Exhibit 1.1
Execution Copy
WORLD OMNI 1998-A AUTOMOBILE LEASE SECURITIZATION TRUST
$430,000,000
Floating Rate Automobile Lease Asset Backed Notes, Class A-1
$440,000,000
Floating Rate Automobile Lease Asset Backed Notes, Class A-2
$410,000,000
Floating Rate Automobile Lease Asset Backed Notes, Class A-3
$351,383,000
Floating Rate Automobile Lease Asset Backed Notes, Class A-4
UNDERWRITING AGREEMENT
November 6, 1998
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
As Representative of the
Several Underwriters
World Financial Center
North Tower
New York, New York 10281-1201
Dear Sirs:
1. Introductory. World Xxxx Xxxxx Securitization L.P., a Delaware
limited partnership (the "Transferor"), Auto Lease Finance L.P., a Delaware
limited partnership ("ALF L.P."), and World Omni Financial Corp., a Florida
corporation ("World Omni"), hereby confirm their respective agreements with you
and each of the other underwriters named in Schedule I hereto (the
"Underwriters"), for whom you are acting as representative (the
"Representative"), with respect to the sale by the Transferor to the
Underwriters of $430,000,000 aggregate principal amount of Floating Rate
Automobile Lease Asset Backed Notes, Class A-1 (the "Class A-1 Notes"),
$440,000,000 aggregate principal amount of Floating Rate Automobile Lease Asset
Backed Notes, Class A-2 (the "Class A-2 Notes"), $410,000,000 aggregate
principal amount of Floating Rate Automobile Lease Asset Backed Notes, Class A-3
(the "Class A-3 Notes") and $351,383,000 aggregate principal amount of Floating
Rate Automobile Lease Asset Backed Notes, Class A-4 (the "Class A-4 Notes" and,
together with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes,
the "Class A Notes") of the World Omni 1998-A Automobile Lease Securitization
Trust (the "Trust") under the terms and conditions herein contained. The Class
A-1 Notes will bear an annual percentage rate equal to One-Month LIBOR (as
defined in the Prospectus) plus 0.35%. The Class A-2 Notes will bear an annual
percentage rate equal to One-Month LIBOR (as defined in the Prospectus) plus
0.40%. The Class A-3 Notes will bear an annual percentage rate equal to
One-Month LIBOR (as defined in the Prospectus) plus 0.45%. The Class A-4 Notes
will bear an annual percentage rate equal to One-Month LIBOR (as defined in the
Prospectus) plus 0.55%. The sole general partner of the Transferor is World Omni
Lease Securitization LLC (as successor by merger to World Omni Lease
Securitization, Inc.) ("XXXX LLC" or the "XXXX XX General Partner"), a Delaware
limited liability company and a wholly owned, special purpose finance subsidiary
of World Omni, and the sole limited partner of the Transferor is World Omni (in
such capacity, the "XXXX XX Limited Partner"). The sole general partner of XXX
X.X. is Auto Lease Finance LLC (as successor by merger to Auto Lease Finance,
Inc.) ("ALF LLC" or the "ALF L.P. General Partner"), a Delaware limited
liability company and a wholly owned, special purpose finance subsidiary of
World Omni, and the sole limited partner of XXX X.X. is World Omni (in such
capacity, the "ALF L.P. Limited Partner").
Simultaneously with the issuance of the Class A Notes, the Transferor
will cause the Trust to issue $95,592,000 aggregate principal amount of
Automobile Lease Asset Backed Notes, Class B (the "Class B Notes" and, together
with the Class A Notes, the "Notes"). The Notes will be issued pursuant to an
indenture, dated as of October 1, 1998 (the "Indenture"), between the Trust and
The Bank of New York, as indenture trustee (in such capacity, the "Indenture
Trustee"). The Transferor will own the undivided equity interest in the Trust
(the "Transferor Interest"). The Transferor or an affiliate thereof will
initially own the Class B Notes. The Transferor Interest will be evidenced by a
certificate (the "Transferor Certificate") issued pursuant to a securitization
trust agreement, dated as of October 1, 1998 (the "Securitization Trust
Agreement"), among the Transferor, PNC Bank, Delaware ("PNC Bank"), as owner
trustee (in such capacity, the "Owner Trustee") and the Indenture Trustee. The
Class B Notes will be subordinated to the Class A Notes, and the Transferor
Certificate will be subordinated to the Notes, in each case to the extent
described in the Securitization Trust Agreement and the Indenture. Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in the Indenture.
The property of the Trust will consist primarily of a special unit of
beneficial interest (the "SUBI"), which, in turn, will evidence a beneficial
interest in certain specified assets of World Omni LT, an Alabama business trust
(the "Origination Trust"), payments to the Trust by Xxxxxxx Xxxxx Derivative
Products AG (the "Class A Swap Counterparty") pursuant to the interest rate swap
agreement (the "Class A Interest Rate Swap") between the Swap Counterparty and
the Owner Trustee dated November 19, 1998 and monies on deposit in the Reserve
Fund and in certain other accounts (collectively, the "SUBI Assets"). The assets
of the Origination Trust (the "Origination Trust Assets") will consist primarily
of retail closed-end lease contracts assigned to the Origination Trust by motor
vehicle dealers in the World Omni network of dealers, the automobiles and light
duty trucks relating thereto and the proceeds thereof, and payments made under
certain insurance policies relating to such lease contracts, the related lessees
or such leased vehicles, including payments made under a residual value
insurance policy, dated as of October 1, 1998 (the "Residual Value Insurance
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Policy") issued by Federal Insurance Company, a wholly owned subsidiary of The
Chubb Corporation (the "Insurer") in respect of the Leased Vehicles. The SUBI
will not evidence a direct interest in the SUBI Assets, nor will it represent a
beneficial interest in any Origination Trust Assets other than the SUBI Assets.
The Owner Trustee and the Trust will pledge the SUBI and the other property of
the Trust to the Indenture Trustee to secure the Notes pursuant to the
Indenture.
The SUBI will be evidenced by a certificate (the "SUBI Certificate")
issued to XXX X.X. by the Origination Trust pursuant to a trust agreement as
amended and restated as of July 1, 1994, as amended by Amendment No. 1 thereto
dated as of November 1, 1994, and as supplemented by a supplement dated as of
October 1, 1998 (collectively, the "SUBI Trust Agreement"), in each case among
ALF L.P., as initial grantor and initial beneficiary, VT Inc., as trustee (the
"Origination Trustee"), and (for certain limited purposes only) U.S. Bank
National Association, as trust agent (in such capacity, the "Trust Agent"). The
SUBI Certificate will be sold by XXX X.X. to the Transferor pursuant to the SUBI
certificate purchase and sale agreement, dated as of October 1, 1998 (the
"Certificate Purchase and Sale Agreement"), between the Transferor and ALF L.P.
The Origination Trust Assets (including the SUBI Assets) will be serviced by
World Omni pursuant to a second amended and restated servicing agreement dated
as of July 1, 1994, as amended and as supplemented by a servicing supplement
dated as of October 1, 1998 (collectively, the "Servicing Agreement"), in each
case between the Origination Trustee and World Omni. The Securitization Trust
Agreement, the SUBI Trust Agreement, the Certificate Purchase and Sale
Agreement, the Indenture, the Servicing Agreement, the Class A Interest Rate
Swap, the backup security agreement, dated as of October 1, 1998 (the "Backup
Security Agreement"), among World Omni, ALF L.P., the Origination Trustee, the
Transferor, the Owner Trustee and the Indenture Trustee, the support agreement,
dated as of October 1, 1995, as amended (the "Support Agreement"), by World Omni
in favor of the Transferor, the Amended and Restated Intercreditor Agreement,
dated as of December 31, 1997, among World Omni, XXX X.X., the Transferor, the
Indenture Trustee, the Origination Trustee, the Trust Agent, the Owner Trustee
and the other parties named in Appendix A thereto, together with an accession
agreement thereto (collectively, the "Intercreditor Agreement"), between the
Indenture Trustee and the Transferor, and the Reimbursement and Indemnification
Agreement, dated as of October 1, 1998, between World Omni and the Insurer, are
referred to herein collectively as the "Basic Documents".
2. Representations and Warranties of the Transferor, XXX X.X. and World
Omni.
(a) Each of the Transferor, XXX X.X. and World Omni, jointly and
severally, represents and warrants to, and agrees with, each of the Underwriters
that:
(i) A registration statement on Form S-1 (No. 333-63367),
including a form of prospectus, relating to the registration of the
Class A Notes has been filed with the Securities and Exchange
Commission (the "Commission") and, the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the
Commission, either (1) has been declared effective under the Securities
Act of 1933, as amended (the "Act"), and is not proposed to be amended
or (2) is proposed to be amended by amendment or post-effective
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amendment. If the Transferor or ALF L.P. does not propose to amend such
registration statement and if any post-effective amendment to such
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent such
post-effective amendment has been declared effective by the Commission.
For purposes of this Agreement, "Effective Time" means if the
Transferor and ALF L.P. have advised the Representative that they (1)
do not propose to amend such registration statement, the date and time
as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or (2) propose to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by
the Commission. "Effective Date" means the date of the Effective Time.
Such registration statement, as amended at the Effective Time,
including all information, if any, deemed to be a part of such
registration statement as of the Effective Time pursuant to Rule
430A(b) under the Act, and including the exhibits thereto, is
hereinafter referred to as the "Registration Statement", and the form
of prospectus relating to the Class A Notes, in the form transmitted to
the Commission for filing pursuant to and in accordance with Rule
424(b) under the Act ("Rule 424(b)"), or (if no such filing is
required) as included in the Registration Statement, is hereinafter
referred to as the "Prospectus". The Prospectus delivered to you for
use in connection with the offering of the Class A Notes will be
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval ("XXXXX") system, except to the extent permitted by
Regulation S-T.
(ii) If the Effective Time is prior to the execution and
delivery of this Agreement: (A) on the Effective Date, the Registration
Statement conformed, and on the date of this Agreement the Registration
Statement will conform in all material respects with the requirements
of the Act and the rules and regulations of the Commission promulgated
under the Act (the "Rules and Regulations") and at such times did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (B) on the date of this
Agreement, at the time of the filing of the Prospectus pursuant to Rule
424(b) and at the Closing Date (as such term is defined in Section 3
hereof), the Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations and does not
include, or will not include, any untrue statement of a material fact,
nor does the Prospectus omit, nor will it omit, any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the
Effective Time is subsequent to the execution and delivery of this
Agreement: (A) on the Effective Date, the Registration Statement and
the Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations and the
Registration Statement will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
(B) on the Effective Date, at the time of the filing of the Prospectus
pursuant to Rule 424(b), if required, and at the Closing Date, the
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Prospectus will not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The two immediately preceding sentences do
not apply to statements in or omissions from the Registration Statement
or Prospectus based upon written information furnished to the
Transferor and XXX X.X. by any Underwriter through the Representative
specifically for use therein. The Prospectus delivered to you for use
in connection with the offering of the Class A Notes will be identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to the XXXXX system, except to the extent permitted
by Regulation S-T.
(iii) The Basic Documents, the SUBI Certificate and the
Residual Value Insurance Policy conform in all material respects to the
descriptions thereof and the statements in relation thereto contained
in the Prospectus; the SUBI Certificate has been duly and validly
authorized and, when executed, issued, authenticated and delivered in
accordance with the SUBI Trust Agreement, will be duly and validly
issued and outstanding and entitled to the benefits of the SUBI Trust
Agreement.
(iv) The Notes and the Transferor Certificate conform in all
material respects to the description thereof and the statements in
relation thereto contained in the Prospectus; the Notes and the
Transferor Certificate have been duly and validly authorized and, when
executed, issued, authenticated and delivered in accordance with the
Indenture and the Securitization Trust Agreement, respectively, and, in
the case of the Class A Notes, when delivered to the Underwriters,
against payment of the consideration specified herein, will be duly and
validly issued and outstanding and entitled to the benefits of the
Indenture.
(v) None of the Transferor, World Omni, XXXX LLC, ALF LLC, XXX
X.X., the Origination Trust or the Trust is now or, as a result of the
transactions contemplated by this Agreement, will become, an
"investment company", nor is any of them "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act").
(vi) Each of the Contracts and Leased Vehicles allocated as a
SUBI Asset on the Closing Date or on the related Transfer Date will
meet the eligibility criteria for selection described in the SUBI Trust
Agreement.
(vii) Each Initial Contract is, and each Subsequent Contract
will be, in substantially one of the forms attached as an Exhibit to
the SUBI Trust Agreement and constitutes or will constitute on the
related Transfer Date the legal, valid, binding and enforceable
agreement of the parties thereto; and each Contract complies or will
comply on the Closing Date or on the related Transfer Date in all
material respects as to content and form with all applicable state and
federal laws, including without limitation, consumer protection laws.
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(viii) At or prior to the Closing Date, the Origination
Trustee will have allocated Contracts and Leased Vehicles as SUBI
Assets that have an Aggregate Net Investment Value as of the Initial
Cutoff Date equal to $1,202,622,476.
(b) The Transferor and World Omni, as the XXXX XX Limited Partner, as
the XXX X.X. Limited Partner and on behalf of XXXX LLC as the XXXX XX General
Partner and on behalf of ALF LLC as the XXX X.X. General Partner, jointly and
severally represent and warrant to, and agree with, each of the Underwriters
that:
(i) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise set forth therein, (A) there has been no material adverse
change or development resulting in a prospective material adverse
change in the condition, financial or otherwise, or business prospects,
of the Transferor, the XXXX XX General Partner, XXX X.X. or the ALF
L.P. General Partner, whether or not arising in the ordinary course of
business and (B) there have been no transactions entered into by the
Transferor, the XXXX XX General Partner, XXX X.X. or the ALF L.P.
General Partner, other than those in the ordinary course of their
respective businesses, that are material with respect to the
Transferor, the XXXX XX General Partner, XXX X.X. or the ALF L.P.
General Partner.
(ii) Each of the Transferor and XXX X.X. has been duly formed
and is validly existing as a limited partnership under the Delaware
Revised Uniform Limited Partnership Act, 6 Del. C. ? 17-101 et seq.
(the "Delaware Act"), and all filings required at the date hereof under
the Delaware Act with respect to the due formation and valid existence
of the Transferor and ALF L.P. as a limited partnership have been made;
each of the Transferor and ALF L.P. has all requisite power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus or in the World Omni Lease
Securitization L.P. Amended and Restated Limited Partnership Agreement,
dated as of July 1, 1994, as amended by that certain Assignment of
General Partnership Interest and Amendment to Amended and Restated
Agreement of Limited Partnership dated as of September 23, 1998 (the
"XXXX LLC Partnership Agreement"), between the XXXX XX General Partner
and the XXXX XX Limited Partner or the Auto Lease Finance L.P. Amended
and Restated Limited Partnership Agreement, dated as of July 1, 1994 as
amended by that certain Assignment of General Partnership Interest and
Amendment to Amended and Restated Agreement of Limited Partnership
dated as of September 23, 1998 (the "ALF LLC Partnership Agreement"
and, together with the XXXX LLC Partnership Agreement, the "Partnership
Agreements"), between the ALF L.P. General Partner and the ALF L.P.
Limited Partner, as the case may be, and to enter into and to perform
its obligations under the related Partnership Agreement, this
Agreement, each Basic Document to which the Transferor or ALF L.P. is a
party or by which it may be bound, the Notes and the Transferor
Certificate; each of the Transferor and ALF L.P. is duly qualified or
registered as a foreign partnership to transact business and is in good
standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership of
property or the conduct of business, except where the failure to so
qualify would not have a material adverse effect on its condition,
financial or otherwise, or business prospects.
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(iii) The XXXX XX General Partner is the sole general partner
of the Transferor and the XXXX XX Limited Partner is the sole limited
partner of the Transferor and, at the Closing Date, each of the XXXX XX
General Partner and the XXXX XX Limited Partner will own its respective
partnership interest in the Transferor (each of which is a
nontransferable interest to the extent provided under the XXXX LLC
Partnership Agreement) free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest
(collectively, "Liens") except as permitted by the Basic Documents.
(iv) The ALF L.P. General Partner is the sole general partner
of XXX X.X. and the ALF L.P. Limited Partner is the sole limited
partner of XXX X.X. and, at the Closing Date, each of the ALF L.P.
General Partner and the ALF L.P. Limited Partner will own its
respective partnership interests in ALF L.P. (each of which is a
nontransferable interest to the extent provided under the ALF LLC
Partnership Agreement) free and clear of any Lien except as permitted
by the Basic Documents.
(v) None of the Transferor, the XXXX XX General Partner, XXX
X.X. or the ALF L.P. General Partner is in violation of its
organizational or charter documents, limited liability company
agreement or the related Partnership Agreement, as the case may be, or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it may be bound, or to which any of its
properties or assets is subject; the execution, delivery and
performance by each of the Transferor, the XXXX XX General Partner, XXX
X.X. and the ALF L.P. General Partner, as the case may be, of this
Agreement, the related Partnership Agreement, each Basic Document to
which it is a party, the Notes and the Transferor Certificate, the
consummation of the transactions contemplated herein and therein and
compliance by it with its obligations hereunder and thereunder have
been duly and validly authorized by all necessary action (corporate or
otherwise) and will not conflict with or constitute a breach of or
default under, or result in the creation or imposition of any Lien
(except as permitted by the Basic Documents) upon any of its property
or assets pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it may be a party,
by which it may be bound or to which any of its properties or assets is
subject, nor will such action result in any violation of the provisions
of its charter or organizational documents, bylaws or the related
Partnership Agreement, or any applicable law, administrative regulation
or administrative or court decree.
(vi) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending
or, to the knowledge of any of the Transferor, the XXXX XX General
Partner, the XXXX XX Limited Partner, XXX X.X., the ALF L.P. General
Partner, the ALF L.P. Limited Partner and World Omni, threatened,
against or affecting the Transferor, the XXXX XX General Partner, XXX
X.X. or the ALF L.P. General Partner that is required to be disclosed
in the Registration Statement and that is not disclosed or that might
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result in any material adverse change in its condition, financial or
otherwise, or in its earnings, business affairs or business prospects
or that might materially and adversely affect its properties or assets
or that might materially and adversely affect the consummation of this
Agreement, either Partnership Agreement or any Basic Document to which
any of such entities is a party or by which it may be bound; all
pending legal or governmental proceedings to which the Transferor, the
XXXX XX General Partner, ALF L.P. or the ALF L.P. General Partner is a
party or of which any of their respective properties or assets is the
subject that are not described in the Registration Statement, including
ordinary routine litigation incidental to their respective businesses,
are, considered in the aggregate, not material; and there are no
contracts or documents of the Transferor, the XXXX XX General Partner,
the XXXX XX Limited Partner, XXX X.X., the ALF L.P. General Partner or
the ALF L.P. Limited Partner that are required to be filed as exhibits
to the Registration Statement by the Act or by the Rules and
Regulations that have not been so filed.
(vii) Except such as may be required by the Act, the Rules and
Regulations or state securities laws, no authorization, approval or
consent of any court, governmental authority or agency or any other
Person is necessary in connection with (A) the issuance of the SUBI
Certificate, (B) the issuance of the Notes and the Transferor
Certificate or the offering and sale of the Notes, (C) the execution,
delivery and performance by the Transferor or ALF L.P. of this
Agreement, any Basic Document to which it is a party, the Notes or the
Transferor Certificate or (D) the consummation by the Transferor or ALF
L.P. of the transactions contemplated hereby or thereby, except such
authorizations, approvals or consents as will have been obtained and
are in full force and effect as of the Closing Date.
(viii) Each of the Transferor, the XXXX XX General Partner,
XXX X.X. and the ALF L.P. General Partner possesses all material
certificates, authorities, licenses and permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies as
are necessary to conduct the business now operated by it, and none of
such entities has received notice of any proceedings relating to the
revocation or modification of any such certificate, authority, license
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely
affect its condition, financial or otherwise.
(ix) This Agreement has been duly executed and delivered by
the XXXX XX General Partner for the Transferor and by the ALF L.P.
General Partner for XXX X.X.
(x) As of the Closing Date, each of the Basic Documents to
which any of the Transferor, the XXXX XX General Partner, XXX X.X. or
the ALF L.P. General Partner is a party and the XXXX LLC Partnership
Agreement or the ALF LLC Partnership Agreement, as the case may be, has
been duly executed and delivered by each such entity, and, assuming the
due authorization, execution and delivery thereof by the other parties
thereto, will constitute the legal, valid and binding agreement of the
Transferor, the XXXX XX General Partner, XXX X.X. or the ALF L.P.
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General Partner, as the case may be, enforceable in accordance with its
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting enforcement of creditors' rights generally and by
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(xi) The Transferor will use the proceeds of the Class A Notes
as described in the Prospectus under the caption "Use of Proceeds".
(xii) As of the Closing Date, the representations and
warranties of each of the Transferor, the XXXX XX General Partner, XXX
X.X. and the ALF L.P. General Partner in the related Partnership
Agreement and in each Basic Document to which it is a party and in
Officer's Certificates of any of the Transferor, the XXXX XX General
Partner, XXX X.X. and the ALF L.P. General Partner delivered on the
Closing Date or on each Transfer Date, as the case may be, will be true
and correct, and each Underwriter may rely on such representations and
warranties as if they were set forth herein in full.
(xiii) None of the Transferor, the XXXX XX General Partner,
the XXXX XX Limited Partner, XXX X.X., the ALF L.P. General Partner or
the ALF L.P. Limited Partner conducts business or has affiliates who
conduct business in Cuba or with the government of Cuba within the
meaning of Section 517.075 of the Florida Securities and Investors
Protection Act or Regulation Section 3E-900.001 promulgated thereunder.
(c) World Omni, on its own behalf and on behalf of ALF LLC, XXXX LLC
and the Origination Trustee, each to the extent indicated below, represents and
warrants to, and agrees with, each of the Underwriters that:
(i) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise set forth therein, (A) there has been no material adverse
change or development resulting in a prospective material adverse
change in the condition, financial or otherwise, or in the earnings or
business affairs of the Origination Trustee (in its capacity as trustee
of the Origination Trust) or World Omni and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of
business and (B) there have been no transactions entered into by the
Origination Trustee (in its capacity as trustee of the Origination
Trust), World Omni or any other subsidiary of World Omni, other than
those in the ordinary course of business, that are material with
respect to the condition, financial or otherwise, or the earnings or
business affairs of the Origination Trustee (in its capacity as trustee
of the Origination Trust) or World Omni and its subsidiaries considered
as one enterprise.
(ii) World Omni has been duly incorporated, is current in the
payment of taxes to the State of Florida and fees to the Florida
Department of State and its status is "active"; World Omni has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter
into and to perform its obligations under this Agreement, the
Partnership Agreements and each Basic Document to which World Omni is a
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party or by which it may be bound; and World Omni is duly qualified as
a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify would not have a
material adverse effect on its condition, financial or otherwise, or
its earnings, business affairs or business prospects or its ability to
perform its obligations under each Basic Document to which it is a
party or by which it may be bound.
(iii) Each of XXXX LLC and ALF LLC has been duly incorporated
and is validly existing as a limited liability company in good standing
under the laws of the State of Delaware, in each case with power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and to
perform its obligations under each Basic Document to which it is a
party or by which it may be bound; each of XXXX LLC and ALF LLC is duly
qualified as a foreign limited liability company to transact business
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on its
condition, financial or otherwise, or its earnings or business affairs;
all of the issued and outstanding membership interests of each of XXXX
LLC and ALF LLC is owned by World Omni, free and clear of Liens and
neither XXXX LLC nor ALF LLC has any subsidiaries. Each of XXXX LLC and
ALF LLC is current in the payment of any taxes required to be paid by
each of XXXX LLC and ALF LLC.
(iv) The Origination Trust has been qualified as a business
trust under applicable Alabama law and all filings required to be made
in respect of the Origination Trust's status as a business trust under
the laws of each state in which such filings are required have been
made and are in full force and effect on the Closing Date, except where
the failure so to file would not have a material adverse effect on its
condition, financial or otherwise, or its earnings, business affairs or
business prospects or its ability to perform its obligations under each
Basic Document to which it is a party or by which it may be bound.
(v) World Omni is not in violation of its organizational or
charter documents, bylaws or either Partnership Agreement, or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it may be bound, or to which any of its property
or assets is subject; the execution, delivery and performance by World
Omni of this Agreement, each Partnership Agreement and each Basic
Document to which it is a party and the consummation of the
transactions contemplated herein and therein and compliance by it with
its obligations hereunder and thereunder have been duly and validly
authorized by all necessary action (corporate or otherwise) and will
not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any Lien (except as permitted
by the Basic Documents) upon any of its properties or assets pursuant
10
to, any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it may be
bound, or to which any of its properties or assets is subject, nor will
such action result in any violation of the provisions of its charter or
organizational documents, bylaws or each Partnership Agreement, as the
case may be, or any applicable law, administrative regulation or
administrative or court decree.
(vi) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of World Omni, threatened against or affecting
World Omni or the Origination Trustee (in its capacity as trustee of
the Origination Trust), that is required to be disclosed in the
Registration Statement and that is not disclosed or that might result
in any material adverse change in its condition, financial or
otherwise, or in its earnings, business affairs or business prospects
or that might materially and adversely affect its properties or assets
or that might materially and adversely affect the consummation of this
Agreement, either Partnership Agreement or any Basic Document to which
it is a party or by which it may be bound; and all pending legal or
governmental proceedings to which World Omni or the Origination Trustee
(in its capacity as trustee of the Origination Trust) is a party or of
which any of their respective properties or assets is the subject that
are not described in the Prospectus, including ordinary routine
litigation incidental to their respective businesses, are, considered
in the aggregate, not material.
(vii) No authorization, approval or consent of any court,
governmental authority or agency or any other Person is necessary in
connection with the execution, delivery and performance by World Omni,
ALF LLC, XXXX LLC or the Origination Trustee (in its capacity as
trustee of the Origination Trust) of this Agreement, each applicable
Partnership Agreement or any Basic Document to which any of them is a
party or the consummation by any of them of the transactions
contemplated hereby or thereby, except such authorizations, approvals
or consents as will have been obtained and are in full force and effect
as of the Closing Date.
(viii) Each of World Omni and the Origination Trustee (in its
capacity as trustee of the Origination Trust) possesses all material
certificates, authorities, licenses or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies as
are necessary to conduct the business now operated by it, and neither
of such entities has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority, license
or permit that, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely
affect its condition, financial or otherwise, or its earnings, business
affairs or business prospects or its ability to perform its obligations
under each Basic Document to which it is a party or by which it may be
bound.
(ix) This Agreement has been duly executed and delivered by
World Xxxx.
(x) As of the Closing Date, each Basic Document to which World
Omni is a party and each Partnership Agreement has been duly executed
and delivered by World Omni and, assuming the due authorization,
11
execution and delivery thereof by the other parties thereto, will
constitute the legal, valid and binding agreement of World Omni,
enforceable in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(xi) At the time of execution and delivery of the 1998-A SUBI
Supplement on the Closing Date, the Origination Trustee on behalf of
the Origination Trust will have good and marketable title to the
Initial Contracts, the related Contract Rights, the Initial Leased
Vehicles and other rights relating to the Initial Contracts and the
Initial Leased Vehicles being allocated as SUBI Assets pursuant
thereto, free and clear of Liens (except as permitted by the Basic
Documents and other than the administrative lien in favor of Bank of
America Trust Company of Florida, N.A. or AL Holding Corp. (the
"Administrative Lien")) and will not have assigned to any Person any of
its right, title or interest in any such Contracts, Contract Rights,
Leased Vehicles or other rights, or shall have obtained the release of
any such prior assignment.
(xii) On each Transfer Date the Origination Trustee on behalf
of the Origination Trust will have good and marketable title to the
related Subsequent Contracts, the related Contract Rights, the related
Subsequent Leased Vehicles and other rights relating to such Subsequent
Contracts and Subsequent Leased Vehicles being allocated as SUBI Assets
pursuant thereto, free and clear of Liens (other than the
Administrative Lien), and will not have assigned to any Person any of
its right, title or interest in any such Subsequent Contracts, Contract
Rights, Subsequent Leased Vehicles or other rights, or shall have
obtained the release of any such prior assignment.
(xiii) As of the Closing Date, the representations and
warranties of World Omni in the Partnership Agreements and in each
Basic Document to which it is a party and in Officer's Certificates of
World Omni delivered on the Closing Date or on each Transfer Date, as
the case may be, will be true and correct, and each Underwriter may
rely on such representations and warranties as if they were set forth
herein in full.
(xiv) At or prior to the Closing Date, World Omni, as Servicer
under the Servicing Agreement, has made the appropriate allocation of
assets within the estate of the Origination Trust to the SUBI Assets
required by the SUBI Trust Agreement.
(xv) As of the Closing Date, the Origination Trustee has not
assigned to any Person any of its right, title or interest in any of
the Contracts, Contract Rights, Leased Vehicles or other related rights
constituting the SUBI Assets, or has obtained the release of each such
prior assignment.
(xvi) On each Transfer Date the Origination Trustee will not
have assigned to any Person any of its right, title or interest in any
of the related Subsequent Contracts, Contract Rights, Subsequent Leased
Vehicles or other related rights constituting the SUBI Assets, or shall
have obtained the release of each such prior assignment.
12
(d) Any Officer's Certificate signed by any officer of the Transferor,
World Omni, XXXX LLC, ALF LLC or XXX X.X. and delivered to the Representative or
counsel for the Underwriters shall be deemed a representation and warranty of
the Transferor, World Omni, XXXX LLC, ALF LLC or ALF L.P., as the case may be,
to each Underwriter as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Class A Notes. On the basis of
and in reliance on the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth, the
Transferor agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter, severally and not jointly, agrees to purchase from the
Transferor the aggregate principal amount of each Class of Class A Notes set
forth in Schedule I opposite the name of such Underwriter, at a purchase price
equal to the following percentages of the aggregate initial principal balances
thereof, (i) in the case of the Class A-1 Notes, 99.810%, (ii) in the case of
the Class A-2 Notes, 99.795%, (iii) in the case of the Class A-3 Notes, 99.785%
and (iv) in the case of the Class A-4 Notes, 99.765%.
Each Class of Class A Notes will initially be represented by one or
more notes registered in the name of Cede & Co., as the nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of each
Class of Class A Notes will be represented by book entries on the records of DTC
and participating members thereof. Definitive instruments evidencing the Class A
Notes will be available only under the limited circumstances specified in the
Indenture.
The Transferor will deliver the Class A Notes to the Representative for
the respective accounts of the Underwriters, against payment of the purchase
price therefor in immediately available funds payable to the order of the
Transferor, at the office of Xxxxxxxx & Xxxxxxxx, 000 Xxxxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000-5901 (or at such other location as agreed upon among the
Transferor, ALF L.P., World Omni and the Representative) at 10:00 A.M., New York
time, on November 19, 1998, or at such other time not later than five full
business days thereafter, as the Transferor, XXX X.X., World Omni and the
Representative determine, such time being herein referred to as the "Closing
Date". The instruments evidencing the Notes and the Transferor Certificate will
be made available for inspection at the above offices of Xxxxxxxx & Xxxxxxxx (or
at such other location agreed upon among the Transferor, ALF L.P., World Omni
and the Representative) at least 24 hours prior to the Closing Date.
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), the Transferor, ALF L.P., World Omni and the
Underwriters have agreed that the Closing Date will be not less than nine
business days following the date hereof. The Transferor, XXX X.X., World Omni
and the Underwriters further agree that upon receipt by an investor who has
received an electronic Prospectus or a request by such investor's representative
(whether such request is delivered to an Underwriter, the Transferor or ALF
L.P.) during the period during which there is an obligation to deliver a
Prospectus, the Underwriters will promptly deliver or cause to be delivered
without charge, a paper copy of the Prospectus.
13
4. Certain Agreements of the Underwriters.
(a) It is understood that the Underwriters propose to offer the Class A
Notes for sale to the public as set forth in the Prospectus.
(b) The Underwriters covenant and agree that prior to the date which is
one year and one day after the last date upon which (i) each Class of Notes has
been paid in full, and (ii) all obligations due under any other Securitized
Financing have been paid in full, the Underwriters will not institute against,
or join any other Person in instituting against, XXX X.X. any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceeding under any federal or state bankruptcy or similar law. The foregoing
shall not limit the right of any Underwriter to file any claim in or otherwise
take actions with respect to any such proceeding instituted by any Person not
under such a constraint.
(c) Until the Representative informs the Transferor in writing that all
of the Class A Notes have been sold by the Underwriters, each Underwriter
covenants and agrees to provide to the Transferor each day, with respect to
sales of the Class A Notes made by such Underwriter on such date at any price
other than the public offering price set forth on the cover page of the
Prospectus, the information in writing (which may be in the form of a telecopy)
necessary to enable the Transferor to prepare and file or transmit for filing
with the Commission the information requested by the Commission to be filed with
respect to the distribution of the Class A Notes.
5. Certain Agreements of the Transferor, XXX X.X. and World Omni. Each
of the Transferor, XXX X.X. and World Omni jointly and severally covenants and
agrees with each of the Underwriters that:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Transferor and XXX X.X. will file the
Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by the
Representative, subparagraph (4)) of Rule 424(b), not later than the
second business day following the execution and delivery of this
Agreement. The Transferor and XXX X.X. will advise the Representative
promptly of any such filing pursuant to Rule 424(b).
(b) The Transferor and XXX X.X. will advise the Representative
promptly of any proposal to amend or supplement the registration
statement as filed or the related prospectus or the Registration
Statement or the Prospectus and will not effect any such amendment or
supplement without the consent of the Representative. The Transferor
and XXX X.X. will advise the Representative promptly of the
effectiveness of the Registration Statement (if the Effective Time is
subsequent to the execution and delivery of this Agreement), of any
amendment or supplement of the Registration Statement or the Prospectus
and of the institution by the Commission of any stop order proceedings
in respect of the Registration Statement. The Transferor and XXX X.X.
14
will use their best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued. The
Transferor and XXX X.X. will comply with the Act, the Exchange Act, the
Trust Indenture Act of 1939, as amended and the rules and regulations
contemplated thereunder so as to permit the completion of the
distribution of the Class A Notes as contemplated in this Agreement and
in the Prospectus. The Transferor and XXX X.X. will file with the
Commission all documents required to be filed pursuant to the Exchange
Act within the time periods specified in the Exchange Act or the rules
and regulations promulgated thereunder.
(c) If, at any time when a prospectus relating to the Class A
Notes is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it is necessary at any time to amend or supplement the Prospectus
to comply with the Act, the Transferor and ALF L.P. promptly will
prepare and file, or cause to be prepared and filed, with the
Commission an amendment or supplement that will correct such statement
or omission or effect such compliance. Neither the consent of the
Representative to, nor the delivery by any Underwriter of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Transferor and XXX X.X. will
cause the Indenture Trustee to make generally available to the Class A
Noteholders an earnings statement covering a period of at least 12
months beginning after the Effective Date that will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter that
includes the Effective Date, except that, if such fourth fiscal quarter
is the last quarter of the fiscal year of the Transferor and XXX X.X.,
"Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(e) The Transferor and XXX X.X. will furnish to the
Representative copies of the registration statement as originally filed
with the Commission and each amendment thereto (in each case at least
one of which will be signed and will include all exhibits), each
related preliminary prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as the Representative may reasonably request.
(f) The Transferor and XXX X.X. xxxx arrange for the
qualification of the Class A Notes for sale under the laws of such
jurisdictions in the United States as the Representative may designate
and will continue such qualifications in effect so long as required for
the distribution of the Class A Notes, provided that neither the
Transferor nor ALF L.P. shall be obligated to qualify to do business
nor become subject to service of process generally, but only to the
extent required for such qualification, in any jurisdiction in which it
is not currently so qualified.
15
(g) So long as any Notes are outstanding, the Transferor, XXX
X.X. or World Omni, as the case may be, will make good faith efforts to
deliver or cause to be delivered to the Representative, as soon as each
becomes available, copies of (i) each report relating to the Notes
delivered to Noteholders pursuant to Section 3.06 of the Securitization
Trust Agreement, (ii) the annual statement as to compliance and the
annual statement of a firm of independent public accountants furnished
pursuant to Sections 3.02, 3.03 or 10.02 of the Servicing Agreement,
(iii) each certificate or notice delivered by the Servicer pursuant to
Section 10.03 of the Servicing Agreement, (iv) each periodic report
required to be filed by the Transferor or ALF L.P. with the Commission
pursuant to the Exchange Act, or any order of the Commission thereunder
and (v) such other information concerning the Transferor, World Omni,
ALF LLC, XXXX LLC, XXX X.X., the Origination Trustee (in its capacity
as trustee of the Origination Trust), the Origination Trust, the Trust,
the Notes or the Transferor Certificate as the Representative may
reasonably request from time to time.
(h) The Transferor, XXX X.X. and World Omni will pay all
expenses incident to the performance of their respective obligations
under this Agreement, including without limitation, (i) expenses
incident to the word processing, printing and reproduction of the
registration statement as originally filed with the Commission and each
amendment thereto, preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto), (ii) the fees and
disbursements of the Origination Trustee, the Owner Trustee, the
Indenture Trustee, the Trust Agent, the Insurer and their respective
counsel, (iii) the fees and disbursements of counsel and the
independent public accountants of the Transferor, XXX X.X. and World
Omni, (iv) the fees charged by each of Xxxxx'x Investors Service, Inc.
("Xxxxx'x"), Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc. ("Standard & Poor's") and Fitch IBCA, Inc. ("Fitch"
and, together with Xxxxx'x and Standard & Poor's, the "Rating
Agencies") in connection with the rating of each Class of Notes, (v)
the fees of DTC in connection with the book-entry registration of the
Class A Notes and (vi) expenses (including reasonable fees and
disbursements of counsel) incurred by the Underwriters pursuant to
Section 5(f) hereof in connection with the qualification of the Class A
Notes for sale under the laws of such jurisdictions in the United
States as the Representative may designate. If this Agreement is
terminated by the Representative in accordance with the provisions of
Section 6 or clause (i) or clause (ii) of Section 10 hereof, the
Transferor, XXX X.X. and World Omni shall reimburse the Underwriters
for all of their out-of-pocket expenses, including the reasonable fees
and disbursements of counsel to the Underwriters.
(i) For a period of 45 days from the date hereof, none of the
Transferor, XXX X.X., World Omni or any of their respective affiliates
will, without the prior written consent of the Representative, directly
or indirectly, offer, sell or contract to sell or announce the offering
of, in a public or private transaction, any other collateralized
securities (other than the Class B Notes) similar to the Class A Notes.
16
(j) So long as any Class A Notes are outstanding, the
Transferor, XXX X.X. and World Omni will cause to be delivered to the
Representative a reliance letter relating to each Opinion of Counsel
delivered to the Owner Trustee, the Indenture Trustee, the Origination
Trustee or any Rating Agency by counsel to the Transferor, XXX X.X. or
World Omni relating to the transactions contemplated by this Agreement
or the Basic Documents.
(k) To the extent, if any, that the rating provided with
respect to any Class of Class A Notes by any Rating Agency or the
Insurer is conditional upon the furnishing of documents or the taking
of any other actions by the Transferor, XXX X.X. or World Omni, the
Transferor, XXX X.X. or World Omni, as the case may be, shall furnish
such documents and take any such other actions.
6. Conditions of the Obligations of the Underwriters. The obligation of
the several Underwriters to purchase and pay for the Class A Notes will be
subject to the accuracy of the respective representations and warranties on the
part of the Transferor, XXX X.X. and World Omni herein, to the accuracy of the
statements of the respective officers of the Transferor, XXX X.X. and World Omni
made pursuant to the provisions hereof, to the performance by the Transferor,
XXX X.X. and World Omni of their respective obligations hereunder and to the
following additional conditions precedent:
(a) On (i) the date of this Agreement, the Representative, XXX X.X. and
the Transferor shall have received a letter or letters, dated the date of
delivery thereof (which, if the Effective Time is prior to the execution and
delivery of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to the
Effective Time), of Xxxxxx Xxxxxxxx LLP ("Xxxxxx Xxxxxxxx") confirming that they
are independent public accountants within the meaning of the Act and the Rules
and Regulations, substantially in the form of the draft or drafts to which the
Representative has previously agreed and otherwise in form and in substance
satisfactory to the Representative and counsel for the Underwriters and (ii) on
the Closing Date, the Representative, XXX X.X. and the Transferor shall have
received a letter or letters, dated as of the Closing Date, from Xxxxxx
Xxxxxxxx, updating each letter delivered pursuant to clause (i) above, in form
and substance satisfactory to the Representative and counsel for the
Underwriters.
(b) If the Effective Time has not occurred prior to the date of this
Agreement, the Effective Time shall be the date of execution and delivery of
this Agreement, or the next business day after the date of this Agreement or
such later date as shall have been consented to by the Representative. If the
Effective Time is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) hereof. Prior to the Closing Date, no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Transferor, ALF L.P., World Omni or the Representative,
shall be contemplated by the Commission.
17
(c) The Representative shall have received certificates of the
President, any Vice President or the Treasurer or any Assistant Treasurer of (i)
the XXXX XX General Partner on behalf of the Transferor, (ii) the ALF L.P.
General Partner on behalf of XXX X.X. and (iii) World Omni, each dated the
Closing Date, in which such officer shall state, in the case of (A) the
Transferor and ALF L.P., that (1) the representations and warranties of the
Transferor or ALF L.P., as the case may be, in each Basic Document to which it
is a party and in this Agreement are true and correct, (2) to the best knowledge
of such officer after reasonable investigation, the Transferor or ALF L.P., as
the case may be, has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the Closing
Date, no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission and (3) subsequent to the date of this Agreement,
there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Transferor or ALF L.P., as the case may be, except as set forth in or
contemplated by the Prospectus and (B) World Omni, that (1) the representations
and warranties of World Omni in each Basic Document to which it is a party and
in this Agreement are true and correct, (2) to the best knowledge of such
officer after reasonable investigation, World Omni has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
hereunder and (3) subsequent to the date of this Agreement, there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of World Xxxx except as set
forth in or contemplated by the Prospectus.
(d) The Representative shall have received a certificate, dated the
Closing Date, of a Vice President or another duly authorized officer of the
Insurer, satisfactory in form and substance to the Representative and counsel to
the Underwriters, substantially to the effect that, among other things, (i) the
information provided by the Insurer for use in the Registration Statement and
the Prospectus is true and correct in all material respects and (ii) since the
date of the financial statements of the Insurer included in the Prospectus,
there has been no change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Insurer that would have
a material adverse effect on the ability of the Insurer to meet its obligations
under the Residual Value Insurance Policy.
(e) The Representative shall have received:
(1) The favorable opinions of (A) Xxxxxxxx & Xxxxxxxx, counsel
to the Transferor, XXX X.X. and World Omni, (B) Hand Xxxxxxxx, L.L.C.,
special Alabama counsel to the Transferor, XXX X.X. and World Omni, (C)
English, XxXxxxxxx & X'Xxxxx, P.A., special Florida counsel to the
Transferor, XXX X.X. and World Omni, (D) XxXxxxxxx, Xxxx & Xxxxx,
special Illinois and New York counsel to the Transferor, XXX X.X. and
World Omni, (E) Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to
the Transferor, XXX X.X. and World Omni, (F) Xxxxxxx & Xxxxxxx L.L.C.,
special Georgia counsel to the Transferor, XXX X.X. and World Omni and
(G) Xxxxx Xxxxx Mulliss & Xxxxx, special North Carolina counsel to the
Transferor, XXX X.X. and World Omni, in each case dated the Closing
Date and satisfactory in form and substance to the Representative and
counsel for the Underwriters, and, in the aggregate substantially to
the effect that:
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(i) World Omni has been incorporated under the
Florida General Corporation Act, is current in the payment of
fees due to the Florida Department of State and its status is
active; World Omni has corporate power and authority to own,
lease and operate its properties, to conduct its business as
presently conducted and to enter into and perform its
obligations under this Agreement, each Partnership Agreement
and each Basic Document to which it is a party; to the best of
their knowledge, World Omni is duly qualified as a foreign
corporation to transact business and is in good standing in
Alabama, Georgia, North Carolina and South Carolina; and, to
the best of their knowledge, all of the issued and outstanding
membership interest of XXXX LLC and ALF LLC is owned by World
Omni, free and clear of Liens.
(ii) Each of XXXX LLC and ALF LLC has been duly
incorporated and is validly existing as a limited liability
company in good standing under the laws of the State of
Delaware, with power and authority to own, lease and operate
its properties, to conduct its business as described in the
Registration Statement and to enter into and perform its
obligations under the related Partnership Agreement and each
Basic Document to which it is a party; to the best of such
counsel's knowledge and information, each of XXXX LLC and ALF
LLC is duly qualified as a foreign limited liability company
to transact business in Florida and Alabama; and the shares of
issued and outstanding member interest of each of XXXX LLC and
ALF LLC have been duly authorized and validly issued and are
fully paid and non-assessable.
(iii) Each of the Transferor and XXX X.X. is duly
qualified and registered as a foreign partnership to transact
business and is in good standing in Alabama and Florida.
(iv) This Agreement has been duly authorized,
executed and delivered by XXXX LLC, as the XXXX XX General
Partner, ALF LLC, as the ALF L.P. General Partner and World
Omni.
(v) The Origination Trust has been qualified as
a business trust under applicable Alabama law and what is
commonly known as a business trust under Chapter 609 of the
Florida Statutes, and all filings required to be made in
respect of the Origination Trust's status as a business trust
under the laws of the States of Alabama and Florida have been
made and are in full force and effect on the Closing Date.
(vi)(a) The Notes are in due and proper form, all
conditions precedent provided for in the Indenture relating to
the issuance, authentication and delivery of the Notes have
been complied with and the Notes have been duly and validly
authorized and, when executed, issued, authenticated and
delivered pursuant to the Indenture, and, in the case of the
Class A Notes, when delivered to the Underwriters against
payment of the consideration set forth in this Agreement, will
be duly and validly issued and outstanding and entitled to the
benefits of the Indenture.
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(b) The Transferor Certificate is in due and proper
form, all conditions precedent provided for in the
Securitization Trust Agreement relating to the issuance,
authentication and delivery of the Transferor Certificate have
been complied with and the Transferor Certificate has been
duly and validly authorized and, when executed, issued,
authenticated and delivered pursuant to the Securitization
Trust Agreement, will be duly and validly issued and
outstanding and entitled to the benefits of the Securitization
Trust Agreement.
(vii) Each Partnership Agreement and each Basic
Document to which the Transferor, XXXX LLC, ALF LLC, XXX X.X.
and World Omni is a party has been duly authorized, executed
and delivered by the Transferor, XXXX LLC, ALF LLC, XXX X.X.
and World Omni, as the case may be, and, assuming the due
authorization, execution and delivery thereof by the other
parties thereto, will constitute the legal, valid and binding
agreement of such entity enforceable against such entity in
accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting enforcement of
creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). (In rendering
such opinion as to the enforceability of a Basic Document,
counsel shall state that in the event of a conflict of law
arising under such Basic Document, the governing law of such
Basic Document will apply without regard to any otherwise
applicable principles of conflicts of laws in the related
state).
(viii) To the best knowledge and information of
such counsel, (A) there are no legal or governmental
proceedings pending or threatened that are required to be
disclosed in the Registration Statement other than those
disclosed therein and (B) all pending legal or governmental
proceedings to which the Transferor, XXXX LLC, ALF LLC, ALF
L.P., the Origination Trustee (in its capacity as trustee of
the Origination Trust) or World Omni is a party or to which
any of their respective properties or assets is subject that
are not described in the Registration Statement, including
ordinary routine litigation incidental to the business of such
entity, are, considered in the aggregate with respect to the
Transferor, XXXX LLC, ALF LLC, XXX X.X., the Origination
Trustee (in its capacity as trustee of the Origination Trust)
or World Omni as the case may be, not material.
(ix) The statements in the Prospectus under the
captions "Summary", "Risk Factors", "Description of the
Notes", "Security for the Notes", "Security for the Notes--The
Residual Value Insurance Policy", "Additional Document
20
Provisions" and "The Class A Interest Rate Swap", insofar as
such statements purport to summarize certain terms or
provisions of the SUBI, the Notes and the Transferor
Certificate, the Basic Documents, the Residual Value Insurance
Policy, the Contingent and Excess Liability Insurance Policies
and the Class A Interest Rate Swap, provide a fair summary of
such provisions, and the statements in the Prospectus under
"The Origination Trust--Allocation of Origination Trust
Liabilities", "Risk Factors--Risks Associated With Consumer
Protection Laws", "--Risks Associated With ERISA Liabilities",
"--Risks Associated With Vicarious Tort Liability" and
"--Risks in the Event of an Insolvency of World Omni;
Substantive Consolidation with World Omni", "Additional
Document Provisions", "Certain Legal Aspects of the
Origination Trust and the SUBI", "Certain Legal Aspects of the
Contracts and the Leased Vehicles" and "ERISA Considerations",
to the extent that they constitute matters of law, summaries
of legal matters, documents or proceedings or legal
conclusions relating to U.S. federal law or the laws of the
States of Florida, Georgia or North Carolina have been
prepared or reviewed by such counsel and are correct in all
material respects.
(x) To the best knowledge and information of
such counsel, (A) there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed as exhibits thereto,
(B) the descriptions thereof or references thereto are correct
and (C) no default exists in the due performance or observance
of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so described,
referred to or filed.
(xi) No authorization, approval, consent or
order of any court or governmental authority or agency is
required in connection with the issuance of the SUBI
Certificate, the Notes or the Transferor Certificate, the
offering of the Notes or the sale of the Class A Notes to the
Underwriters, except those authorizations, approvals, consents
and orders which have previously been obtained and are in full
force and effect as of the Closing Date; provided, that such
counsel need express no opinion as to state securities laws.
(xii) None of (A) the execution, delivery and
performance by the Transferor, XXX X.X. or World Omni of this
Agreement or by the Transferor, XXXX LLC, ALF LLC, ALF L.P. or
World Omni of any applicable Partnership Agreement or any
Basic Document to which such entity is a party, (B) the
consummation of the transactions contemplated herein or
therein by any such entity or (C) the fulfillment of the terms
hereof or thereof by any such entity will conflict with,
result in a breach of or constitute a default under, or with
the giving of notice or the passage of time or both, would
constitute a default under or result in the creation or
imposition of any Lien (except as permitted by the Basic
21
Documents) upon any property or assets of such entity pursuant
to the terms of (i) the organizational, charter or partnership
documents or bylaws of such entity, (ii) to the best knowledge
and information of such counsel and except as otherwise
provided in the Basic Documents, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which such entity is a party or by which it may be bound, or
to which any of the properties or assets of such entity is
subject or (iii) any applicable law, statute or regulation or,
to the best knowledge and information of such counsel, any
judgment, order or decree applicable to such entity of any
court, regulatory body or other governmental instrumentality
having jurisdiction over such entity except, in the case of
clauses (ii) and (iii) above, for defaults, breaches or
violations that do not, in the aggregate, have a material
adverse effect on such entity.
(xiii) None of the Transferor, XXXX LLC, ALF LLC,
ALF L.P., World Omni, the Origination Trust or the Trust is an
"investment company" or is "controlled" by an "investment
company" as such terms are defined in the Investment Company
Act.
(xiv) The Registration Statement has become
effective under the Act, and, to the best knowledge and
information of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated under the Act, and the
Registration Statement and the Prospectus, and each amendment
or supplement thereto, as of their respective effective or
issue dates, complied as to form in all material respects with
the requirements of the Act, the Trust Indenture Act of 1939,
as amended, and the Rules and Regulations. Such counsel has no
reason to believe that either the Registration Statement, at
the Effective Time, or any such amendment or supplement, as of
its effective date, contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, at the date of
this Agreement (or any such amendment or supplement, as of its
respective date) or at the Closing Date included or includes
an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; it being understood that
such counsel need express no opinion as to the financial
statements or other financial or statistical data contained in
the Registration Statement or the Prospectus.
(xv) Neither the SUBI Trust Agreement nor the
Securitization Trust Agreement is required to be qualified
under the Trust Indenture Act of 1939, as amended.
22
(xvi) The Indenture and the Backup Security
Agreement create a valid first priority perfected security
interest in favor of the Indenture Trustee, for the benefit of
the Noteholders, in the SUBI Collection Account, the
Distribution Account, the Reserve Fund and the proceeds
thereof (including Permitted Investments) for so long as they
are held in such accounts.
(xvii) The transfer of the SUBI Certificate by XXX
X.X. to the Transferor constitutes a sale of the SUBI
Certificate and the SUBI Assets evidenced thereby. The
transfer of the SUBI Certificate by the Transferor to the
Trust (A) constitutes a sale of the SUBI Certificate and the
SUBI Assets evidenced thereby or (B) if such transfer does not
constitute a sale, then the Securitization Trust Agreement,
the Indenture and the delivery to and possession by the
Indenture Trustee of the SUBI Certificate creates a valid
first priority perfected security interest for the benefit of
the Noteholders in the SUBI Certificate.
(xviii) Each of the Transferor, XXXX LLC, ALF LLC,
ALF L.P., World Omni and the Origination Trustee (in its
capacity as trustee of the Origination Trust) possesses such
certificates, authorities, licenses, permits and other
governmental authorizations issued by Alabama and Florida, in
the case of the Transferor, XXXX LLC, ALF LLC, XXX X.X. and
World Omni, and by the States of Alabama, Florida, Georgia and
North Carolina, in the case of the Origination Trustee (on
behalf of the Origination Trust), materially necessary to
conduct the business now operated by it, and none of such
entities has received any notice of proceedings relating to
the revocation or modification of any such certificate,
authority, license or permit that, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding,
would materially and adversely affect the condition, financial
or otherwise, or the earnings, business affairs or business
prospects of such entity.
(xix) The choice of law provisions contained in
each dealer agreement between World Omni and a dealer that
originates lease contracts comprising Origination Trust Assets
are valid and enforceable under the laws of Alabama, Georgia
and North Carolina.
(xx) The assignment provisions contained in each
dealer agreement between World Omni and a dealer that
originates lease contracts comprising Origination Trust Assets
are valid and enforceable under the laws of the State in which
such dealer originates such lease contracts.
(xxi) Assuming the chief executive office of the
Origination Trustee is located in the State of Illinois and
the timely filing of an appropriate UCC Financing Statement
with the Secretary of the State of Illinois, the grant by the
Origination Trustee to the Indenture Trustee of a security
interest in the 1998-A Leases pursuant to the Backup Security
Agreement will create a valid, first priority perfected
security interest in the 1998-A Leases.
23
(2) The favorable opinion of Hand Xxxxxxxx, L.L.C., special
Alabama counsel to the Transferor, XXX X.X. and World Omni, dated the
Closing Date and satisfactory in form and substance to the
Representative and counsel to the Underwriters, and substantially to
the effect that:
(i) The SUBI Certificate has been duly and
validly authorized and, when executed, issued, authenticated
and delivered pursuant to the SUBI Trust Agreement, will be
duly and validly issued and outstanding and entitled to the
benefits of the SUBI Trust Agreement.
(ii) The lease contracts originated in Alabama
are "true leases" for purposes of Alabama law.
(iii) Assuming the chief executive office of the
Origination Trustee is located in the State of Alabama and the
timely filing of an appropriate UCC Financing Statement with
the Secretary of the State of Alabama, the grant by the
Origination Trustee to the Indenture Trustee of a security
interest in the 1998-A Leases pursuant to the Backup Security
Agreement will create a valid, first priority perfected
security interest in the 1998-A Leases.
(3) The favorable opinion of Xxxxxxxx, Xxxxxx & Finger,
special Delaware counsel to the Transferor, XXX X.X. and World Omni,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel to the Underwriters, to the effect that:
(i) Each of the Transferor and ALF L.P. has
been duly formed and is validly existing in good standing as a
limited partnership under the Delaware Act with all requisite
power under the Delaware Act and the related Partnership
Agreement to enter into and perform its obligations under this
Agreement, the related Partnership Agreement and each Basic
Document to which it is a party.
(ii) The execution and delivery of and
performance under the related Partnership Agreement and each
Basic Document to which the Transferor or ALF L.P. is a party
(A) have been duly authorized by all requisite partnership
action on the part of the Transferor or ALF L.P., (B) are
permitted under the Delaware Act and the related Partnership
Agreement and (C) will not violate any Delaware statute or
regulation; provided that such counsel need express no opinion
regarding state securities laws.
(iii) No consent, approval, authorization or
order of, or registration or filing or declaration with, any
Delaware court or governmental agency or body is required in
connection with either the Transferor's or ALF L.P.'s
execution or delivery of or performance under the related
Partnership Agreement and each Basic Document to which it is a
party.
24
(4) The favorable opinion of English, XxXxxxxxx & X'Xxxxx,
P.A., special Florida counsel to the Transferor, XXX X.X. and World
Omni, dated the Closing Date and satisfactory in form and substance to
the Representative and counsel for the Underwriters, and substantially
to the effect that:
(i) The Class A Notes will constitute
"indebtedness" for purposes of Florida income tax law, and the
Class B Notes should constitute "indebtedness" for purposes of
Florida income tax law.
(ii) The loan rule promulgated under the Florida
Corporate Income Tax Code and included in the Florida
Administrative Code relating to interest on loans by
"financial organizations" (as such term is defined therein),
should not apply to an investment in the Notes by such a
financial organization.
(iii) The statements in the Prospectus under
"Material Income Tax Considerations--Florida Income Taxation",
to the extent that they constitute matters of law, summaries
of legal matters, documents or proceedings or legal
conclusions, have been reviewed by such counsel and are
correct in all material respects.
(iv) The lease contracts originated in Florida
are "true leases" for purposes of Florida law.
(v) Assuming that all other elements necessary
to render a lease contract legal, valid, binding and
enforceable were present in connection with the execution,
delivery and performance of each lease contract, and assuming
that no action was taken in connection with the execution,
delivery and performance of each lease contract that would
give rise to a defense to the legality, validity, binding
effect and enforceability of such lease contract, nothing in
the forms of such lease contracts, as attached as an Exhibit
to the Servicing Agreement, would render such lease contract
other than legal, valid, binding and enforceable; assuming the
validity, binding effect and enforceability in all other
respects, such forms of lease contracts are in sufficient
compliance with applicable federal and Florida state consumer
protection laws so as not to be rendered void or voidable at
the election of the related lessee.
(5) The favorable opinion of Xxxxxxxxxx, Xxxxxxxxxx & Xxxx,
special federal income tax counsel to the Transferor and ALF L.P.,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel to the Underwriters, to the effect that (i)
the Class A Notes will constitute "indebtedness" for federal income tax
purposes and (ii) the statements in the Prospectus under the captions
"Summary--Tax Status" and "Material Income Tax Considerations--Federal
Taxation", to the extent that they constitute matters of law, summaries
of legal matters or legal conclusions, have been reviewed by such
counsel and are correct in all material respects.
25
(6) Reliance letters relating to each legal opinion relating
to the transactions contemplated by this Agreement and the Basic
Documents rendered by counsel to the Transferor, XXX X.X. or World Omni
to the Owner Trustee, the Indenture Trustee, the Origination Trustee or
any Rating Agency.
(7) The favorable opinion of XxXxxxx, Xxxxx, Battle & Xxxxxx,
counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel to
the Underwriters, to the effect that:
(i) The Indenture Trustee has been duly
incorporated and is validly existing as a banking corporation,
in good standing under the laws of the State of New York with
full power and authority (corporate and other) to own its
properties and conduct its business, as presently conducted by
it, and to enter into and perform its obligations as Indenture
Trustee under each Basic Document to which the Indenture
Trustee is a party.
(ii) Each Basic Document to which the Indenture
Trustee is a party has been duly authorized, executed and
delivered by the Indenture Trustee and, assuming the due
authorization, execution and delivery thereof by the other
parties thereto, will constitute a legal, valid and binding
obligation of the Indenture Trustee enforceable in accordance
with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, reorganization
or other similar laws affecting enforcement of creditors'
rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iii) The Notes have been duly authenticated and
delivered by the Indenture Trustee.
(iv) Neither the execution nor delivery by the
Indenture Trustee of each Basic Document to which it is a
party nor the consummation of any of the transactions by the
Indenture Trustee contemplated thereby require the consent or
approval of, the giving of notice to, the registration with or
the taking of any other action with respect to, any
governmental authority or agency under any existing federal or
state law governing the banking or trust powers of the
Indenture Trustee.
(v) The execution and delivery of each Basic
Document to which the Indenture Trustee is a party and the
performance by the Indenture Trustee of its terms do not
conflict with or result in a violation of (A) any federal or
state law or regulation governing the banking or trust powers
of the Indenture Trustee, (B) the Articles of Association or
By-Laws of the Indenture Trustee or (C) to the best knowledge
of such counsel, any indenture, lease or material agreement to
which the Indenture Trustee is a party or to which its assets
are subject.
26
(8) The favorable opinion of Xxxxxx & Xxxxxxx, counsel to the
Origination Trustee and the Trust Agent, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel
for the Underwriters, to the effect that:
(i) The Origination Trustee has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Alabama with corporate
power and authority to own, lease and operate its properties,
to conduct its business as described in the Registration
Statement and to enter into and perform its obligations under
each Basic Document to which it is a party; to the best of
their knowledge and information, the Origination Trustee is
duly qualified as a foreign corporation to transact business
and is in good standing in Georgia, Florida, North Carolina
and Illinois; and the shares of issued and outstanding capital
stock of the Origination Trustee have been duly authorized and
validly issued, are fully paid and non-assessable and are
owned by U.S. Bank, free and clear of any Liens. The Trust
Agent has been duly incorporated and is validly existing as a
national banking association, in good standing under the laws
of the United States of America, with full power and authority
(corporate and other) to own its properties and conduct its
business, as presently conducted by it, and to enter into and
perform its obligations as Trust Agent under each Basic
Document to which the Trust Agent is a party.
(ii) Each Basic Document to which the
Origination Trustee or the Trust Agent is a party has been
duly authorized, executed and delivered by the Origination
Trustee or the Trust Agent, as applicable, and, assuming the
due authorization, execution and delivery thereof by the other
parties thereto, will constitute legal, valid and binding
obligations of the Origination Trustee or the Trust Agent, as
applicable, enforceable in accordance with their respective
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or other
similar laws affecting enforcement of creditors' rights
generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(iii) The SUBI Certificate has been duly
executed, authenticated and delivered by the Origination
Trustee.
(iv) Neither the execution nor delivery by the
Origination Trustee or the Trust Agent of each Basic Document
to which it is a party nor the consummation of any of the
transactions by the Origination Trustee or the Trust Agent
contemplated thereby require the consent or approval of, the
giving of notice to, the registration with or the taking of
any other action with respect to, any Person or entity,
including any governmental authority or agency under any
existing federal or state law.
27
(v) The execution and delivery of each Basic
Document to which the Origination Trustee is a party and the
performance by the Origination Trustee of their respective
terms do not conflict with or result in a violation of its
articles of incorporation or bylaws of the Origination Trustee
or, to the best of such counsel's knowledge, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party, by which it may be bound or
to which any of its property or assets is subject.
(vi) The execution and delivery of each Basic
Document to which the Trust Agent is a party and the
performance by the Trust Agent of its terms do not conflict
with or result in a violation of (A) any federal or state law
or regulation governing the banking or trust powers of the
Trust Agent, (B) the Articles of Association or By-Laws of the
Trust Agent or (C) to the best knowledge of such counsel, any
indenture, lease or material agreement to which the Trust
Agent is a party or to which its assets are subject.
(9) The favorable opinions of Xxxxx & Xxxxxxx and Xxxxxxx &
Knight counsel of the Insurer, dated the Closing Date and satisfactory
in form and substance to the Representative and counsel to the
Underwriters, substantially in the form of the draft opinion previously
delivered to the Representative, to the effect that, among other
things, (i) the Insurer has been duly incorporated and is in good
standing in the jurisdiction of its incorporation, (ii) the Insurer has
the corporate power and authority to issue, execute, deliver and
perform its obligations under the Residual Value Insurance Policy,
(iii) no consent, approval, authorization or order of, or registration
or filing or declaration with, any entity is required in connection
with the issuance of the Residual Value Insurance Policy, (iv) the
Residual Value Insurance Policy is enforceable in accordance with its
terms and (v) the Residual Value Insurance Policy is not required to be
registered under the Act.
(10) The favorable opinion of The Bayard Firm, special counsel
to the Owner Trustee, dated the Closing Date and satisfactory in form
and substance to the Representative and counsel to the Underwriters, to
the effect that:
(i) PNC Bank has been incorporated and is
validly existing as a Delaware banking corporation, in good
standing under the laws of the State of Delaware and is
authorized thereunder and pursuant thereto to transact the
business of banking, to exercise fiduciary power and to enter
into and perform its obligations as Owner Trustee under each
Basic Document to which PNC Bank is a party.
(ii) Each Basic Document to which PNC Bank is a
party has been duly authorized, executed and delivered by PNC
Bank and, assuming the due authorization, execution and
delivery thereof by the other parties thereto, will constitute
a legal, valid and binding obligation of PNC Bank enforceable
in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting enforcement of
creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
28
(iii) Each Note has been duly executed and
delivered by the Owner Trustee. The Transferor Certificate has
been duly executed, authenticated and delivered by the Owner
Trustee.
(iv) Neither the execution nor delivery by PNC
Bank of each Basic Document to which it is a party nor the
consummation of any of the transactions by PNC Bank
contemplated thereby require the consent or approval of, the
giving of notice to, the registration with or the taking of
any other action with respect to, any Person or entity,
including any governmental authority or agency under any
existing federal or state law.
(v) The execution and delivery of each Basic
Document to which PNC Bank is a party and the performance by
PNC Bank of its terms do not conflict with or result in a
violation of (A) any federal or state law or regulation
governing the banking or trust powers of PNC Bank, (B) the
Articles of Association or By-Laws of PNC Bank or (C) to the
best knowledge of such counsel, any indenture, lease or
material agreement to which PNC Bank is a party or to which
its assets are subject.
(11) The favorable opinion of Xxxxxxx & Xxxxxxx & Xxxxx LLP,
counsel for the Underwriters, dated the Closing Date, with respect to
the existence of the Transferor, XXX X.X. and World Omni, the validity
of the Notes and the Transferor Certificate and such other related
matters as the Representative shall request. In rendering such opinion,
Xxxxxxx & Xxxxxxx & Xxxxx LLP may rely on the opinions of (i) Hand
Xxxxxxxx, L.L.C., as to all matters of Alabama law, (ii) Xxxxxxxx,
Xxxxxx & Finger and The Bayard Firm, special counsel to the Owner
Trustee, as to all matters of Delaware law, (iii) English, XxXxxxxxx &
X'Xxxxx, P.A., as to all matters of Florida law and (iv) XxXxxxxxx,
Xxxx & Xxxxx and/or Xxxxxx & Xxxxxxx, as to all matters of Illinois
law, which opinions shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(f) The Insurer shall have issued the Residual Value Insurance Policy.
(g) On or prior to the Closing Date, the Representative shall have
received an officer's certificate from an officer of the Insurer stating that
although the information in the Prospectus under "Security for the Notes--The
Residual Value Insurance Policy" is limited and does not purport to provide the
scope of disclosure required to be included in a prospectus with respect to a
registrant under the Act in connection with the public offering of securities of
such registrant, such officer has no reason to believe that the information in
the Prospectus under "Security for the Notes--The Residual Value Insurance
Policy" contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
29
(h) Each Class of Class A Notes shall be rated in the highest rating
category by each of Xxxxx'x, Standard & Poor's and Fitch and the Class B Notes
shall be rated by at least two of Xxxxx'x, Standard & Poor's and Fitch, at least
A3 by Xxxxx'x, at least A- by Standard & Poor's and at least A by Fitch.
(i) On or prior to the Closing Date, all of the conditions precedent to
the execution of the Class A Interest Rate Swap have been satisfied and each of
the opinions delivered in connection with the Class A Interest Rate Swap have
been addressed to the Underwritiers and delivered to the Representative.
(j) On or prior to the Closing Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance of the Notes
and the Transferor Certificate and sale of the Class A Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the parties to the
Basic Documents in connection with the issuance of the Notes and the Transferor
Certificate and sale of the Class A Notes as herein contemplated shall be
satisfactory in form and substance to the Representative and counsel for the
Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representative by notice to the Transferor, XXX X.X. and World Omni at
any time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Section 5(h)
hereof.
7. Indemnification and Contribution.
(a) Each of the Transferor and World Xxxx agrees, jointly and
severally, to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act as
follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant to
Rule 430A(b) of the Rules and Regulations, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
30
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Transferor and
World Omni; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(c) hereof, the fees and disbursements
of counsel chosen by the Representative), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clause
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Transferor by
any Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Transferor and World Omni, each of their respective directors, each of their
respective officers who signed the Registration Statement and each person, if
any, who controls each of the Transferor and World Omni, respectively, within
the meaning of Section 15 of the Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Transferor by such
Underwriter directly or through the Representative expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it with
respect to which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it may have
other than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action. In no event shall
an indemnifying party be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
31
8. Contribution. If the indemnification provided for in Section 7
hereof is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) thereof, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the loss, liability, claim, damage or expense referred to in subsection (a)
or (b) of Section 7 (i) in such proportion as is appropriate to reflect the
relative benefits received by the Transferor and World Omni on the one hand and
the Underwriters on the other from the offering of the Class A Notes or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Transferor
and World Omni on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such loss, liability, claim,
damage or expense as well as any other relevant equitable considerations. The
relative benefits received by the Transferor and World Omni on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Transferor bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Transferor, World Omni or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the loss, liability, claim, damage or expense
referred to in the first sentence of this Section shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this Section. Notwithstanding the provisions of this Section, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Class A Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Notwithstanding the other
provisions of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Act shall have the same rights to
contribution as such Underwriter and each director of the Transferor and World
Omni, each officer of the Transferor who signed the Registration Statement and
each person, if any, who controls either the Transferor or World Omni within the
meaning of Section 15 of the Act shall have the same rights to contribution as
the Transferor or World Omni, as the case may be. The Underwriters' respective
obligations to contribute pursuant to this Section are several in proportion to
the principal amount of the Class A Notes set forth opposite their respective
names in Schedule I hereto and not joint.
32
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Transferor, XXX X.X. and World Omni or their respective officers and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Transferor, XXX
X.X., World Omni or any of their respective representatives, officers or
directors or any controlling Person, and will survive delivery of and payment
for the Class A Notes. If for any reason the purchase of the Class A Notes by
the Underwriters is not consummated, the Transferor, ALF L.P. and World Omni
shall remain responsible for the expenses to be paid or reimbursed by them
pursuant to Section 5(h) hereof and the respective obligations of the
Transferor, World Omni, ALF L.P. and the Underwriters pursuant to Section 7
hereof shall remain in effect. If the purchase of the Class A Notes by the
Underwriters is not consummated for any reason other than solely because of the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 10
hereof, the Transferor, XXX X.X. and World Omni will reimburse the Underwriters
for all out-of-pocket expenses (including the reasonable fees and disbursements
of counsel) reasonably incurred by them in connection with the offering of the
Class A Notes.
10. Termination of Agreement. The Representative may terminate this
Agreement, by notice to the Transferor, XXX X.X. and World Omni, at any time
prior to or at the Closing Date (i) if there has been, since the date of this
Agreement or since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Transferor, World Omni, ALF L.P., the Origination Trust or the Insurer, whether
or not arising in the ordinary course of business; (ii) if there has occurred
any downgrading in the rating of the debt securities of the Transferor, ALF
L.P., World Omni or the Insurer by any "nationally recognized statistical rating
organization" (as such term is defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Transferor, XXX
X.X., World Omni or the Insurer (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or other calamity or crisis, the effect of which is such as to make
it, in the judgment of the Representative, impracticable to market any Class of
Notes or to enforce contracts for the sale of any Class of Notes; (iv) if
trading generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed or maximum ranges for prices for securities have been required, by either
of said Exchanges or by order of the Commission or any other governmental
authority; or (v) if a banking moratorium has been declared by either federal,
New York, Delaware, Florida, Illinois or Alabama authorities.
11. Default By One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Date to purchase the Class A Notes which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, but not the obligation,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
33
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the total aggregate principal amount of the
Class A Notes, the non-defaulting Underwriters shall be obligated to
purchase the full amount thereof in such proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the total aggregate principal amount of the Class A
Notes, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter.
No action pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representative or ALF L.P. and the Transferor
shall have the right to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangement.
12. Notices. All communications hereunder will be in writing and, if
sent to (i) the Underwriters, shall be directed to the Representative and will
be mailed, delivered or sent by facsimile and confirmed to it at Xxxxxxx Xxxxx &
Co., North Tower, World Financial Center, New York, New York 10281-1201,
Attention: Xxxxxxxx X. Xxxx, Managing Director (facsimile number (212)
449-9015); (ii) the Transferor, will be mailed, delivered or sent by facsimile
and confirmed to it at World Omni Lease Securitization L.P., c/o World Omni
Lease Securitization LLC, 120 N.W. 12th Avenue, Deerfield Beach, Florida 33442,
Attention: X. Xxxxxx Xxxxx, Vice President and Corporate Treasurer (facsimile
number (000) 000-0000); (iii) ALF L.P., will be mailed, delivered or sent by
facsimile and confirmed to it at Auto Lease Finance L.P., c/o Auto Lease Finance
LLC, 000 X.X. 12th Avenue, Deerfield Beach, Florida 33442, Attention: X. Xxxxxx
Xxxxx, Vice President and Corporate Treasurer (facsimile number (000) 000-0000);
or (iv) World Omni, will be mailed, delivered or sent by facsimile and confirmed
to it at World Omni Financial Corp., 000 X.X. 12th Avenue, Deerfield Beach,
Florida 33442, Attention: X. Xxxxxx Xxxxx, Vice President and Corporate
Treasurer (facsimile number (000) 000-0000).
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling Persons referred to in Sections 7 and 8 hereof,
and no other Person will have any right or obligation hereunder.
14. Severability of Provisions. Any covenant, provision, agreement or
term of this Agreement that is prohibited or is held to be void 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.
34
15. Miscellaneous. This Agreement constitutes the entire agreement and
understanding of the parties hereto with respect to the matters and transactions
contemplated hereby and supersedes all prior agreements and understandings
whatsoever relating to such matters and transactions. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. The headings in this
Agreement are for the purposes of reference only and shall not limit or
otherwise affect the meaning hereof.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
17. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to any
otherwise applicable principles of conflicts of laws.
35
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts duplicate
hereof, whereupon it will become a binding agreement between the Transferor, ALF
L.P. and World Omni and the Underwriters in accordance with its terms.
Very truly yours,
WORLD OMNI LEASE SECURITIZATION L.P.
By: WORLD OMNI LEASE SECURITIZATION LLC,
its General Partner
By: __________________________
Xxxxxxx X. Xxxxxxxxx
Assistant Treasurer
AUTO LEASE FINANCE L.P.
By: AUTO LEASE FINANCE LLC,
its General Partner
By: ___________________________
Xxxxxxx X. Xxxxxxxxx
Assistant Treasurer
WORLD OMNI FINANCIAL CORP.
By: ___________________________
Xxxxxxx X. Xxxxxxxxx
Assistant Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: ___________________________
Name:
Title:
For itself and as Representative of the other Underwriters named in Schedule I
hereto.
36
SCHEDULE I
Principal Amount Principal Amount Principal Amount Principal Amount
Name of Underwriter of Class A-1 of Class A-2 of Class A-3 of Class A-4
------------------- Notes Notes Notes Notes
----- ----- ----- -----
Credit Suisse First Boston Corporation ............. $169,850,000 $173,800,000 $161,950,000 $138,796,285
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated...................................... $169,850,000 $173,800,000 $161,950,000 $138,796,285
First Union Capital Markets, a division
of Wheat First Securities, Inc. .................. $ 30,100,000 $ 30,800,000 $ 28,700,000 $ 24,596,810
NationsBanc Xxxxxxxxxx Securities LLC .............. $ 30,100,000 $ 30,800,000 $ 28,700,000 $ 24,596,810
Xxxxxxx Xxxxx Xxxxxx Inc. .......................... $ 30,100,000 $ 30,800,000 $ 28,700,000 $ 24,596,810
Total ....................................... $430,000,000 $440,000,000 $410,000,000 $351,383,000
