EXECUTION COPY
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RECEIVABLES PURCHASE AGREEMENT
by and between
WORLD OMNI FINANCIAL CORP., as Seller,
and
WORLD OMNI AUTO RECEIVABLES LLC, as Purchaser
Dated As of March 11, 2003
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TABLE OF CONTENTS
Page No.
ARTICLE I Certain Definitions ............................................................................ 1
ARTICLE II Conveyance of Receivables ..................................................................... 3
SECTION 2.01 Conveyance of Receivables ..................................................... 3
SECTION 2.02 Purchase Price ................................................................ 3
SECTION 2.03 Intention of Parties .......................................................... 3
SECTION 2.04 The Closing ................................................................... 4
ARTICLE III Representations and Warranties ............................................................... 4
SECTION 3.01 Representations and Warranties of the Purchaser ............................... 4
SECTION 3.02 Representations and Warranties of the Seller .................................. 5
ARTICLE IV Conditions .................................................................................... 6
SECTION 4.01 Conditions to Obligation of the Purchaser ..................................... 6
SECTION 4.02 Conditions to Obligation of the Seller ........................................ 7
ARTICLE V Covenants of the Seller ........................................................................ 7
SECTION 5.01 Protection of Right, Title and Interest ....................................... 7
SECTION 5.02 Other Liens or Interests ...................................................... 8
SECTION 5.03 Indemnification ............................................................... 8
ARTICLE VI Miscellaneous Provisions ...................................................................... 9
SECTION 6.01 Obligations of Seller ......................................................... 9
SECTION 6.02 Repurchase Events ............................................................. 9
SECTION 6.03 Purchaser Assignment of Repurchased Receivables ............................... 9
SECTION 6.04 The Trust ..................................................................... 9
SECTION 6.05 Amendment ..................................................................... 9
SECTION 6.06 Accountants' Letters .......................................................... 10
SECTION 6.07 Waivers ....................................................................... 10
SECTION 6.08 Notices ....................................................................... 10
SECTION 6.09 Costs and Expenses ............................................................ 10
SECTION 6.10 Representations of the Seller and the Purchaser ............................... 10
SECTION 6.11 Confidential Information ...................................................... 11
SECTION 6.12 Headings and Cross-references ................................................. 11
SECTION 6.13 GOVERNING LAW ................................................................. 11
SECTION 6.14 Counterparts .................................................................. 11
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RECEIVABLES PURCHASE AGREEMENT
This RECEIVABLES PURCHASE AGREEMENT dated as of March 11, 2003 (as
amended from time to time, this "Agreement"), is between World Omni Financial
Corp., a Florida corporation, and World Omni Auto Receivables LLC, a Delaware
limited liability company.
WHEREAS, in the regular course of its business, World Omni Financial
Corp. has originated and purchased from motor vehicle dealers certain motor
vehicle retail installment sale contracts secured by new and used automobiles
and light-duty trucks;
WHEREAS, World Omni Auto Receivables LLC wishes to purchase the
Receivables (as hereinafter defined) and to transfer the Receivables to World
Omni Auto Receivables Trust 2003-A (the "Trust"), which will issue and transfer
to World Omni Auto Receivables LLC the $189,000,000 Class A-1, 1.30%
Asset-Backed Notes, Series 2003-A (the "Class A-1 Notes"), the $156,000,000
Class A-2, 1.46% Asset-Backed Notes, Series 2003-A (the "Class A-2 Notes"), the
$257,000,000 Class A-3, 1.98% Asset-Backed Notes, Series 2003-A (the "Class A-3
Notes"), the $139,300,000 Class A-4, 2.58% Asset-Backed Notes, Series 2003-A
(the "Class A-4 Notes") and the $43,725,000 Class B, 2.35% Asset-Backed Notes,
Series 2003-A (the "Class B Notes" and, together with the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, the "Notes"), with
the interest and principal payments on the Notes to be secured by the
Receivables, and issue and transfer to the Purchaser the Certificates
representing fractional undivided interests in the property of the Trust
including the Receivables, subject to the rights of the Indenture Trustee on
behalf of the Noteholders;
WHEREAS, World Omni Financial Corp. has agreed to make certain
representations and warranties relating to the Receivables and to pay certain
expenses and amounts with respect hereto; and
WHEREAS, World Omni Financial Corp. and World Omni Auto Receivables
LLC wish to set forth the terms pursuant to which World Omni Financial Corp.
will sell the Receivables to World Omni Auto Receivables LLC.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
Certain Definitions
Terms not defined in this Agreement shall have the meaning set forth
in the Sale and Servicing Agreement or the Indenture, as applicable. As used in
this Agreement, the following terms shall, unless the context otherwise
requires, have the following meanings (such meanings to be equally applicable to
the singular and plural forms of the terms defined):
"Agreement" shall mean this Receivables Purchase Agreement, as the
same may be amended and supplemented from time to time.
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"Assignment" shall mean the document of assignment substantially in
the form of Exhibit A.
"Certificates" shall mean the Trust Certificates (as defined in the
Trust Agreement).
"Certificateholders" shall mean the holders of Certificates.
"Closing Date" shall mean March 11, 2003.
"Collections" shall mean all amounts collected by the Servicer (from
whatever source) on or with respect to the Receivables.
"Cutoff Date" means the close of business on February 28, 2003.
"Final Prospectus" shall mean the prospectus dated February 24, 2003,
as supplemented by the prospectus supplement dated February 24, 2003, relating
to the Notes.
"Indenture" shall mean the Indenture, dated as of the date hereof,
between the Trust and The Bank of New York, as trustee (the "Indenture
Trustee"), as the same may be amended and supplemented from time to time.
"Noteholders" shall mean the holders of the Notes.
"Owner Trustee" shall mean U.S. Bank Trust National Association, a
national banking association, its successors and assigns.
"Purchaser" shall mean World Omni Auto Receivables LLC, a Delaware
limited liability company, its successors and assigns.
"Receivable" shall mean any Contract listed on Schedule I hereto
(which Schedule may be in the form of microfiche), as such Schedule may be
amended from time to time.
"Repurchase Event" shall have the meaning specified in Section 6.02.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement, dated as of the date hereof, among the Trust, the Purchaser and the
Seller as the same may be amended and supplemented from time to time.
"Schedule of Receivables" shall mean the list of Receivables annexed
hereto as Schedule I, as such Schedule may be amended from time to time.
"Seller" shall mean World Omni Financial Corp., a Florida
corporation, its successors and assigns.
"Trust Agreement" shall mean the Trust Agreement, dated as of the
date hereof, between the Purchaser and U.S. Bank Trust National Association, as
the owner trustee (the "Owner Trustee"), as the same may be amended and
supplemented from time to time; such
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agreement being the Amended and Restated Trust Agreement contemplated by the
Trust Agreement dated February 5, 2003 between the Purchaser and the Owner
Trustee.
ARTICLE II
Conveyance of Receivables
SECTION 2.01 Conveyance of Receivables. In consideration of the Purchaser's
delivery to or upon the order of the Seller of the Purchase Price, the Seller
does hereby sell, transfer, assign, set over and otherwise convey to the
Purchaser, without recourse (subject to the obligations of the Seller herein),
all right, title and interest of the Seller, whether now owned or hereafter
acquired, and wherever located, in and to the following (but none of the
obligations of the Seller with respect to):
(a) the Receivables (all of which are identified in the Seller's
computer files by a code indicating the Receivables are owned by the Trust and
pledged to the Indenture Trustee) and all monies received thereon after the
Cutoff Date;
(b) the security interests in, and the liens on, the Financed
Vehicles granted by Obligors in connection with the Receivables and any other
interest of the Seller in the Financed Vehicles;
(c) any proceeds with respect to the Receivables from claims on any
physical damage, credit life or disability insurance policies covering the
Financed Vehicles or Obligors;
(d) any Financed Vehicle that shall have secured a Receivable and
shall have been acquired by or on behalf of the Seller, the Purchaser, or, upon
the assignment contemplated by the Sale and Servicing Agreement, the Servicer or
the Trust;
(e) all "accounts," "chattel paper," "general intangibles" and
"promissory notes" (as such terms are defined in the Uniform Commercial Code as
from time to time in effect) constituting or relating to the foregoing; and
(f) the proceeds of any and all of the foregoing; provided, however,
that the foregoing items (a) through (f) shall not include the Purchase Price.
SECTION 2.02 Purchase Price. In consideration for the purchase of the
Receivables and related assets pursuant to Section 2.01 hereof, Purchaser shall
pay to Seller on the Closing Date an amount equal to $795,001,385.10 (the
"Purchase Price") and Seller shall execute and deliver to Purchaser an
Assignment in the form set forth as Exhibit A hereto with respect to such
Receivables and related assets. On the Closing Date, a portion of the Purchase
Price payable on such date equal to approximately $779,489,010.08 shall be paid
to Purchaser in immediately available funds and the balance of the Purchase
Price $15,512,385.10 shall be recorded as a capital contribution to Purchaser
from Seller.
SECTION 2.03 Intention of Parties. It is the intention of the Seller and
the Purchaser that the assignment and transfer contemplated herein constitute
(and shall be construed and treated for all purposes as) a true and complete
sale of the Receivables and other property
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specified in Section 2.01 hereof, conveying good title thereto free and clear of
any liens and encumbrances, from the Seller to the Purchaser. However, in the
event that such conveyance is deemed to be a pledge to secure a loan (in spite
of the express intent of the parties hereto that this conveyance constitutes,
and shall be construed and treated for all purposes, as a true and complete
sale), the Seller hereby grants to the Purchaser a first priority perfected
security interest in all of the Seller's right, title and interest in, to and
under the Receivables and other property specified in Section 2.01 hereof
whether now existing or hereafter created to secure the loan deemed to be made
in connection with such pledge and, in such event, this Agreement shall
constitute a security agreement under applicable law.
SECTION 2.04 The Closing. The sale and purchase of the Receivables shall
take place at a closing (the "Closing") at the offices of Xxxxxxxx & Xxxxx in
New York, New York on the Closing Date, simultaneously with the closings under
(a) the Sale and Servicing Agreement and (b) the Indenture.
ARTICLE III
Representations and Warranties
SECTION 3.01 Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to the Seller as of the Closing Date:
(a) Organization and Good Standing. The Purchaser has been duly
organized and is validly existing as a limited liability company in good
standing under the laws of the State of Delaware, with the power and authority
to own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had at all
relevant times, and has, the power, authority and legal right to acquire and own
the Receivables.
(b) Due Qualification. The Purchaser is duly qualified to do business
as a foreign limited liability company in good standing, and has obtained all
necessary material licenses and approvals, in all jurisdictions in which the
ownership or lease of its property or the conduct of its business shall require
such qualifications, except where the failure to be so qualified or to have
obtained such licenses or approvals would not have a material adverse effect on
the Purchaser's earnings, business affairs or business prospects.
(c) Power and Authority. The Purchaser has the requisite power and
authority to execute and deliver this Agreement and to carry out its terms, and
the execution, delivery and performance of this Agreement have been duly
authorized by the Purchaser by all necessary action.
(d) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not (i) conflict
with, result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the limited liability
company agreement of the Purchaser; (ii) breach, conflict with or violate any of
the material terms or provisions of, or constitute (with or without notice or
lapse of time) a default under, any indenture, agreement or other instrument to
which the Purchaser is a party or by which it is bound; (iii) result in the
creation or imposition of any Lien upon any of its
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properties pursuant to the terms of any such indenture, agreement or other
instrument (other than the Sale and Servicing Agreement, the Indenture and the
Trust Agreement); or (iv), to the best of the Purchaser's knowledge, violate any
order, rule or regulation applicable to the Purchaser of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser or its properties except,
in the case of clauses (ii), (iii) and (iv), for such breaches, defaults,
conflicts, liens or violations that would not have a material adverse effect on
the Purchaser's earnings, business affairs or business prospects.
(e) No Proceedings. To the best of the Purchaser's knowledge, there
are no proceedings or investigations pending or threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Purchaser or its properties: (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement, (iii) seeking any determination
or ruling that could reasonably be expected to materially and adversely affect
the performance by the Purchaser of its obligations under, or the validity or
enforceability of, this Agreement or (iv) which could reasonably be expected to
adversely affect the federal or state income tax attributes of the Notes or the
Certificates.
SECTION 3.02 Representations and Warranties of the Seller. (a) The Seller
hereby represents and warrants to the Purchaser as of the Closing Date:
(i) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Florida, with the power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is presently conducted, and had at all relevant times, and has, the
power, authority and legal right to acquire and own the Receivables.
(ii) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary material licenses and approvals, in all jurisdictions in which the
ownership or lease of its property or the conduct of its business shall require
such qualifications, except where the failure to be so qualified or to have
obtained such licenses or approvals would not have a material adverse effect on
the Seller's earnings, business affairs or business prospects.
(iii) Power and Authority. The Seller has the corporate power
and authority to execute and deliver this Agreement and to carry out its terms;
and the execution, delivery and performance of this Agreement have been duly
authorized by all necessary corporate action.
(iv) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
(i) conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or bylaws of the Seller, (ii) breach, conflict with or
violate any of the material terms or provisions of, or constitute (with or
without notice or lapse of time) a default under, any indenture, agreement or
other instrument to which the Seller is a party or by which it is bound; (iii)
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other
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than this Agreement); or (iv), to the best of the Seller's knowledge, violate
any order, rule or regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties except, in
the case of clauses (ii), (iii) and (iv), for such breaches, defaults,
conflicts, liens or violations that would not have a material adverse effect on
the Seller's earnings, business affairs or business prospects.
(v) No Proceedings. To the Seller's best knowledge, there are
no proceedings or investigations pending or threatened before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Seller or its properties: (A) asserting the
invalidity of this Agreement, (B) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement, (C) seeking any determination
or ruling that could reasonably be expected to materially and adversely affect
the performance by the Seller of its obligations under or the validity or
enforceability of, this Agreement or (D) relating to the Seller and which could
reasonably be expected to adversely affect the federal or state income tax
attributes of the Notes or the Certificates.
(b) The Seller agrees that the representations and warranties in this
Section 3.02 shall be conveyed by the Purchaser to the Issuer under the Sale and
Servicing Agreement, and pledged by the Issuer to the Indenture Trustee. The
Seller further agrees that any such Person to whom such rights are conveyed may
enforce any and all remedies for the breach thereof directly against the Seller.
The Seller agrees that the Purchaser may rely on such representations and
warranties in accepting the Receivables.
ARTICLE IV
Conditions
SECTION 4.01 Conditions to Obligation of the Purchaser. The obligation of
the Purchaser to purchase the Receivables is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct in all material
respects on the Closing Date, and the Seller shall have performed in all
material respects all obligations to be performed by it hereunder on or prior to
the Closing Date.
(b) Documents To Be Delivered by the Seller at the Closing.
(i) The Assignment. At the Closing, the Seller will execute
and deliver an Assignment substantially in the form of Exhibit A hereto.
(ii) Evidence of UCC Filing. On or prior to the Closing Date,
the Seller shall record and file, at its own expense, a UCC-1 financing
statement in each jurisdiction required by applicable law, naming the Seller as
seller or debtor, and naming the Purchaser as purchaser or secured party,
describing the Receivables and the other property conveyed hereby, meeting the
requirements of the laws of each such jurisdiction and in such manner as is
necessary to perfect the sale, transfer, assignment and conveyance of such
Receivables to the
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Purchaser. The Seller shall deliver a file-stamped copy or other evidence
satisfactory to the Purchaser of such filing to the Purchaser on or prior to the
Closing Date.
(iii) Schedule of Receivables. On or prior to the Closing Date,
the Seller shall deliver the Schedule of Receivables.
(iv) Other Documents. Such other documents as the Purchaser may
reasonably request.
(c) As a condition for the sale hereunder, the Seller agrees to make
the representations and warranties to the Purchaser in respect of the
Receivables set forth in Section 3.01 of the Sale and Servicing Agreement, and
in that connection agrees to execute the Sale and Servicing Agreement. The
Seller agrees that the Purchaser may rely on such representations and warranties
in accepting the Receivables.
(d) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement, the Indenture and the Trust Agreement to be consummated on
the Closing Date shall be consummated on such date.
SECTION 4.02 Conditions to Obligation of the Seller. The obligation of the
Seller to sell the Receivables to the Purchaser is subject to the satisfaction
of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Purchaser hereunder shall be true and correct in all material
respects on the Closing Date, and the Purchaser shall have performed in all
material respects all obligations to be performed by it hereunder on or prior to
the Closing Date.
(b) Receivables Purchase Price. On the Closing Date, the Purchaser
shall have delivered to the Seller the Purchase Price.
ARTICLE V
Covenants of the Seller
The Seller agrees with the Purchaser as follows:
SECTION 5.01 Protection of Right, Title and Interest. (a) Filings. The
Seller shall cause all financing statements and continuation statements and any
other necessary documents perfecting the right, title and interest of the Seller
and the Purchaser, respectively, in and to the Receivables and the other
property conveyed hereby to be promptly filed and at all times to be kept
recorded, registered and filed, all in such manner and in such places as may be
required by law fully to preserve and protect the right, title and interest of
the Purchaser hereunder in and to the Receivables and the other property
conveyed hereby. The Seller hereby authorizes the filing of such financing
statements and ratifies any such financing statements filed prior to the date
hereof. The Seller shall deliver to the Purchaser file stamped copies of, or
filing receipts for, any document filed as provided above, as soon as available
following such filing.
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(b) Name Change. The Seller shall not change its name, identity or
corporate structure in any manner that could reasonably be expected to make any
financing statement or continuation statement filed in accordance with paragraph
(a) above seriously misleading within the meaning of Section 9-506 of the UCC,
unless it shall have given the Purchaser at least five days' prior written
notice thereof and shall have promptly filed appropriate amendments to all
previously filed financing statements or continuation statements.
(c) Relocation. The Seller shall give the Purchaser at least 60 days'
prior written notice of any relocation of its principal executive office or
jurisdiction of formation if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement and shall promptly file any such amendment or new financing statement.
(d) Notice. If at any time the Seller shall propose to sell, grant a
security interest in, or otherwise transfer any interest in any Contract to any
prospective purchaser, lender or other transferee, the Seller shall give to such
prospective purchaser, lender or other transferee computer tapes, records or
printouts (including any restored from backup archives) that, if they shall
refer in any manner whatsoever to any Receivable, shall indicate clearly that
such Receivable has been sold to and is owned by the Purchaser.
SECTION 5.02 Other Liens or Interests. Except for the conveyances hereunder
and under the Sale and Servicing Agreement, the Indenture, the Trust Agreement
and the other Basic Documents, the Seller will not sell, pledge, assign or
transfer to any Person, or grant, create, incur, assume or suffer to exist any
Lien on, or any interest in, to or under the Receivables except for Liens that
will be released contemporaneously with the transfer of the Receivables from the
Seller to the Purchaser, and the Seller shall defend the right, title and
interest of the Purchaser in, to and under the Receivables against all claims of
third parties claiming through or under the Seller; provided, however, that the
Seller's obligations under this Section shall terminate upon the termination of
the Trust pursuant to the Trust Agreement.
SECTION 5.03 Indemnification. The Seller shall indemnify the Purchaser for
any liability resulting from (i) the failure of a Receivable to be originated in
compliance in all material respects with all requirements of applicable federal,
state and local laws and regulations thereunder, including usury laws, the
federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's
Regulations B and Z, and State adaptations of the National Consumer Act and of
the Uniform Consumer Credit Code, and other consumer credit laws and equal
credit opportunity and disclosure laws and (ii) for any breach of any of its
representations and warranties contained herein and for any failure by the
Seller to comply with its obligations under Sections 5.01 and 5.02 hereof,
provided that the Seller's repurchase obligation as set forth in Section 3.02 of
the Sale and Servicing Agreement for a breach of representations and warranties
set forth in Section 3.01 thereof is the sole remedy therefor, except with
respect to matters set forth in (i) above. These indemnity obligations shall be
in addition to any obligation that the Seller may otherwise have.
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ARTICLE VI
Miscellaneous Provisions
SECTION 6.01 Obligations of Seller. The obligations of the Seller
under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable.
SECTION 6.02 Repurchase Events. The Seller agrees to repurchase
Receivables materially and adversely affected by a breach of the representations
and warranties set forth in Section 3.01 of the Sale and Servicing Agreement,
all in the manner set forth in Section 3.02 of such agreement (each, a
"Repurchase Event"), and in that connection agrees to execute the Sale and
Servicing Agreement. This repurchase obligation of the Seller shall constitute
the sole remedy of the Purchaser, the Trust, the Indenture Trustee, the
Noteholders, the Owner Trustee or the Certificateholders against the Seller with
respect to any Repurchase Event.
SECTION 6.03 Purchaser Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to this Agreement,
the Purchaser shall assign, without recourse, representation or warranty, to the
Seller all the Purchaser's right, title and interest in and to such Receivables
and all security and documents relating thereto.
SECTION 6.04 The Trust. The Seller acknowledges and agrees that (a)
the Purchaser will, pursuant to the Sale and Servicing Agreement, sell the
Receivables to the Trust and assign its rights under this Agreement to the Trust
and (b) the Trust will, pursuant to the Indenture, grant the Receivables and its
rights under this Agreement and the Sale and Servicing Agreement to the
Indenture Trustee on behalf of the Noteholders. The Seller hereby consents to
all such sales and assignments and agrees that the Trust or, if pursuant to the
Indenture, the Indenture Trustee, may exercise the rights of the Purchaser and
enforce the obligations of the Seller hereunder directly and without the consent
of the Purchaser.
SECTION 6.05 Amendment. This Agreement may be amended from time to
time, upon (i) satisfaction of the Rating Agency Condition and (ii) delivery by
the Seller of an officer's certificate stating such amendment will not
materially and adversely affect the interest of any Noteholder or
Certificateholder, by a written amendment duly executed and delivered by the
Seller and the Purchaser, to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to add any other provision with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of this
Agreement or the Sale and Servicing Agreement, the Trust Agreement or the
Indenture or for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Noteholders or the Certificateholders in the Trust
or Receivables. This Agreement may also be amended by the Seller and the
Purchaser, with the consent of the holders of Notes evidencing not less than 50%
of the Outstanding Amount of the Controlling Securities if their interests are
materially and adversely affected thereby and the holders of Certificates
evidencing not less than 50% of the percentage interest of the Certificates if
their interests are materially and adversely affected thereby, for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
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the Noteholders or the Certificateholders in the Trust or Receivables; provided,
however, that no such amendment may (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on the
Receivables or distributions that are required to be made for the benefit of
Noteholders or Certificateholders or (ii) reduce the aforesaid percentage of the
Notes and Certificates that is required to consent to any such
amendment, without the consent of the holders of all the outstanding Notes and
Certificates affected thereby.
SECTION 6.06 Accountants' Letters. (a) PricewaterhouseCoopers will
review the characteristics of the Receivables and will compare those
characteristics to the information with respect to the Receivables contained in
the Final Prospectus; (b) the Seller will cooperate with the Purchaser and
PricewaterhouseCoopers in making available all information and taking all steps
reasonably necessary to permit such accountants to complete the review set forth
in clause (a) above; and (c) PricewaterhouseCoopers will deliver to the
Purchaser a letter, dated the date of the Final Prospectus, in the form
previously agreed to by the Seller and the Purchaser, with respect to
characteristics of the Receivables, the financial and statistical information
contained in the Final Prospectus and with respect to such other information as
may be agreed in the form of letter.
SECTION 6.07 Waivers. No failure or delay on the part of the
Purchaser, or any assignee of the Purchaser, in exercising any power, right or
remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy preclude any other
or further exercise thereof or the exercise of any other power, right or remedy.
SECTION 6.08 Notices. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by certified
mail, return receipt requested, or recognized overnight courier or by facsimile
confirmed by delivery or mail as described above, and shall be deemed to have
been duly given upon receipt (a) in the case of the Seller, to World Omni
Financial Corp., 000 Xxx Xxxxx Xxxx., Xxxxxxxxx Xxxxx, Xxxxxxx 00000, (954)
429-2200, Attention: Xxxxxxx X. Xxxxxxxxx; (b) in the case of the Purchaser, to
World Omni Auto Receivables LLC, 000 Xxx Xxxxx Xxxx., Xxxxxxxxx Xxxxx, Xxxxxxx
00000, (000) 000-0000, Attention: Xxxxxxx X. Xxxxxxxxx; and (c) in the case of
the rating agencies: (i) to Xxxxx'x Investors Service, 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, (ii) to Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx, 00000, and (iii) to Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000; or as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
SECTION 6.09 Costs and Expenses. The Seller shall pay all expenses
incident to the performance of its obligations under this Agreement and all
reasonable and documented out-of-pocket costs and expenses of the Purchaser,
excluding fees and expenses of counsel, in connection with the perfection as
against third parties of the Purchaser's right, title and interest in and to the
Receivables and the enforcement of any obligation of the Seller hereunder.
SECTION 6.10 Representations of the Seller and the Purchaser. The
respective agreements, representations, warranties and other statements by the
Seller and the Purchaser set forth in or made pursuant to this Agreement shall
remain in full force and effect and will survive the sales and assignments
referred to in Section 6.04.
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SECTION 6.11 Confidential Information. The Purchaser agrees that it
will neither use nor disclose to any Person the names and addresses of the
Obligors, except in connection with the enforcement of the Purchaser's rights
hereunder, under the Receivables, under the Sale and Servicing Agreement, the
Indenture, the Trust Agreement or any other Basic Document or as required by any
of the foregoing or by law.
SECTION 6.12 Headings and Cross-references. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in this
Agreement to Section names or numbers are to such Sections of this Agreement.
SECTION 6.13 GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO ANY OTHERWISE APPLICABLE CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER OR THEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 6.14 Counterparts. This Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers duly authorized as of the date and year
first above written.
WORLD OMNI FINANCIAL CORP.,
Seller
By: /s/ Xxxx Xxxxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Assistant Treasurer
WORLD OMNI AUTO RECEIVABLES LLC,
Purchaser
By: /s/ Xxxx Xxxxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Assistant Treasurer
Exhibit A
ASSIGNMENT
For value received, in accordance with the Receivables Purchase Agreement
dated as of March 11, 2003 between WORLD OMNI FINANCIAL CORP. (the "Seller") and
WORLD OMNI AUTO RECEIVABLES LLC (the "Purchaser"), the Seller does hereby sell,
assign, transfer and otherwise convey unto the Purchaser, without recourse
(subject to the obligations of the Seller in the Receivables Purchase
Agreement), all right, title and interest of the Seller in and to (but none of
the obligations of the Seller with respect to: (a) the Receivables (all of which
are identified in the Seller's computer files by a code indicating the
Receivables are owned by the Trust and pledged to the Indenture Trustee) and all
monies received thereon after the Cutoff Date; (b) the security interests in,
and the liens on, the Financed Vehicles granted by Obligors in connection with
the Receivables and any other interest of the Seller in the Financed Vehicles;
(c) any proceeds with respect to the Receivables from claims on any physical
damage, credit life or disability insurance policies covering the Financed
Vehicles or Obligors; (d) any Financed Vehicle that shall have secured a
Receivable and shall have been acquired by or on behalf of the Seller, the
Purchaser, or, upon the assignment contemplated by the Sale and Servicing
Agreement, the Servicer or the Trust; (e) all "accounts," "chattel paper,"
"general intangibles" and "promissory notes" (as such terms are defined in the
Uniform Commercial Code as from time to time in effect) constituting or relating
to the foregoing; and (f) the proceeds of any and all of the foregoing;
provided, however, that the foregoing items (a) through (f) shall not include
the Purchase Price. The foregoing sale does not constitute and is not intended
to result in any assumption by the Purchaser of any obligation of the
undersigned to the obligors, insurers, dealers or any other person in connection
with the Receivables, any insurance policies or any agreement or instrument
relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Receivables Purchase Agreement.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to them in the Receivables Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of the date and year first written above.
WORLD OMNI FINANCIAL CORP.
By: ____________________________________
Name:
Title:
SCHEDULE I
Schedule of Receivables
[To Be Delivered on or before the Closing Date]
