to a Review, including internal correspondence and work papers, until the earlier of (i) payment in full of the Notes and (ii) one year after the delivery of any Review Report. At the expiration of such period, the Asset Representations Reviewer shall return Review Materials to the Servicer.
ARTICLE IV.
ASSET REPRESENTATIONS REVIEWER
Section 4.01 Representations and Warranties of the Asset Representations Reviewer.
The Asset Representations Reviewer hereby makes the following representations and warranties as of the Closing Date:
(a) Organization and Qualification. The Asset Representations Reviewer is duly organized and validly existing as a limited liability company in good standing under the laws of State of Delaware. The Asset Representations Reviewer is qualified as a foreign limited liability company in good standing and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of its properties or the conduct of its activities requires the qualification, license or approval, unless the failure to obtain the qualifications, licenses or approvals would not reasonably be expected to have a material adverse effect on the Asset Representations Reviewer’s ability to perform its obligations under this Agreement.
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(b) Power, Authority and Enforceability. The Asset Representations Reviewer has the power and authority to execute, deliver and perform its obligations under this Agreement. The Asset Representations Reviewer has authorized the execution, delivery and performance of this Agreement. This Agreement is the legal, valid and binding obligation of the Asset Representations Reviewer enforceable against the Asset Representations Reviewer, except as may be limited by insolvency, bankruptcy, reorganization or other laws relating to the enforcement of creditors’ rights or by general equitable principles.
(c) No Conflicts and No Violation. The completion of the transactions contemplated by this Agreement and the performance of the Asset Representations Reviewer’s obligations under this Agreement will not (i) conflict with, or be a breach or default under, any indenture, loan agreement, guarantee or similar document under which the Asset Representations Reviewer is a debtor or guarantor, (ii) result in the creation or imposition of a Lien on the properties or assets of the Asset Representations Reviewer under the terms of any indenture, loan agreement, guarantee or similar document, (iii) violate the organizational documents of the Asset Representations Reviewer or (iv) violate a law or, to the Asset Representations Reviewer’s knowledge, an order, rule or regulation of a federal or State court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Asset Representations Reviewer or its property that applies to the Asset Representations Reviewer, which, in each case, would reasonably be expected to have a material adverse effect on the Asset Representations Reviewer’s ability to perform its obligations under this Agreement.
(d) No Proceedings. To the Asset Representations Reviewer’s knowledge, there are no proceedings or investigations pending or threatened in writing before a federal or State court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Asset Representations Reviewer or its properties (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the completion of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that would reasonably be expected to have a material adverse effect on the Asset Representations Reviewer’s ability to perform its obligations under, or the validity or enforceability of, this Agreement.
(e) Eligibility. The Asset Representations Reviewer meets the eligibility requirements in Section 5.01, and will notify the Issuer and the Servicer promptly if it no longer meets, or reasonably expects that it will no longer meet, the eligibility requirements in Section 5.01.
Section 4.02 Fees and Expenses
(a) Annual Fee. As compensation for its activities hereunder, the Asset Representations Reviewer shall be entitled to receive an annual fee (the “Annual Fee”) with respect to each annual period prior to the termination of the Issuer, in an amount equal to $7,500; provided, that the Asset Representations Reviewer will return to the Servicer or the Issuer, as applicable, the pro rata portion of the Annual Fee to the extent the Issuer is terminated prior to the end of an annual period for which an Annual Fee has been paid. The Annual Fee will be paid by the Servicer on the Closing Date and on each anniversary of the Closing Date until this Agreement is terminated.
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(b) Review Fee. Following the completion of a Review and the delivery of the related Review Report pursuant to Section 3.04, or the termination of a Review according to Section 3.03(e), and the delivery to the Issuer and the Servicer of a detailed invoice, the Asset Representations Reviewer will be entitled to a fee of $200 for each Review Receivable for which the Review was started (the “Review Fee”) to be paid by the Servicer within 30 days upon receipt of such invoice. However, no Review Fee will be charged for any Review Receivable (i) which was included in a prior Review, (ii) for which no Tests were completed prior to the Asset Representations Reviewer being notified of a termination of the Review according to Section 3.03(e), (iii) for which no Tests were completed prior to the Asset Representations Reviewer being notified of the Review Receivable being paid in full by the Obligor, otherwise satisfied or repurchased by World Omni as described in Section 3.03(c), or (iv) due to missing or insufficient Review Materials under Section 3.02(b). However, if a Review is terminated according to Section 3.03(e), the Asset Representations Reviewer must submit its invoice to the Issuer and the Servicer for the Review Fee for the terminated Review no later than ten (10) Business Days before the final Payment Date to be reimbursed on such final Payment Date.
(c) Reimbursement of Travel Expenses. If the Servicer provides access to the Review Materials at one of its properties, the Servicer will reimburse the Asset Representations Reviewer for its reasonable out-of-pocket travel expenses incurred in connection with the Review promptly following receipt of a detailed invoice.
(d) Dispute Resolution Expenses. If the Asset Representations Reviewer participates in a dispute resolution proceeding under Section 3.06 of this Agreement and its reasonable out-of-pocket expenses for participating in the proceeding are not paid by a party to the dispute resolution within ninety (90) days after the end of the proceeding, the Servicer will reimburse the Asset Representations Reviewer for such expenses promptly following receipt of a detailed invoice.
(e) Payment of Invoices. When applicable pursuant to this Section 4.02 and 4.05, the Asset Representations Reviewer will invoice the Servicer at the notices address set forth in Section 7.03(b) of this Agreement, and all such invoices are payable within thirty (30) days of receipt. In the event fees and expenses of the Asset Representations Reviewer are not paid by the Servicer within sixty (60) days, the Asset Representations Reviewer will issue invoices to the Issuer (with a copy to the Depositor) at the notices address set forth in Section 7.03(b) of this Agreement and the Issuer shall pay all invoices submitted by the Asset Representations Reviewer according to the priority of payments in Sections 5.06(ii) and (iii) of the Sale and Servicing Agreement on the Payment Date following the month in which the invoice was received by the Issuer.
Section 4.03 Limitation on Liability.
The Asset Representations Reviewer will not be liable to any Person for any action taken, or not taken, in good faith under this Agreement or for errors in judgment. However, the Asset Representations Reviewer will be liable for its willful misconduct, bad faith or negligence in performing its obligations under this Agreement. In no event will the Asset Representations Reviewer be liable for special, punitive, indirect or consequential losses or damages (including lost profit), even if the Asset Representations Reviewer has been advised of the likelihood of the loss or damage and regardless of the form of action.
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Section 4.04 Indemnification by Asset Representations Reviewer.
The Asset Representations Reviewer will indemnify each of the Issuer, World Omni, the Depositor, the Servicer, the Administrator, the Owner Trustee and the Indenture Trustee and their respective directors, officers, employees and agents for all fees, expenses, losses, damages and liabilities (including reasonable and documented legal fees and expenses including, without limitation, any legal fees, costs and expenses incurred in connection with any enforcement (including any action, claim or suit brought) by an indemnified party of any indemnification or other obligation of the Asset Representations Reviewer and other amounts owed thereto pursuant to this Agreement) resulting from (a) the willful misconduct, bad faith or negligence of the Asset Representations Reviewer in performing its obligations under this Agreement, (b) the Asset Representations Reviewer’s breach of any of its representations or warranties in this Agreement or (c) the Asset Representation Reviewer’s breach of any of its obligations in Section 4.08 and 4.09 of this Agreement. The Asset Representations Reviewer’s obligations under this Section 4.04 will survive the termination or assignment of this Agreement, the termination of the Issuer and the resignation or removal of the Asset Representations Reviewer.
Section 4.05 Indemnification of Asset Representations Reviewer.
(a) Indemnification. The Issuer will, or will cause the Servicer to, indemnify the Asset Representations Reviewer and its officers, directors, employees and agents (each, an “Indemnified Person”), for all costs, expenses, losses, damages and liabilities resulting from the performance of the Asset Representations Reviewer’s obligations under this Agreement (including the reasonable out-of-pocket fees and expenses of defending itself against any loss, damage or liability), but excluding any cost, expense, loss, damage or liability resulting from (i) the Asset Representations Reviewer’s willful misconduct, bad faith or negligence, (ii) the Asset Representations Reviewer’s breach of any of its representations or warranties in this Agreement or (iii) the Asset Representation Reviewer’s breach of any of its obligations in Section 4.08 and 4.09 of this Agreement.
(b) Proceedings. Promptly on receipt by an Indemnified Person of notice of a Proceeding against it, the Indemnified Person will, if a claim is to be made under Section 4.05(a), notify the Issuer and the Servicer of the Proceeding. The Issuer or the Servicer may participate in and assume the defense and settlement of a Proceeding at its expense. If the Issuer or the Servicer notifies the Indemnified Person of its intention to assume the defense of the Proceeding with counsel reasonably satisfactory to the Indemnified Person, and so long as the Issuer, the Servicer or the Servicer assumes the defense of the Proceeding in a manner reasonably satisfactory to the Indemnified Person, the Issuer and the Servicer will not be liable for fees and expenses of counsel to the Indemnified Person unless there is a conflict between the interests of the Issuer or the Servicer, as applicable, and an Indemnified Person. If there is a conflict, the Issuer, the Servicer or the Servicer will pay for the reasonable fees and expenses of separate counsel to the Indemnified Person. No settlement of a Proceeding may be made without the approval of the Issuer and the Servicer and the Indemnified Person, which approval will not be unreasonably withheld, conditioned or delayed.
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(c) Survival of Obligations. The Issuer’s and the Servicer’s obligations under this Section 4.05 will survive the resignation or removal of the Asset Representations Reviewer and the termination or assignment of this Agreement. For the avoidance of doubt, indemnities, fees and expenses payable to the Asset Representations Reviewer pursuant to Sections 4.02 and 4.05 of this Agreement are not limited to the annual maximum amount set forth in the prospectus.
(d) Repayment. If the Issuer or the Servicer makes any payment under this Section 4.05 and the Indemnified Parties later collects any of the amounts for which the payments were made to it from others, the Indemnified Person will promptly repay the amount to the Issuer or the Servicer, as applicable.
Section 4.06 Inspections of Asset Representations Reviewer
The Asset Representations Reviewer agrees that, with reasonable advance notice not more than once during any year, it will permit authorized representatives of the Issuer, the Servicer or the Administrator, during the Asset Representations Reviewer's normal business hours, to examine and review the books of account, records, reports and other documents and materials of the Asset Representations Reviewer relating to (a) the performance of the Asset Representations Reviewer's obligations under this Agreement, (b) payments of fees and expenses of the Asset Representations Reviewer for its performance and (c) a claim made by the Asset Representations Reviewer under this Agreement. In addition, the Asset Representations Reviewer will permit the Issuer's, the Servicer's or the Administrator's representatives to make copies and extracts of any of those documents and to discuss them with the Asset Representations Reviewer's officers and employees. Each of the Issuer, the Servicer and the Administrator will, and will cause its authorized representatives to, hold in confidence the information except if disclosure may be required by law or if the Issuer, the Servicer or the Administrator reasonably determines that it is required to make the disclosure under this Agreement or the other Basic Documents. The Asset Representations Reviewer will maintain all relevant books, records, reports and other documents and materials for a period of at least two years after the termination of its obligations under this Agreement.
Section 4.07 Delegation of Obligations. The Asset Representations Reviewer may not delegate or subcontract its obligations under this Agreement to any Person without the consent of the Issuer and the Servicer, which consent will not be unreasonably withheld or delayed.
Section 4.08 Confidential Information.
(a) Treatment.
The Asset Representations Reviewer agrees to hold and treat Confidential Information given to it under this Agreement in confidence
and under the terms and conditions of this Section 4.08, and will implement and maintain safeguards to further assure the confidentiality
of the Confidential Information. The Confidential Information will not, without the prior
consent of the Issuer and the Servicer, be disclosed or used by the Asset Representations Reviewer, or its officers, directors,
employees, agents, representatives or affiliates, including legal counsel (collectively, the "Information Recipients")
other than for the purposes of performing Reviews of Review Receivables or performing its obligations under this Agreement. The
Asset Representations Reviewer agrees that it will not, and will cause its Affiliates to not (i) purchase or sell securities issued
by the Depositor or its Affiliates or special purpose entities on the basis of Confidential Information or (ii) use the Confidential
Information for the preparation of research reports, newsletters or other publications or similar communications.
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(b) Definition. "Confidential Information" means oral, written and electronic materials (irrespective of its source or form of communication) furnished to or obtained by the Asset Representations Reviewer before, on or after the date of this Agreement, including without limitation:
(i) lists of Review Receivables and any related Review Materials;
(ii) origination and servicing guidelines, policies and procedures, and form contracts;
(iii) notes, analyses, compilations, studies or other documents or records prepared by the Servicer, which contain information supplied by or on behalf of the Servicer or its representatives; and
(iv) all Issuer PII.
However, except for Issuer PII (which shall always be deemed to be Confidential Information), Confidential Information will not include information that (A) is or becomes generally available to the public other than as a result of disclosure by the Information Recipients, (B) was available to, or becomes available to, the Information Recipients on a non-confidential basis from a Person or entity other than the Issuer or the Servicer before its disclosure to the Information Recipients who, to the knowledge of the Information Recipient is not bound by a confidentiality agreement with the Issuer or the Servicer and is not prohibited from transmitting the information to the Information Recipients, (C) is independently developed by the Information Recipients without the use of the Confidential Information, as shown by the Information Recipients' files and records or other evidence in the Information Recipients' possession or (D) the Issuer or the Servicer provides permission to the applicable Information Recipients to release.
(c) Protection. The Asset Representations Reviewer will protect the secrecy of and avoid disclosure and unauthorized use of Confidential Information, and shall use at least the same standard of care that it uses to protect its own confidential information and not less than a reasonable standard of care. The Asset Representations Reviewer acknowledges that Personally Identifiable Information is also subject to the additional requirements in Section 4.09.
(d) Disclosure.
If the Asset Representations Reviewer is required by applicable law, regulation, rule or order issued by an administrative, governmental,
regulatory or judicial authority to disclose part of the Confidential Information, it may disclose the Confidential Information.
However, before a required disclosure, the Asset Representations Reviewer, if permitted by law, regulation, rule or order, will
use its reasonable efforts to provide the Issuer and the Servicer
with notice of the requirement and will cooperate, at the Servicer's expense, in the Issuer's and the Servicer's
pursuit of a proper protective order or other relief for the disclosure of the Confidential Information. If the Issuer or the Servicer
is unable to obtain a protective order or other proper remedy by the date that the information is required to be disclosed, the
Asset Representations Reviewer will disclose only that part of the Confidential Information that it is advised by its legal counsel
it is legally required to disclose.
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(e) Responsibility for Information Recipients. The Asset Representations Reviewer will be responsible for a breach of this Section 4.08 by its Information Recipients.
(f) Violation. The Asset Representations Reviewer agrees that a violation of this Agreement may cause irreparable injury to the Issuer and the Servicer and the Issuer and the Servicer may seek injunctive relief in addition to legal remedies. If an action is initiated by the Issuer or the Servicer to enforce this Section 4.08, the prevailing party will be reimbursed for its fees and expenses, including reasonable attorney's fees, incurred for the enforcement.
Section 4.09 Personally Identifiable Information
(a) Definitions. "Personally Identifiable Information" or "PII" means information in any format about an identifiable individual, including, name, address, phone number, e-mail address, account number(s), identification number(s), any other actual or assigned attribute associated with or identifiable to an individual and any information that when used separately or in combination with other information could identify an individual. "Issuer PII" means PII furnished by the Issuer, the Servicer or their Affiliates to the Asset Representations Reviewer and PII developed or otherwise collected or acquired by the Asset Representations Reviewer in performing its obligations under this Agreement.
(b) Use of Issuer PII. The Issuer does not grant the Asset Representations Reviewer any rights to Issuer PII except as provided in this Agreement. The Asset Representations Reviewer will use Issuer PII only to perform its obligations under this Agreement or as specifically directed in writing by the Issuer and will only reproduce Issuer PII to the extent necessary for these purposes. The Asset Representations Reviewer must comply with all laws, rules, regulations and orders (including without limitation § 501(b) of the Gramm-Leach-Bliley Act and the Interagency Guidelines Establishing Standards for Safeguarding Customer Information (12 C.F.R. Section 208, Appendix D-2)) applicable to PII, Issuer PII or the Asset Representations Reviewer's business, including any legally required codes of conduct, including those relating to privacy, security and data protection (collectively, “Privacy Laws”). The Asset Representations Reviewer will protect and secure Issuer PII and prevent the improper use or disclosure thereof. The Asset Representations Reviewer will implement privacy or data protection policies and procedures that comply with applicable law and this Agreement. The Asset Representations Reviewer will implement and maintain reasonable and appropriate practices, procedures and systems, including administrative, technical and physical safeguards to (i) protect the security, confidentiality and integrity of Issuer PII, (ii) ensure against anticipated threats or hazards to the security or integrity of Issuer PII, (iii) protect against unauthorized access to or use of Issuer PII and (iv) otherwise comply with its obligations under this Agreement. These safeguards include a written data security plan, employee training, information access controls, restricted disclosures, systems protections (e.g., intrusion protection, data storage protection and data transmission protection) and physical security measures.
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(c) Additional Requirements and Limitations. In addition to the use and protection requirements described in Section 4.09(b), the Asset Representations Reviewer's disclosure of Issuer PII is also subject to the following requirements:
(i) The
Asset Representations Reviewer will not disclose Issuer PII to its personnel or allow its personnel access to Issuer PII except
(A) for the Asset Representations Reviewer personnel who require Issuer PII to perform a Review, (B) with the
prior written consent of the Issuer and the Servicer or (C) as required by applicable law. When permitted, the
disclosure of or access to Issuer PII will be limited to the specific information necessary for the individual to complete the
assigned task. The Asset Representations Reviewer will inform personnel with access to Issuer PII of the confidentiality requirements
in this Agreement and train its personnel with access to Issuer PII on the proper use and protection of Issuer PII.
(ii) The
Asset Representations Reviewer will not sell, disclose, provide or exchange Issuer PII with or to any third party without the
prior written consent of the Issuer and the Servicer.
(iii) The Asset Representations Reviewer agrees, represents and warrants that the Asset Representations Reviewer has, and will continue to have, adequate administrative, technical, and physical safeguards designed to: (a) to ensure the security and confidentiality of all PII; (b) to protect against any anticipated threats or hazards to the security or integrity of PII; and (c) to protect against unauthorized acquisition of, access to or use of PII which could result in a “breach” as that terms is defined under applicable Privacy Laws, or substantial harm to Issuer or Servicer or any individual about whom Issuer or Servicer has or collects financial and other information.
(iv) The Asset Representations Reviewer agrees to provide Issuer and Servicer with information regarding its and its representatives’ privacy and information security systems, policies and procedures as Issuer or Servicer may reasonably request relating to its compliance with this Agreement and applicable Privacy Laws. The Asset Representations Reviewer agrees to provide training in the Privacy Laws and Asset Representations Reviewer’s information security policies to all Asset Representations Reviewer personnel whose duties pursuant to this Agreement could bring them in contact with PII. The Asset Representations Reviewer shall comply at all times with Servicer’s information security policies and procedures in connection with any access to or use of Servicer’s network or systems.
(d) Notice of Breach. The Asset Representations Reviewer will notify the Issuer and the Servicer promptly in the event of an actual or reasonably suspected security breach, unauthorized access, misappropriation or other compromise of the security, confidentiality or integrity of Issuer PII and, where applicable, immediately take action to prevent any further breach.
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(e) Return or Disposal of Issuer PII. Except where return or disposal is prohibited by applicable law, promptly on the earlier of the completion of the Review or the request of the Issuer or the Servicer, all Issuer PII in any medium in the Asset Representations Reviewer's possession or under its control will be (i) destroyed in a manner that prevents its recovery or restoration or (ii) if so directed by the Issuer or the Servicer, returned to the Issuer or the Servicer, as applicable, without the Asset Representations Reviewer retaining any actual or recoverable copies, in both cases, without charge to the Issuer or the Servicer. Where the Asset Representations Reviewer retains Issuer PII, the Asset Representations Reviewer will limit the Asset Representations Reviewer's further use or disclosure of Issuer PII to that required by applicable law.
(f) Compliance; Modification. The Asset Representations Reviewer will cooperate with and provide information to the Issuer regarding the Asset Representations Reviewer's compliance with this Section 4.09. The Asset Representations Reviewer and the Issuer agree to modify this Section 4.09 as necessary for either party to comply with applicable law.
(g) Audit of Asset Representations Reviewer. The Asset Representations Reviewer will permit the Issuer and the Servicer and each of their authorized representatives to audit the Asset Representations Reviewer's compliance with this Section 4.09 during the Asset Representations Reviewer's normal business hours on reasonable advance notice to the Asset Representations Reviewer, and not more than once during any year unless circumstances necessitate additional audits. Each of the Issuer and the Servicer agrees to make reasonable efforts to schedule any audit described in this Section 4.09 with the inspections described in Section 4.06. The Asset Representations Reviewer will also permit the Issuer and the Servicer during normal business hours on reasonable advance notice to audit any service providers used by the Asset Representations Reviewer to fulfill the Asset Representations Reviewer's obligations under this Agreement and the Asset Representations Reviewer shall make commercially reasonable efforts to cause such service providers to permit the Issuer and the Servicer to conduct such audit.
(h) Affiliates and Third Parties. If the Asset Representations Reviewer processes the PII of the Issuer's Affiliates or a third party when performing a Review, and if such Affiliate or third party is identified to the Asset Representations Reviewer, such Affiliate or third party is an intended third-party beneficiary of this Section 4.09, and this Agreement is intended to benefit the Affiliate or third party. The Affiliate or third party may enforce the PII related terms of this Section 4.09 against the Asset Representations Reviewer as if each were a signatory to this Agreement.
ARTICLE V.
REMOVAL, RESIGNATION
Section 5.01 Eligibility of the Asset Representations Reviewer.
The Asset Representations Reviewer must be a Person who (a) is not Affiliated with World Omni, the Depositor, the Servicer, the Indenture Trustee, the Owner Trustee or any of their Affiliates and (b) was not, and is not Affiliated with a Person that was, engaged by World Omni or any underwriter to perform any due diligence on the Receivables prior to the Closing Date.
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Section 5.02 Resignation and Removal of Asset Representations Reviewer.
(a) No Resignation. The Asset Representations Reviewer will not resign as Asset Representations Reviewer unless it determines it is legally unable to perform its obligations under this Agreement and there is no reasonable action that it could take to make the performance of its obligations under this Agreement permitted under applicable law. In such event, the Asset Representations Reviewer will deliver a notice of its resignation to the Issuer and the Servicer, together with an opinion of counsel supporting its determination.
(b) Removal. If any of the following events occur, the Issuer, by notice to the Asset Representations Reviewer, may remove the Asset Representations Reviewer and terminate its rights and obligations under this Agreement:
(i) the Asset Representations Reviewer no longer meets the eligibility requirements in Section 5.01;
(ii) the Asset Representations Reviewer breaches any of its representations, warranties, covenants or obligations in this Agreement; or
(iii) an Insolvency Event of the Asset Representations Reviewer occurs.
(c) Notice of Resignation or Removal. The Issuer will notify the Servicer, the Owner Trustee and the Indenture Trustee of any resignation or removal of the Asset Representations Reviewer.
(d) Continue to Perform After Resignation or Removal. No resignation or removal of the Asset Representations Reviewer will be effective, and the Asset Representations Reviewer will continue to perform its obligations under this Agreement, until a successor Asset Representations Reviewer has accepted its engagement according to Section 5.03(b).
Section 5.03 Successor Asset Representations Reviewer
(a) Engagement of Successor Asset Representations Reviewer. Following the resignation or removal of the Asset Representations Reviewer, the Issuer will engage a successor Asset Representations Reviewer who meets the eligibility requirements of Section 5.01.
(b) Effectiveness of Resignation or Removal. No resignation or removal of the Asset Representations Reviewer will be effective until the successor Asset Representations Reviewer has executed and delivered to the Issuer and the Servicer an agreement accepting its engagement and agreeing to perform the obligations of the Asset Representations Reviewer under this Agreement or entering into a new agreement with the Issuer on substantially the same terms as this Agreement.
(c) Transition and Expenses. If the Asset Representations Reviewer resigns or is removed, the Asset Representations Reviewer will cooperate with the Issuer and the Servicer and take all actions reasonably requested to assist the Issuer in making an orderly transition of the Asset Representations Reviewer’s rights and obligations under this Agreement to the successor Asset Representations Reviewer. The outgoing Asset Representations Reviewer will pay the reasonable expenses of transitioning the Asset Representations Reviewer’s obligations under this Agreement and preparing the successor Asset Representations Reviewer to take on the obligations on receipt of an invoice with reasonable detail of the expenses from the Issuer and the Servicer or the successor Asset Representations Reviewer.
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Section 5.04 Merger, Consolidation or Succession. Any Person (a) into which the Asset Representations Reviewer is merged or consolidated, (b) resulting from any merger or consolidation to which the Asset Representations Reviewer is a party or (c) succeeding to the business of the Asset Representations Reviewer, if that Person meets the eligibility requirements in Section 5.01, will be the successor to the Asset Representations Reviewer under this Agreement. Such Person will execute and deliver to the Issuer, the Servicer and the Administrator an agreement to assume the Asset Representations Reviewer’s obligations under this Agreement (unless the assumption happens by operation of law).
ARTICLE VI.
OTHER AGREEMENTS
Section 6.01 Independence of the Asset Representations Reviewer.
The Asset Representations Reviewer will be an independent contractor and will not be subject to the supervision of the Issuer for the manner in which it accomplishes the performance of its obligations under this Agreement. Unless expressly authorized by the Issuer, the Asset Representations Reviewer will have no authority to act for or represent the Issuer and will not be considered an agent of the Issuer. Nothing in this Agreement will make the Asset Representations Reviewer and the Issuer members of any partnership, joint venture or other separate entity or impose any liability as such on any of them.
Section 6.02 No Petition.
Each of the parties agrees that, before the date that is one year and one day (or, if longer, any applicable preference period) after payment in full of all securities issued by the Depositor, the Issuer or by a trust for which the Depositor was a depositor, it will not start or pursue against, or join any other Person in starting or pursuing against the Depositor or the Issuer, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings under any bankruptcy or similar law. This Section 6.02 will survive the termination of this Agreement.
Section 6.03 Limitation of Liability of Owner Trustee.
It is expressly understood and agreed by the parties hereto that (i) this Agreement is executed and delivered by the Trustee Bank, not individually or personally but solely as Owner Trustee, in the exercise of the powers and authority conferred and vested in it under the Trust Agreement, (ii) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, undertakings and agreements by the Trustee Bank, but is made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained shall be construed as creating any liability on the Trustee Bank, individually or personally, to perform any covenant of the Issuer, either expressed or implied, contained herein, all such liability of the Trustee Bank in its individual or personal capacity, if any, being expressly waived by the parties hereto and by any person claiming by, through or under the parties hereto, (iv) the Trustee Bank has made no investigation into the accuracy or completeness of any representations or warranties made by the Issuer in this Agreement, and (v) under no circumstances shall the Trustee Bank be personally liable for the payment of any indebtedness or expenses of the Issuer under this Agreement or any other related documents.
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Section 6.04 Termination of Agreement.
This Agreement will terminate, except for the obligations under Section 4.04 and the other obligations of the Issuer, the Servicer and the Asset Representations Reviewer specified as surviving the termination of this Agreement, on the earlier of (a) the payment in full of all outstanding Notes and the satisfaction and discharge of the Indenture, (b) the date the Issuer is terminated under the Trust Agreement and (c) the removal or resignation of the Asset Representations Reviewer in accordance with the terms of this Agreement.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section 7.01 Amendments.
(a) This Agreement may be amended by the Issuer, the Servicer and the Asset Representations Reviewer, without the consent of any of the Noteholders or the Certificateholders or any other Person, to cure any ambiguity or to correct or supplement any provisions in this Agreement or for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders or the Certificateholders; provided that such amendments require: (i) satisfaction of the Rating Agency Condition or (ii) an Officer’s Certificate of the Servicer delivered to the Issuer, the Owner Trustee and the Indenture Trustee stating that the amendment will not materially and adversely affect the interest of any Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to time by the Issuer, the Servicer and the Asset Representations Reviewer, with the consent of Holders of Notes evidencing not less than 50% of the Outstanding Amount of the Controlling Securities (unless (i) the interests of the Noteholders are not affected materially and adversely, (ii) an Officer’s Certificate of the Servicer to that effect is delivered to the Indenture Trustee by the Depositor and (iii) satisfaction of the Rating Agency Condition) and the consent of the Holders (as defined in the Trust Agreement) of Certificates evidencing not less than 50% of the percentage interest of the Certificates (unless (i) the interests of the Certificateholders are not affected materially and adversely and (ii) an Officer’s Certificate of the Servicer to that effect is delivered to the Owner Trustee by the Depositor) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders or the Certificateholders; provided, however, that no such amendment shall (a) change the date of payment of any installment of principal of or interest on any Note, or reduce the principal amount thereof, (b) change the provisions of this Agreement relating to the application of collections on, or the proceeds of the sale of, the Trust Estate to payment of principal of or interest on the Notes or (c) reduce the consent percentages in this sentence, without the consent of the Holders of all outstanding Notes and the Holders (as defined in the Trust Agreement) of all the outstanding Certificates affected thereby.
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(c) Promptly after the execution of any such amendment or consent, the Servicer shall furnish written notification of the substance of such amendment or consent to the Indenture Trustee and each of the Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders or Noteholders pursuant to this Section to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall approve the substance thereof.
(e) Prior to the execution of any amendment to this Agreement, the Owner Trustee, on behalf of the Issuing Entity, shall be entitled to receive and conclusively rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and that all conditions precedent thereto have been satisfied. The Owner Trustee may, but shall not be obligated to, enter into any such amendment which affects the Owner Trustee’s own rights, duties or immunities under this Agreement or otherwise.
Section 7.02 Assignment; Benefit of Agreement; Third Party Beneficiaries.
(a) Assignment. Except as stated in Section 5.04, this Agreement may not be assigned by the Asset Representations Reviewer without the consent of the Issuer and the Servicer.
(b) Benefit of Agreement; Third-Party Beneficiaries. This Agreement is for the benefit of and will be binding on the parties and their permitted successors and assigns. The Owner Trustee and the Indenture Trustee, for the benefit of the Noteholders, will be third-party beneficiaries of this Agreement and may enforce this Agreement against the Asset Representations Reviewer and the Servicer. No other Person will have any right or obligation under this Agreement.
Section 7.03 Notices.
(a) Notices to Parties. All notices, requests, demands, consents, waivers or other communications to or from the parties must be in writing and will be considered given:
(i) for overnight mail, on delivery or, for registered first class mail, postage prepaid, three (3) days after deposit in the mail;
(ii) for a fax, when receipt is confirmed by telephone, reply email or reply fax from the recipient;
(iii) for an email, when receipt is confirmed by telephone or reply email from the recipient; and
(iv) for an electronic posting to a password-protected website to which the recipient has access, on delivery of an email (without the requirement of confirmation of receipt) stating that the electronic posting has occurred.
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(b) Notice Addresses. Any notice, request, demand, consent, waiver or other communication will be addressed as follows: (a) in the case of the Servicer, World Omni Financial Corp., 190 Jim Moran Boulevard, Deerfield Beach, Florida 33442, Telecopy: (954) 429-2685, Attention: Treasurer, (b) in the case of the Issuing Entity or the Owner Trustee, at its Corporate Trust Office, and (c) in the case of the Asset Representations Reviewer, 1700 Lincoln Street, Suite 2600, Denver, Colorado 80203, Email: jharrison@clayton.com; with a copy to 100 Beard Sawmill Road, Suite 200, Shelton, CT 06484, Email: rharris@clayton.com, or, in each case, to another address as a party may give by notice to the other parties.
Section 7.04 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 7.05 WAIVER OF JURY TRIAL. Each party irrevocably waives, to the fullest extent permitted by law, THE right to trial by jury in legal proceeding relating to this agreement.
Section 7.06 No Waiver; Remedies. No party’s failure or delay in exercising a power, right or remedy under this Agreement will operate as a waiver. No single or partial exercise of a power, right or remedy will preclude any other or further exercise of the power, right or remedy or the exercise of any other power, right or remedy. The powers, rights and remedies under this Agreement are in addition to any powers, rights and remedies under law.
Section 7.07 Severability. If a part of this Agreement is held invalid, illegal or unenforceable, then it will be deemed severable from the remaining Agreement and will not affect the validity, legality or enforceability of the remaining Agreement.
Section 7.08 Headings. The headings in this Agreement are included for convenience and will not affect the meaning or interpretation of this Agreement.
Section 7.09 Counterparts. This Agreement may be executed in multiple counterparts. Each counterpart will be an original and all counterparts will together be one document.
[Remainder of Page Left Blank]
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IN WITNESS WHEREOF, the Issuer, the Servicer, the Administrator and the Asset Representations Reviewer have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the date first above written.
WORLD OMNI AUTO RECEIVABLES TRUST 2017-A, | ||
as Issuer | ||
By: | WELLS FARGO DELAWARE TRUST COMPANY, N.A., not in its individual capacity but solely as Owner Trustee | |
By: | /s/ Jose I. Mercado | |
Name: Jose I. Mercado | ||
Title: Vice President | ||
WORLD OMNI FINANCIAL CORP., | ||
as Servicer | ||
By: | /s/ Bryan Romano | |
Name: Bryan Romano | ||
Title: Assistant Treasurer | ||
CLAYTON FIXED INCOME SERVICES LLC, | ||
as Asset Representations Reviewer | ||
By: | /s/ Robert A. Harris | |
Name: Robert A. Harris | ||
Title:Secretary |
Schedule A
Review Materials
· | Retail Installment Sale Contract |
· | Modification Agreement or Correction Notices to the Contract |
· | Title Documents (Certificate of Title, E-Title or Application for Title) |
· | Receivable File including: |
o | Servicing System Screenshots |
o | Servicing System Comment History |
· | Data file from Servicing System |
· | List of Approved Contract Form Numbers and Revision Dates |
Sch. A
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Schedule B
Representations and Warranties and Tests
Representation
(i) Characteristics of Receivables. Each Receivable (1) (A) was originated in the United States of America by a Dealer for the retail sale of a Financed Vehicle in the ordinary course of such Dealer’s business, was fully and properly executed by the parties thereto, and was purchased by World Omni from such Dealer under an existing dealer agreement, (B) was originated by World Omni, or (C) was originated by an independent third party and acquired by World Omni, (2) contains customary and enforceable provisions such that the rights and remedies of the holder thereof are adequate for realization against the collateral of the benefits of the security, and (3) provides for level monthly payments (provided, that the payment in the first or last month in the life of the Receivable may vary from the level monthly payments and that certain of the Receivables did not require a payment to be made for up to six months from the date of execution of the contract) that fully amortize the Amount Financed by maturity and yield interest at the Annual Percentage Rate.
Documents
Retail Contract
Receivable File
Procedures to be Performed
1. | Origination of the Receivable |
A. | Confirm the contract reports a Dealer located in the United States, was signed by the Buyer, Co-buyer (if applicable) and Seller, and lists World Omni as the assignee within the assignment section |
B. | Confirm the Contract lists World Omni as the Seller or if originated by a third party, confirm the Contract was assigned to World Omni |
2. | Customary and Enforceable Provisions |
A. | Observe the Contract and confirm it was completed electronically or, if completed on paper, confirm the form number and revision date are on the List of Approved Contract Forms |
Sch. B-1
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
3. | Payment Schedule Structure |
A. | Confirm all payments are equivalent with the possible exception of the first and last month’s payments which may differ from the level monthly payment |
B. | Confirm that the product of the Number of Payments and the Amount of Payments, together with any first and last month’s payment (if applicable), equals the Total of Payments as stated within the Truth in Lending section of the contract |
C. | Confirm the Finance Charge is calculated based on the Annual Percentage Rate (APR) as stated within the Truth in Lending section of the contract |
4. | If sections (1) through (3) are confirmed, then Test Pass |
Sch. B-2
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(ii) Compliance with Law. To the best of World Omni’s knowledge, each Receivable and the sale of the Financed Vehicle complied at the time it was originated or made and, at the execution of this Agreement, complies in all material respects with all requirements of applicable federal, state and local laws and regulations thereunder, including usury laws, the federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade Commission Act, the Magnuson-Moss Warranty Act, the Consumer Financial Protection Bureau’s Regulations B and Z, and State adaptations of the National Consumer Act and of the Uniform Consumer Credit Code, and other consumer credit laws and equal credit opportunity and disclosure laws.
Documents
Retail Contract
Receivable File
Data File
Procedures to be Performed
1. | Observe the Contract and confirm it was completed electronically or, if completed on paper, confirm the form number and revision date are on the List of Approved Contract Forms. |
2. | Observe the APR disclosed on the Contract, taking into account any Amendments. Compute the APR, using the “Amount Financed,” “Number of Payments,” date of the Contract, first payment due date, and “Amount of Payments” from the Contract, taking into account any Amendments. Compare the computed APR to the APR disclosed and confirm the difference between them is within the legal tolerance of 0.125 percent. |
3. | If section (1) and (2) is confirmed, then Test Pass |
Sch. B-3
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(iii) Binding Obligation. Each Receivable represents the genuine, legal, valid and binding payment obligation in writing of the Obligor, enforceable by the holder thereof 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).
Documents
Retail Contract
Procedures to be Performed
1. | Observe the Contract and confirm it was completed electronically or, if completed on paper, confirm the form number and revision date are on the List of Approved Contract Forms |
2. | Confirm the Buyer and Co-buyer (if applicable) signed the contract |
3. | If sections (1) and (2) are confirmed, then Test Pass |
Sch. B-4
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(iv) No Government Obligor. No Receivable is due from the United States of America or any State or from any agency, department or instrumentality of the United States of America or any State.
Documents
Retail Contract
Procedures to be Performed
1. | Confirm the Buyer section of the contract includes the name of a natural person |
2. | If the Buyer section on the contract does not report a natural person’s name, confirm internet search results shown no indication the Buyer is the United States of America or any State, or any agency, department or instrumentality of the United States of America or any State |
3. | If section (1) or (2) is confirmed, then Test Pass |
Sch. B-5
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(v) Security Interest in Financed Vehicle. Immediately prior to the sale, assignment and transfer thereof, each Receivable shall be secured by a validly perfected first priority security interest in the related Financed Vehicle in favor of World Omni as secured party or all necessary and appropriate actions have been commenced that would result in the valid perfection of a first priority security interest in the Financed Vehicle in favor of the Depositor as secured party and is assignable by World Omni to the Depositor, by the Depositor to the Issuing Entity and by the Issuing Entity to the Indenture Trustee.
Documents
Retail Contract
Title Documents
Receivable File
Procedures to be Performed
1. | Confirm the title documents report World Omni, or an acceptable variation of the name, as the first lien holder |
2. | Confirm the Buyer’s name on the contract matches the name on the title documents |
3. | Confirm the Vehicle Identification Number (VIN) on the contract matches the VIN number on the title documents |
4. | If sections (1) through (3) are confirmed, then Test Pass |
Sch. B-6
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(vi) Receivables in Force. No Receivable has been satisfied, subordinated or rescinded, nor has any Financed Vehicle been released from the Lien granted by the related Receivable in whole or in part.
Documents
Receivable File
Data File
Procedures to be Performed
1. | Confirm there is no indication within the Receivable File that the Receivable was satisfied prior to the Cutoff Date |
2. | Confirm there is no indication within the Receivable File that the Receivable was subordinated or rescinded |
3. | Confirm there is no indication within the Receivable File that the Financed Vehicle has been released from the Lien in whole or in part |
4. | If sections (1) through (3) are confirmed, then Test Pass |
Sch. B-7
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(vii) No Amendments. The Servicer’s computer system does not reflect that any Receivable has been amended such that the amount of the Obligor’s scheduled payments has been increased.
Documents
Receivable File
Procedures to be Performed
1. | Confirm the scheduled monthly payment as reported within the Data File is less than or equal to the level monthly payment as reported on the contract |
2. | If section (1) is confirmed, then Test Pass |
Sch. B-8
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(viii) No Waiver. No provision of a Receivable has been waived, other than a discretionary waiver of a late payment charge or any other fees that may be collected in the ordinary course of servicing a Receivable or in connection with any extension which is reflected in the Servicer’s computer system.
Documents
Retail Contract
Receivable File
Procedures to be Performed
1. | Confirm there is no indication within the receivable file that any provision of the Receivable has been waived, so as to reduce the interest or principal balance |
2. | If section (1) is confirmed, then Test Pass |
Sch. B-9
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(ix) No Defenses. The Servicer’s computer system does not reflect that any right of rescission, setoff, counterclaim or defense has been asserted or threatened with respect to any Receivable.
Documents
Receivable File
Procedures to be Performed
1. | Confirm there is no evidence within the Receivable File that the Receivable is subject to rescission, setoff, counterclaim or defense that would cause the Receivable to become invalid |
2. | Confirm there is no indication of litigation or attorney involvement in the Receivable File |
3. | If sections (1) and (2) are confirmed, then Test Pass |
Sch. B-10
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(x) No Liens. The Servicer’s computer system does not reflect that any liens or claims have been filed for work, labor or materials relating to a Financed Vehicle that are liens prior or equal to the security interest in the Financed Vehicle granted by any Receivable.
Documents
Title Documents
Receivable File
Procedures to be Performed
1. | Confirm the title documents designate World Omni as the first lien holder and that no other senior lien holder is listed |
2. | Confirm there is no indication within the Receivable File that any liens or claims have been filed for work, labor or materials relating to the Financed Vehicle that are prior or equal to the security interest granted in the Financed Vehicle |
3. | If sections (1) and (2) are confirmed, then Test Pass |
Sch. B-11
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(xi) No Default. No Receivable has a Scheduled Payment for which more than $40.00 is more than 30 days overdue as of the Cutoff Date, and, except as permitted in this paragraph, the Servicer’s computer system does not reflect that any default, breach, violation or event permitting acceleration under the terms of any Receivable has occurred nor that a continuing condition that with notice or the lapse of time would constitute a default, breach, violation or event permitting acceleration under the terms of any Receivable has arisen; and World Omni has not waived and, except as permitted hereby, shall not waive any of the foregoing.
Documents
Receivable File
Data File
Procedures to be Performed
1. | Confirm there is no indication of any default, breach, violation or event that would permit acceleration under the terms of the Receivable |
2. | Confirm that no scheduled payment which exceeds the allowable delinquent payment amount is more than 30 days overdue as of the Cutoff Date |
3. | Confirm there is no evidence of a continuing condition which could constitute a default, breach, violation or event permitting acceleration under the terms of the Receivable |
4. | If sections (1) through (3) are confirmed, then Test Pass |
Sch. B-12
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(xii) Insurance. Under the terms of each Receivable, the related Obligor is required to maintain physical damage insurance covering the Financed Vehicle and to have World Omni named as the loss payee.
Documents
Retail Contract
Procedures to be Performed
1. | Confirm the contract contains language that requires the Obligor to obtain and maintain physical damage insurance covering the Finance Vehicle and naming either World Omni, SETF or Southeast Toyota Finance or a reasonable name variation thereof, as the loss payee |
2. | If section (1) is confirmed, then Test Pass |
Sch. B-13
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(xiii) Title. No Receivable has been sold, transferred, assigned or pledged (x) by World Omni to any Person other than the Depositor or (y) by the Depositor to any Person other than the Issuing Entity.
Documents
Retail Contract
Title Documents
Procedures to be Performed
1. | Confirm the title documents designate World Omni as the first lien holder and that no other senior lien holder is listed |
2. | Confirm there is no indication within the Receivable File that the Receivable has been sold, transferred assigned or pledged to any Person other than World Omni |
3. | If sections (1) and (2) are confirmed, then Test Pass |
Sch. B-14
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(xiv) Lawful Assignment. No Receivable has been originated in, or is subject to the laws of, any jurisdiction under which the sale, transfer and assignment of such Receivable under this Agreement or the Indenture is unlawful, void or voidable.
Documents
Retail Contract
Procedures to be Performed
1. | Observe the Contract and confirm it was completed electronically or, if completed on paper, confirm the form number and revision date are on the List of Approved Contract Forms |
2. | If section (1) is confirmed, then Test Pass |
Sch. B-15
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(xv) One Authoritative Copy or Original. There is only one “authoritative copy” of any Receivable constituting “electronic chattel paper” as defined in the UCC. There is only one executed original of any Receivable constituting “tangible chattel paper” as defined in the UCC.
Documents
Retail Contract
Procedures to be Performed
1. | For any Receivable constituting “electronic chattel paper,” confirm there is one “authoritative copy” of the Contract. For any Receivable constituting “tangible chattel paper,” confirm there is one executed original of the Contract |
2. | If section (1) is confirmed, then Test Pass |
Sch. B-16
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(xvi) Maturity of Receivables. Each Receivable has a final maturity date not later than July 28, 2023.
Documents
Retail Contract
Procedures to be Performed
1. | Confirm the scheduled maturity date, as of the Cutoff Date, is on or before the latest allowable maturity date |
2. | If section (1) is confirmed, then Test Pass |
Sch. B-17
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(xvii) Scheduled Payments. As of the Cutoff Date, each Receivable had a first scheduled due date on or prior to the end of the third month immediately following the Cutoff Date.
Documents
Retail Contract
Procedures to be Performed
1. | Confirm the first scheduled due date on the contract is no later than the last day of the last allowable month after the Cutoff Date |
2. | If section (1) is confirmed, then Test Pass |
Sch. B-18
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(xviii) Outstanding Principal Balance. Each Receivable has an outstanding principal balance of at least $500.00.
Documents
Data File
Procedures to be Performed
1. | Confirm the unpaid balance as stated within the Data File is greater than or equal to the minimum allowable outstanding principal balance |
2. | If section (1) is confirmed, then Test Pass |
Sch. B-19
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(xix) No Bankruptcies. No Obligor on any Receivable was noted in the Servicer’s computer system as having filed for bankruptcy.
Documents
Receivable File
Procedures to be Performed
1. | Confirm there is no indication within the Receivable File that the Receivable was the subject of any bankruptcy proceeding or insolvency proceeding as of the Cutoff Date |
2. | If section (1) is confirmed, then Test Pass |
Sch. B-20
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(xx) No Repossessions. No Receivable was secured by a Financed Vehicle that had been repossessed without reinstatement of the related contract.
Documents
Receivable File
Data File
Procedures to be Performed
1. | Confirm the status of the Financed Vehicle is not reported as repossessed as of the Cutoff Date |
2. | If the Financed Vehicle is reported as repossessed, confirm the Obligor subsequently reinstated the contract prior to the Cutoff Date |
3. | If sections (1) or (2) is confirmed, then Test Pass |
Sch. B-21
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(xxi) Chattel Paper. Each Receivable constitutes “electronic chattel paper” or “tangible chattel paper” as defined in the UCC.
Documents
Retail Contract
Title Documents
Procedures to be Performed
1. | Observe the Contract and confirm it was completed electronically or, if completed on paper, confirm the form number and revision date are on the List of Approved Contract Forms |
2. | Confirm there is a signature under the appropriate Buyer, Co-buyer (if applicable) and Seller signature lines within the contract |
3. | Confirm the contract reports an amount financed greater than zero |
4. | Confirm there is documentation of a lien against the Financed Vehicle |
5. | If sections (1) through (4) are confirmed, then Test Pass |
Sch. B-22
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.
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World Omni Financial Corp. Retail Agreed Upon Procedures |
Representation
(xxii) Prepayment. Each Receivable provides that a prepayment by the related Obligor will fully pay the principal balance and accrued interest through the date of prepayment based on such Receivable’s Annual Percentage Rate.
Documents
Retail Contract
Procedures to be Performed
1. | Confirm the contract contains a prepayment disclosure |
2. | If section (1) is confirmed, then Test Pass |
Sch. B-23
© 2016 Clayton Fixed Income Services LLC. All rights reserved.
This material is confidential and may not be copied, used or distributed without the written permission of Clayton Fixed Income Services LLC.