Exhibit 99.1
EXECUTION COPY
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RECEIVABLES PURCHASE AGREEMENT
by and between
WORLD OMNI FINANCIAL CORP.
and
WORLD OMNI AUTO RECEIVABLES LLC
Dated as of December 2, 2003
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TABLE OF CONTENTS
Page No.
ARTICLE I Certain Definitions................................................ 1
SECTION 1.01 Definitions................................................ 1
ARTICLE II Conveyance of Receivables......................................... 2
SECTION 2.01 Conveyance of Receivables.................................. 2
SECTION 2.02 Purchase Price............................................. 2
SECTION 2.03 Intention of Parties....................................... 3
SECTION 2.04 The Closing................................................ 3
SECTION 2.05 Covenant Regarding Subsequent Receivables.................. 3
ARTICLE III Representations and Warranties................................... 3
SECTION 3.01 Representations and Warranties of WOAR..................... 4
SECTION 3.02 Representations and Warranties of World Omni............... 4
ARTICLE IV Conditions........................................................ 6
SECTION 4.01 Conditions to Obligation of WOAR........................... 6
SECTION 4.02 Conditions to Obligation of World Omni..................... 7
ARTICLE V Covenants of World Omni............................................ 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.......................................... 8
SECTION 6.01 Obligations of World Omni.................................. 8
SECTION 6.02 Repurchase Events.......................................... 8
SECTION 6.03 WOAR Assignment of Repurchased Receivables................. 8
SECTION 6.04 The Trust.................................................. 9
SECTION 6.05 Amendment.................................................. 9
SECTION 6.06 Accountants' Letters....................................... 9
SECTION 6.07 Waivers.................................................... 9
SECTION 6.08 Notices................................................... 10
SECTION 6.09 Costs and Expenses........................................ 10
SECTION 6.10 Representations of World Omni and WOAR.................... 10
SECTION 6.11 Confidential Information.................................. 10
SECTION 6.12 Headings and Cross-references............................. 10
SECTION 6.13 GOVERNING LAW............................................. 10
SECTION 6.14 Counterparts.............................................. 10
EXHIBIT A Initial RPA Assignment
EXHIBIT B Subsequent Transfer RPA Assignment
SCHEDULE I Schedule of Receivables
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RECEIVABLES PURCHASE AGREEMENT
This RECEIVABLES PURCHASE AGREEMENT dated as of December 2, 2003, is
between World Omni Financial Corp., a Florida corporation ("World Omni"), and
World Omni Auto Receivables LLC, a Delaware limited liability company ("WOAR").
WHEREAS, in the regular course of its business, World Omni has
originated and purchased from motor vehicle dealers certain motor vehicle retail
installment sale contracts secured by new and used automobiles and light-duty
trucks;
WHEREAS, WOAR wishes to purchase on the date hereof and from time to
time during the Funding Period the Receivables (as hereinafter defined) and to
transfer the Receivables to World Omni Auto Receivables Trust 2003-B (the
"Trust"), which will issue and transfer to WOAR the $215,000,000 Class A-1,
1.13% Asset-Backed Notes, Series 2003-B (the "Class A-1 Notes"), the
$223,000,000 Class A-2, 1.54% Asset-Backed Notes, Series 2003-B (the "Class A-2
Notes"), the $235,000,000 Class A-3, 2.20% Asset-Backed Notes, Series 2003-B
(the "Class A-3 Notes"), the $201,000,000 Class A-4, 2.87% Asset-Backed Notes,
Series 2003-B (the "Class A-4 Notes") and the $39,100,000 Class B, 2.56%
Asset-Backed Notes, Series 2003-B (the "Class B Notes" and, together with the
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4
Notes, the "Notes"), with the interest and principal payments on the Notes to be
secured by the Receivables, and issue and transfer to WOAR the Certificates
representing fractional undivided interests in the property of the Trust
including the Receivables, subject to the rights of the Indenture Trustee on
behalf of the Noteholders;
WHEREAS, World Omni has agreed to make certain representations and
warranties relating to the Receivables and to pay certain expenses and amounts
with respect hereto; and
WHEREAS, World Omni and WOAR wish to set forth the terms pursuant to
which World Omni will sell the Receivables to WOAR.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
Certain Definitions
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SECTION 1.01 Definitions. Capitalized terms used but not otherwise defined
in this Agreement shall have the respective meanings assigned them in Part I of
Appendix A to the Sale and Servicing Agreement of even date herewith by and
among the Trust, WOAR and World Omni, as Servicer, as it may be amended,
supplemented or modified from time to time. All references herein to "the
Agreement" or "this Agreement" are to this Receivables Purchase Agreement as it
may be amended, supplemented or modified from time to time, the exhibits hereto
and the capitalized terms used herein which are defined in such Appendix A, and
all references herein to Articles, Sections and subsections are to Articles,
Sections or subsections of
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this Agreement unless otherwise specified. The rules of construction set forth
in Part II of such Appendix A shall be applicable to this Agreement.
ARTICLE II
Conveyance of Receivables
-------------------------
SECTION 2.01 Conveyance of Receivables. In consideration of WOAR's
delivery to or upon the order of World Omni of the Purchase Price, World Omni
does hereby sell, transfer, assign, set over and otherwise convey to WOAR,
without recourse (subject to the obligations of World Omni herein), (i) on the
Closing Date pursuant to a written assignment substantially in the form of
Exhibit A (the "Initial RPA Assignment"), and (ii) on each Subsequent Transfer
Date (each, together with the Closing Date, a "Purchase Date"), pursuant to an
assignment substantially in the form of Exhibit B (each, a "Subsequent Transfer
RPA Assignment" and, together with the Initial RPA Assignment, each an "RPA
Assignment") up to the Available Purchase Amount all right, title and interest
of World Omni, whether now owned or hereafter acquired, and wherever located, in
and to the following (but none of the obligations of World Omni with respect
to):
(a) the Receivables identified in the applicable RPA Assignment (all
of which are identified in World Omni's computer files by a code indicating the
Receivables are owned by the Trust and pledged to the Indenture Trustee) and all
monies received thereon after the applicable Cutoff Date;
(b) the security interests in, and the liens on, the Financed
Vehicles granted by Obligors in connection with the Receivables identified in
the applicable RPA Assignment and any other interest of World Omni in the
Financed Vehicles;
(c) any proceeds with respect to the Receivables identified in the
applicable RPA Assignment from claims on any physical damage, credit life or
disability insurance policies covering the Financed Vehicles or Obligors;
(d) any Financed Vehicle that shall have secured a Receivable
identified in the applicable RPA Assignment and shall have been acquired by or
on behalf of World Omni, WOAR, or, upon the assignment contemplated by the Sale
and Servicing Agreement, the Servicer or the Trust;
(e) all "accounts," "chattel paper," "general intangibles" and
"promissory notes" (as such terms are defined in the Uniform Commercial Code as
from time to time in effect) constituting or relating to the foregoing; and
(f) the proceeds of any and all of the foregoing; provided, however,
that the foregoing items (a) through (f) shall not include the Purchase Price.
SECTION 2.02 Purchase Price. (a) In consideration for the purchase of
the Initial Receivables and related assets pursuant to Section 2.01 hereof, WOAR
shall pay to World Omni on the Closing Date an amount equal to the aggregate
Starting Principal Balance for such Initial Receivables (with respect to such
Receivables, the "Purchase Price") and World Omni shall
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execute and deliver to WOAR an RPA Assignment with respect to such Initial
Receivables and related assets. On the Closing Date, a portion of such Purchase
Price payable on such date equal to approximately $752,688,916.95 shall be paid
to WOAR in immediately available funds and the balance of the Purchase Price
$13,418,678.68 shall be recorded as a capital contribution to WOAR from World
Omni.
(b) In consideration for the purchase of Subsequent Receivables and
related assets pursuant to Section 2.01 hereof, WOAR shall pay to World Omni the
Aggregate Starting Receivables Balance for such Subsequent Receivables (with
respect to such Receivables, the "Purchase Price") and World Omni shall execute
and deliver to WOAR an RPA assignment with respect to such Subsequent
Receivables and related assets. On each Subsequent Transfer Date, a portion of
such Purchase Price payable on such date equal to the amount if any, specified
by World Omni shall be paid to World Omni in the form of a capital contribution
to WOAR and the remainder shall be paid to World Omni in immediately available
funds.
SECTION 2.03 Intention of Parties. It is the intention of World Omni and
WOAR that each assignment and transfer contemplated herein and by the related
RPA Assignment shall constitute (and shall be construed and treated for all
purposes, other than for tax purposes, as) a true and complete sale of the
Receivables identified in the related RPA Assignment and other property
specified in Section 2.01 hereof, conveying good title thereto free and clear of
any liens and encumbrances, from World Omni to WOAR. However, in the event that
any such conveyance is deemed to be a pledge to secure a loan (in spite of the
express intent of the parties hereto that such conveyance constitutes, and shall
be construed and treated for all purposes, other than for tax purposes, as a
true and complete sale), World Omni hereby grants to WOAR a first priority
perfected security interest in all of World Omni's right, title and interest in,
to and under the Receivables identified in the related RPA Assignment and other
property specified in Section 2.01 hereof whether now existing or hereafter
created to secure the loan deemed to be made in connection with such pledge and,
in such event, this Agreement shall constitute a security agreement under
applicable law.
SECTION 2.04 The Closing. Each sale and purchase of the Receivables shall
take place at a closing (the "Closing") at a place, on a date and a time
mutually agreeable to World Omni and WOAR and may occur simultaneously with the
closing of any related transactions contemplated by (a) the Sale and Servicing
Agreement and (b) the Indenture.
SECTION 2.05 Covenant Regarding Subsequent Receivables. World Omni
covenants to deliver and sell to WOAR pursuant to Section 2.01 on or prior to
the end of the Funding Period Subsequent Receivables with an aggregate Starting
Principal Balance equal to the amount of the Pre-Funding Account Initial Deposit
provided that it has originated sufficient Subsequent Receivables that satisfy
the eligibility criteria specified in Section 2.03 of the Sale and Servicing
Agreement.
ARTICLE III
Representations and Warranties
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SECTION 3.01 Representations and Warranties of WOAR. WOAR hereby
represents and warrants to World Omni as of each Purchase Date:
(a) Organization and Good Standing. WOAR has been duly organized and
is validly existing as a limited liability company in good standing under the
laws of the State of Delaware, with the power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted, and had at all relevant times, and
has, the power, authority and legal right to acquire and own the Receivables.
(b) Due Qualification. WOAR is duly qualified to do business as a
foreign limited liability company in good standing, and has obtained all
necessary material licenses and approvals, in all jurisdictions in which the
ownership or lease of its property or the conduct of its business shall require
such qualifications, except where the failure to be so qualified or to have
obtained such licenses or approvals would not have a material adverse effect on
WOAR's earnings, business affairs or business prospects.
(c) Power and Authority. WOAR has the requisite power and authority
to execute and deliver this Agreement and to carry out its terms, and the
execution, delivery and performance of this Agreement have been duly authorized
by WOAR by all necessary action.
(d) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not (i) conflict
with, result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the limited liability
company agreement of WOAR; (ii) breach, conflict with or violate any of the
material terms or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement or other instrument to which
WOAR is a party or by which it is bound; (iii) result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than the Sale and Servicing
Agreement, the Indenture and the Trust Agreement); or (iv), to the best of
WOAR's knowledge, violate any order, rule or regulation applicable to WOAR of
any court or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over WOAR or its
properties except, in the case of clauses (ii), (iii) and (iv), for such
breaches, defaults, conflicts, liens or violations that would not have a
material adverse effect on WOAR's earnings, business affairs or business
prospects.
(e) No Proceedings. To the best of WOAR's knowledge, there are no
proceedings or investigations pending or threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over WOAR or its properties: (i) asserting the invalidity of
this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, (iii) seeking any determination or
ruling that could reasonably be expected to materially and adversely affect the
performance by WOAR of its obligations under, or the validity or enforceability
of, this Agreement or (iv) which could reasonably be expected to adversely
affect the federal or state income tax attributes of the Notes or the
Certificates.
SECTION 3.02 Representations and Warranties of World Omni. (a) World Omni
hereby represents and warrants to WOAR as of each Purchase Date:
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(i) Organization and Good Standing. World Omni has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Florida, with the power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is presently conducted, and had at all relevant times, and has, the
power, authority and legal right to acquire and own the Receivables.
(ii) Due Qualification. World Omni is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary material licenses and approvals, in all jurisdictions in which the
ownership or lease of its property or the conduct of its business shall require
such qualifications, except where the failure to be so qualified or to have
obtained such licenses or approvals would not have a material adverse effect on
World Omni's earnings, business affairs or business prospects.
(iii) Power and Authority. World Omni has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms; and
the execution, delivery and performance of this Agreement have been duly
authorized by all necessary corporate action.
(iv) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
(i) conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or bylaws of World Omni, (ii) breach, conflict with or
violate any of the material terms or provisions of, or constitute (with or
without notice or lapse of time) a default under, any indenture, agreement or
other instrument to which World Omni is a party or by which it is bound; (iii)
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than this Agreement); or (iv), to the best of World Omni's knowledge,
violate any order, rule or regulation applicable to World Omni of any court or
of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over World Omni or its
properties except, in the case of clauses (ii), (iii) and (iv), for such
breaches, defaults, conflicts, liens or violations that would not have a
material adverse effect on World Omni's earnings, business affairs or business
prospects.
(v) No Proceedings. To World Omni's best knowledge, there are
no proceedings or investigations pending or threatened before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over World Omni or its properties: (A) asserting the
invalidity of this Agreement, (B) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement, (C) seeking any determination
or ruling that could reasonably be expected to materially and adversely affect
the performance by World Omni of its obligations under or the validity or
enforceability of, this Agreement or (D) relating to World Omni and which could
reasonably be expected to adversely affect the federal or state income tax
attributes of the Notes or the Certificates.
(b) World Omni agrees that the representations and warranties in this
Section 3.02 shall be conveyed by WOAR to the Issuer under the Sale and
Servicing Agreement, and pledged by the Issuer to the Indenture Trustee. World
Omni further agrees that any such Person to whom such rights are conveyed may
enforce any and all remedies for the breach thereof
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directly against World Omni. World Omni agrees that WOAR may rely on such
representations and warranties in accepting the Receivables.
ARTICLE IV
Conditions
----------
SECTION 4.01 Conditions to Obligation of WOAR. The obligation of WOAR to
purchase the Receivables on any Purchase Date is subject to the satisfaction of
the following conditions:
(a) Representations and Warranties True. The representations and
warranties of World Omni hereunder shall be true and correct in all material
respects on such Purchase Date, and World Omni shall have performed in all
material respects all obligations to be performed by it hereunder on or prior to
such Purchase Date.
(b) Documents To Be Delivered by World Omni.
(i) The Assignment. On or prior to such Purchase Date, World
Omni will execute and deliver an RPA Assignment.
(ii) Evidence of UCC Filing. On or prior to such Purchase Date,
World Omni shall record and file, at its own expense, a UCC-1 financing
statement in each jurisdiction required by applicable law, naming World Omni as
World Omni or debtor, and naming WOAR as purchaser or secured party, describing
the Receivables and the other property conveyed hereby, meeting the requirements
of the laws of each such jurisdiction and in such manner as is necessary to
perfect the sale, transfer, assignment and conveyance of such Receivables to
WOAR. World Omni shall deliver a file-stamped copy or other evidence
satisfactory to WOAR of such filing to WOAR on or prior to such Purchase Date.
(iii) Schedule of Receivables. On or prior to such Purchase Date,
World Omni shall deliver the Schedule of Receivables.
(iv) Other Documents. Such other documents as WOAR may
reasonably request or, with respect to Subsequent Transfers, as required by
Section 2.03 of the Sale and Servicing Agreement.
(c) Sale and Servicing Agreement. As a condition to each sale
hereunder, World Omni agrees to make the representations and warranties to WOAR
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. World Omni agrees that WOAR may rely on such
representations and warranties in accepting the Receivables.
(d) Funding Period. The Funding Period shall not have terminated.
(e) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement, the Indenture and the Trust Agreement to be consummated on
or prior to the related Purchase Date shall be consummated on such date.
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SECTION 4.02 Conditions to Obligation of World Omni. The obligation of
World Omni to sell the Receivables to WOAR is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and
warranties of WOAR hereunder shall be true and correct in all material respects
as of such Purchase Date, and WOAR shall have performed in all material respects
all obligations to be performed by it hereunder on or prior to such Purchase
Date.
(b) Receivables Purchase Price. On such Purchase Date, WOAR shall
have delivered to World Omni the Purchase Price to the extent provided in
Section 2.02.
ARTICLE V
Covenants of World Omni
-----------------------
World Omni agrees with WOAR as follows:
SECTION 5.01 Protection of Right, Title and Interest. (a) Filings. World
Omni shall cause all financing statements and continuation statements and any
other necessary documents perfecting the right, title and interest of World Omni
and WOAR, respectively, in and to the Receivables and the other property
conveyed hereby to be promptly filed and at all times to be kept recorded,
registered and filed, all in such manner and in such places as may be required
by law fully to preserve and protect the right, title and interest of WOAR
hereunder in and to the Receivables and the other property conveyed hereby.
World Omni hereby authorizes the filing of such financing statements and
ratifies any such financing statements filed prior to the date hereof. World
Omni shall deliver to WOAR file stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
(b) Name Change. World Omni shall not change its name, identity or
corporate structure in any manner that could reasonably be expected to make any
financing statement or continuation statement filed in accordance with paragraph
(a) above seriously misleading within the meaning of Section 9-506 of the UCC,
unless it shall have given WOAR at least five days' prior written notice thereof
and shall have promptly filed appropriate amendments to all previously filed
financing statements or continuation statements.
(c) Relocation. World Omni shall give WOAR at least 60 days' prior
written notice of any relocation of its principal executive office or
jurisdiction of formation if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement and shall promptly file any such amendment or new financing statement.
(d) Notice. If at any time World Omni shall propose to sell, grant a
security interest in, or otherwise transfer any interest in any Contract to any
prospective purchaser, lender or other transferee, World Omni shall give to such
prospective purchaser, lender or other transferee computer tapes, records or
printouts (including any restored from backup archives) that, if they shall
refer in any manner whatsoever to any Receivable, shall indicate clearly that
such Receivable has been sold to and is owned by WOAR.
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SECTION 5.02 Other Liens or Interests. Except for the conveyances
hereunder and under the Sale and Servicing Agreement, the Indenture, the Trust
Agreement and the other Basic Documents, World Omni will not sell, pledge,
assign or transfer to any Person, or grant, create, incur, assume or suffer to
exist any Lien on, or any interest in, to or under the Receivables except for
Liens that will be released contemporaneously with the transfer of the
Receivables from World Omni to WOAR, and World Omni shall defend the right,
title and interest of WOAR in, to and under the Receivables against all claims
of third parties claiming through or under World Omni; provided, however, that
World Omni's obligations under this Section shall terminate upon the termination
of the Trust pursuant to the Trust Agreement.
SECTION 5.03 Indemnification. World Omni shall indemnify WOAR for any
liability resulting from (i) the failure of a Receivable to be originated in
compliance in all material respects with all requirements of applicable federal,
state and local laws and regulations thereunder, including usury laws, the
federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the 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 World
Omni to comply with its obligations under Sections 5.01 and 5.02 hereof,
provided that World Omni's repurchase obligation as set forth in Section 3.02 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 World Omni may otherwise have.
ARTICLE VI
Miscellaneous Provisions
------------------------
SECTION 6.01 Obligations of World Omni. The obligations of World Omni
under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable.
SECTION 6.02 Repurchase Events. World Omni 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 World Omni shall constitute
the sole remedy of WOAR, the Trust, the Indenture Trustee, the Noteholders, the
Owner Trustee or the Certificateholders against World Omni with respect to any
Repurchase Event.
SECTION 6.03 WOAR Assignment of Repurchased Receivables. With respect to
all Receivables repurchased by World Omni pursuant to this Agreement, WOAR shall
assign, without recourse, representation or warranty, to World Omni all WOAR's
right, title and interest in and to such Receivables and all security and
documents relating thereto.
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SECTION 6.04 The Trust. World Omni acknowledges and agrees that (a) WOAR
will, pursuant to the Sale and Servicing Agreement, sell the Receivables to the
Trust and assign its rights under this Agreement to the Trust and (b) the Trust
will, pursuant to the Indenture, grant the Receivables and its rights under this
Agreement and the Sale and Servicing Agreement to the Indenture Trustee on
behalf of the Noteholders. World Omni hereby consents to all such sales and
assignments and agrees that the Trust or, if pursuant to the Indenture, the
Indenture Trustee, may exercise the rights of WOAR and enforce the obligations
of World Omni hereunder directly and without the consent of WOAR.
SECTION 6.05 Amendment. This Agreement may be amended from time to time,
upon (i) satisfaction of the Rating Agency Condition and (ii) delivery by World
Omni 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 World Omni and WOAR, to cure
any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to add any other provision with
respect to matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement or the Sale and Servicing
Agreement, the Trust Agreement or the Indenture or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders in the Trust or Receivables. This Agreement may also be
amended by World Omni and WOAR, 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 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 Initial Receivables and will compare those
characteristics to the information with respect to the Initial Receivables
contained in the Final Prospectus; (b) World Omni will cooperate with WOAR 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 WOAR a
letter, dated the date of the Final Prospectus, in the form previously agreed to
by World Omni and WOAR, with respect to characteristics of the Initial
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 WOAR, or any
assignee of WOAR, in exercising any power, right or remedy under this Agreement
shall operate
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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 World Omni, 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 WOAR, 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, and (ii) 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. World Omni shall pay all expenses
incident to the performance of its obligations under this Agreement and all
reasonable and documented out-of-pocket costs and expenses of WOAR, excluding
fees and expenses of counsel, in connection with the perfection as against third
parties of WOAR's right, title and interest in and to the Receivables and the
enforcement of any obligation of World Omni hereunder.
SECTION 6.10 Representations of World Omni and WOAR. The respective
agreements, representations, warranties and other statements by World Omni and
WOAR set forth in or made pursuant to this Agreement or any RPA Assignment shall
remain in full force and effect and will survive the sales and assignments
referred to in Section 6.04.
SECTION 6.11 Confidential Information. The WOAR agrees that it will
neither use nor disclose to any Person the names and addresses of the Obligors,
except in connection with the enforcement of WOAR's rights hereunder, under the
Receivables, under the Sale and Servicing Agreement, the Indenture, the Trust
Agreement or any other Basic Document or as required by any of the foregoing or
by law.
SECTION 6.12 Headings and Cross-references. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
SECTION 6.13 GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO ANY OTHERWISE APPLICABLE CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER OR THEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 6.14 Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers duly authorized as of the date and year
first above written.
WORLD OMNI FINANCIAL CORP.
By: /s/ Xxxx Xxxxxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Assistant Treasurer
WORLD OMNI AUTO RECEIVABLES LLC
By: /s/ Xxxx Xxxxxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Assistant Treasurer
Exhibit A
INITIAL RPA ASSIGNMENT
For value received, in accordance with the Receivables Purchase Agreement
dated as of December 2, 2003 between WORLD OMNI FINANCIAL CORP. ("World Omni")
and WORLD OMNI AUTO RECEIVABLES LLC ("WOAR"), World Omni does hereby sell,
assign, transfer and otherwise convey unto WOAR, without recourse (subject to
the obligations of World Omni in the Receivables Purchase Agreement), all right,
title and interest of World Omni in and to (but none of the obligations of World
Omni with respect to: (a) the Initial Receivables identified on the Schedule of
Receivables, attached hereto (all of which are identified in World Omni's
computer files by a code indicating the Initial Receivables are owned by the
Trust and pledged to the Indenture Trustee) and all monies received thereon
after the Initial Cutoff Date; (b) the security interests in, and the liens on,
the Financed Vehicles granted by Obligors in connection with the Initial
Receivables and any other interest of World Omni in such Financed Vehicles; (c)
any proceeds with respect to the Initial Receivables from claims on any physical
damage, credit life or disability insurance policies covering such Financed
Vehicles or Obligors; (d) any Financed Vehicle that shall have secured an
Initial Receivable and shall have been acquired by or on behalf of World Omni,
WOAR, or, upon the assignment contemplated by the Sale and Servicing Agreement,
the Servicer or the Trust; (e) all "accounts," "chattel paper," "general
intangibles" and "promissory notes" (as such terms are defined in the Uniform
Commercial Code as from time to time in effect) constituting or relating to the
foregoing; and (f) the proceeds of any and all of the foregoing; provided,
however, that the foregoing items (a) through (f) shall not include the Purchase
Price. The foregoing sale does not constitute and is not intended to result in
any assumption by WOAR of any obligation of the undersigned to the obligors,
insurers, dealers or any other person in connection with the Initial
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:
Exhibit B
SUBSEQUENT RPA ASSIGNMENT
For value received, in accordance with the Receivables Purchase Agreement
dated as of December 2, 2003 between WORLD OMNI FINANCIAL CORP. ("World Omni")
and WORLD OMNI AUTO RECEIVABLES LLC ("WOAR"), World Omni does hereby sell,
assign, transfer and otherwise convey unto WOAR, without recourse (subject to
the obligations of World Omni in the Receivables Purchase Agreement), all right,
title and interest of World Omni in and to (but none of the obligations of World
Omni with respect to: (a) the Subsequent Receivables identified on the Schedule
of Receivables attached hereto (all of which are identified in World Omni's
computer files by a code indicating the Subsequent Receivables are owned by the
Trust and pledged to the Indenture Trustee) and all monies received thereon
after the close of business on ____, 200__; (b) the security interests in, and
the liens on, such Financed Vehicles granted by Obligors in connection with the
Subsequent Receivables and any other interest of World Omni in the Financed
Vehicles; (c) any proceeds with respect to such Subsequent Receivables from
claims on any physical damage, credit life or disability insurance policies
covering such Financed Vehicles or Obligors; (d) any Financed Vehicle that shall
have secured such a Subsequent Receivable and shall have been acquired by or on
behalf of World Omni, WOAR, or, upon the assignment contemplated by the Sale and
Servicing Agreement, the Servicer or the Trust; (e) all "accounts," "chattel
paper," "general intangibles" and "promissory notes" (as such terms are defined
in the Uniform Commercial Code as from time to time in effect) constituting or
relating to the foregoing; and (f) the proceeds of any and all of the foregoing;
provided, however, that the foregoing items (a) through (f) shall not include
the Purchase Price. The foregoing sale does not constitute and is not intended
to result in any assumption by WOAR of any obligation of the undersigned to the
obligors, insurers, dealers or any other person in connection with such
Subsequent 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.
14
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of the ___ day of _______, 200_.
WORLD OMNI FINANCIAL CORP.
By:
------------------------------------
Name:
Title:
SCHEDULE I
Schedule of Receivables
-----------------------
[To Be Delivered on or before the Closing Date]
