Exhibit 1.1
Execution Copy
WORLD OMNI MASTER OWNER TRUST
$157,000,000
Series 2001-1 Floating Rate Automobile Dealer Floorplan
Asset Backed Notes, Class A
UNDERWRITING AGREEMENT
February 21, 2001
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
As Representative of the
Several Underwriters
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
1. Introductory. WODFI LLC, a Delaware limited liability company (the
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"Transferor") and World Omni Financial Corp. ("World Omni"), a Florida
corporation, 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 $157,000,000 aggregate principal amount of
Floating Rate Asset Backed Notes, Class A (the "Notes") of the World Omni Master
Owner Trust (the "Issuer" or the "Trust") under the terms and conditions herein
contained.
The Issuer was created as a Delaware business trust under the Trust
Agreement (the "Trust Agreement"), dated as of November 22, 1999, between the
Transferor and Chase Manhattan Bank Delaware, a Delaware banking corporation
(the predecessor-by-merger to Chase Manhattan Bank USA, National Association),
as owner trustee (in such capacity, the "Owner Trustee"). The Notes will be
issued pursuant to an Amended and Restated Indenture, dated as of April 6, 2000
(the "Indenture"), between the Issuer and BNY Midwest Trust Company, an Illinois
banking corporation (as successor-in-interest to the corporate trust
administration of Xxxxxx Trust & Savings Bank), as indenture trustee (in such
capacity, the "Indenture Trustee"), as supplemented by the Series 2001-1
Supplement (the "Series Supplement"), to be dated as of the Closing Date (as
defined in Section 3 hereof), between the Issuer and the Indenture Trustee. The
Notes will be secured by the Collateral pledged to the Indenture Trustee under
the Indenture. The Collateral includes, among other things, wholesale
receivables generated by World Omni
from time to time in certain revolving financing arrangements with automobile
dealers to finance their automobile, light duty truck and other motor vehicle
inventory and collections on the Receivables. Certain Receivables existing at
the opening of business on November 22, 1999 (the "Initial Closing Date") have
been, and specified Receivables arising thereafter have been and will continue
to be, sold, assigned, transferred and conveyed by World Omni to the Transferor
pursuant to the Amended and Restated Receivables Purchase Agreement, dated as of
April 6, 2000, as amended by Amendment No. 1 thereto dated as of August 11, 2000
(the "RPA") between World Omni and the Transferor. The Transferor has sold,
assigned, transferred and conveyed and will continue to sell, assign, transfer
and convey such property to the Issuer pursuant to the Amended and Restated
Trust Sale and Servicing Agreement, dated as of April 6, 2000, as amended by
Amendment No. 1 thereto dated as of August 11, 2000 (the "Sale and Servicing
Agreement") among World Omni, the Transferor and the Issuer and the Issuer has
pledged such property to the Indenture Trustee. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in
Appendix A to the Sale and Servicing Agreement.
The Trust Agreement, the Sale and Servicing Agreement, the Indenture, the
Series Supplement, the RPA and the Administration Agreement (the "Administrative
Agreement"), dated as of November 22, 1999, among the Issuer, World Omni and the
Indenture Trustee, are referred to herein collectively as the "Basic Documents".
2. Representations and Warranties of World Omni and the Transferor.
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(a) Each of World Omni and the Transferor, jointly and severally,
represents and warrants to, and agrees with, each of the Underwriters that on
the date hereof and on the Closing Date:
(i) A registration statement on Form S-3 (No. 333-84579), including a
form of prospectus, relating to the registration of the Notes, and a pre-
effective Amendment No. 1 thereto 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,
was declared effective on March 9, 2000 under the Securities Act of 1933, as
amended (the "Act"), and either (1) is not proposed to be amended or (2) is
proposed to be amended by amendment or post-effective amendment. If the
Transferor 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 has advised the Representative that it (1) does 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) proposes 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
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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 prospectus supplement (the
"Prospectus Supplement") and prospectus (the "Base Prospectus") relating to the
Notes, in the form first transmitted to the Commission for filing after the date
of this Agreement 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 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 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 by any Underwriter through the Representative specifically for
use therein.
(iii) The Basic Documents conform in all material respects to the
descriptions thereof and the statements in relation thereto contained in the
Prospectus.
(iv) The Notes conform in all material respects to the description
thereof and the statements in relation thereto contained in the Prospectus; the
Notes have been duly and validly authorized and, when executed, issued,
authenticated and delivered
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in accordance with the Indenture and 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 Issuer, Transferor or World Omni 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) As of the Closing Date, (A) each representation and warranty of
World Omni made as of the Closing Date in the RPA will be true and correct, each
Underwriter may rely on such representations and warranties and neither World
Omni nor the Transferor will be in breach of the RPA; (B) each representation
and warranty of the Transferor and World Omni in the Sale and Servicing
Agreement made as of the Closing Date will be true and correct, each Underwriter
may rely on such representations and warranties and neither World Omni, the
Transferor nor the Trust will be in breach of the Sale and Servicing Agreement;
and (C) each representation and warranty of the Transferor in the Trust
Agreement will be true and correct, each Underwriter may rely on such
representations and warranties and the Transferor will not be in breach of the
Trust Agreement.
(vii) The representations and warranties in Officer's Certificates of
World Omni or the Transferor delivered on the Closing Date were or will be true
and correct as of the date of such Officer's Certificate, and each Underwriter
may rely on such representations and warranties as if they were set forth herein
in full.
(viii) The Pool Balance as of the Closing Date will be equal to at
least the Required Pool Balance.
(ix) Since the respective dates as of which information is given in
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 World Omni or the Transferor, whether or not arising in the ordinary course
of business and (B) there have been no transactions entered into by World Omni
or the Transferor, other than those in the ordinary course of their respective
businesses, that are material with respect to World Omni or the Transferor.
(x) The execution, delivery and performance by each of World Omni
and the Transferor, as the case may be, of this Agreement, the Basic Documents
to which it is a party and the Notes, 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,
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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 any applicable law, administrative regulation or
administrative or court decree.
(xi) 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 either World Omni or the Transferor threatened, against or
affecting World Omni or the Transferor, 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 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 World Omni or the Transferor 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 World Omni or the
Transferor, 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.
(xii) 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 Notes or the offering and sale of the
Notes, (B) the execution, delivery and performance by World Omni or the
Transferor of this Agreement, any Basic Document to which it is a party, or the
Notes or (C) the consummation by World Omni or the Transferor 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.
(xiii) This Agreement has been duly executed and delivered by World
Omni and the Transferor.
(xiv) As of the Closing Date, each of the Basic Documents to which
either World Omni or the Transferor is a party has been duly executed and
delivered by each such entity, as applicable, and, assuming the due
authorization, execution and delivery thereof by the other parties thereto, will
constitute the legal, valid and binding agreement of World Omni or the
Transferor, 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).
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(xv) The Transferor will use the proceeds of the Notes as described
under the caption "Use of Proceeds" in each of the Prospectus Supplement and the
Base Prospectus.
(xvi) Neither World Omni nor the Transferor 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.
(xvii) World Omni 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"
and the Transferor is current in the payment of any taxes required to be paid by
it.
(xviii) Each of World Omni and the Transferor 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 and each Basic Document to which it is a party or by which
it may be bound.
(b) Any Officer's Certificate signed by any officer of World Omni or the
Transferor and delivered to the Representative or counsel for the Underwriters
shall be deemed a representation and warranty of World Omni or the Transferor,
as the case may be, to each Underwriter as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Notes. On the basis of and in reliance
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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 the Notes set forth in Schedule I opposite the name of such
Underwriter, at a purchase price equal to 99.75% of the aggregate initial
principal balance thereof.
The 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 the Notes will be represented by book
entries on the records of DTC and participating members thereof. Definitive
instruments evidencing the Notes will be available only under the limited
circumstances specified in the Indenture.
The Transferor will deliver the 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 & Xxxxx, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000 (or at such other location as agreed upon among World Omni and the
Representative) at 10:00 A.M., New York time, on March 6, 2001, or at such other
time not later than five full business days thereafter, as World Omni and the
Representative determine, such time being herein referred to as the "Closing
Date". The instruments evidencing the Notes will be made available for
inspection at the above offices of Xxxxxxxx & Xxxxx (or at such other location
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agreed upon among 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"), World Omni, the Transferor and the Underwriters
have agreed that the Closing Date will be not less than nine business days
following the date hereof.
4. Certain Agreements of the Underwriters.
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(a) It is understood that the Underwriters propose to offer the 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 of
the Issuer has been paid in full, and (ii) the Trust Agreement has terminated,
the Underwriters will not institute against, or join any other Person in
instituting against, the Transferor or Issuer, 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 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 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 Notes.
5. Certain Agreements of the Transferor and World Omni. Each of World Omni and
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the Transferor 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 will file the Prospectus with the Commission pursuant
to and in accordance with subparagraph (2) (or, if applicable and if consented
to by the Representative, subparagraph (5)) of Rule 424(b), not later than date
required under Rule 424(b). The Transferor will advise the Representative
promptly of any such filing pursuant to Rule 424(b).
(b) The Transferor 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 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
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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 will use its best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible its
lifting, if issued. The Transferor 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 Notes as contemplated in this Agreement and in the Prospectus. The
Transferor 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 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 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 will cause the Indenture Trustee to make
generally available to the Noteholders an earnings statement with respect to the
Issuer covering a period of at least 12 months beginning after the effective
date of the Registration Statement (as defined in Rule 158 under the Act) 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 of the Registration Statement, except that, if such fourth fiscal quarter
is the last quarter of the fiscal year of the Issuer, "Availability Date" means
the 90th day after the end of such fourth fiscal quarter.
(e) The Transferor 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 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 will arrange for the qualification of the 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 Notes, provided that neither the
Transferor nor the Issuer 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.
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(g) So long as any Notes are outstanding, the Transferor 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 practicable after each becomes
available, copies of (i) each report relating to the Notes required to be
prepared under Sections 7.3 and 7.4 of the Indenture, (ii) the annual statement
as to compliance and the annual statement of a firm of independent public
accountants furnished pursuant to Section 3.09 of the Indenture and Section 3.6
of the Sale and Servicing Agreement, respectively, (iii) each certificate or
notice delivered by the Servicer pursuant to Sections 3.4 and 3.5 of the Sale
and Servicing Agreement and Section 5.02 of the Series Supplement, (iv) each
periodic report required to be filed by the Transferor or the Issuer 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,
the Issuer or the Notes as the Representative may reasonably request from time
to time.
(h) World Omni and the Transferor 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 Indenture Trustee, the Owner Trustee and their respective
counsel, (iii) the fees and disbursements of counsel and the independent public
accountants of the Transferor, the Issuer and World Omni, (iv) the fees charged
by each of Xxxxx'x Investors Service, Inc. ("Xxxxx'x"), Xxxxx, Inc. ("Fitch")
and Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. ("Standard & Poor's" and, together with Moody's and Fitch, the "Rating
Agencies") in connection with the rating of the Notes, (v) the fees of DTC in
connection with the book-entry registration of the 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 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(g) or clause (i) or clause (ii) of Section 10 hereof, the Transferor 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, neither the
Transferor nor 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 similar to the Notes (it being
understood that this Section 5(i) shall not apply to (a) any securities issued
by a trust formed by World Omni Auto Receivables LLC or securities backed by
such securities, (b) any securities issued by a trust formed by World Omni or an
affiliate of World Omni for the purpose of securitizing lease receivables, (c)
$120,000,000 aggregate principal amount of the Issuer's Series 2001-1 Floating
Rate Asset Backed Notes, Class A, which will be purchased directly by Xxxxxxx
Xxxxx Bank USA pursuant to a Purchase Agreement, dated as of the date hereof,
among the Transferor, World Omni and Xxxxxxx Xxxxx Bank USA, (d) the Issuer's
Series 2001-1 Floating Rate Automobile
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Dealer Floorplan Asset Backed Notes, Class B and (e) renewals of or amendments
to existing financing arrangements).
(j) So long as any Notes are outstanding, the Transferor 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 or
any Rating Agency by counsel to the Transferor 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
Notes by any Rating Agency is conditional upon the furnishing of documents or
the taking of any other actions by the Transferor, the Issuer or World Omni, the
Transferor, the Issuer 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
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several Underwriters to purchase and pay for the Notes will be subject to the
accuracy of the respective representations and warranties on the part of the
Transferor and World Omni herein, to the accuracy of the statements of the
respective officers of the Transferor and World Omni made pursuant to the
provisions hereof, to the performance by the Transferor 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, World Omni, the
Issuer 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, World Omni, the Issuer 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
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knowledge of the Transferor, World Omni or the Representative, shall be
contemplated by the Commission.
(c) The Representative shall have received certificates of the President,
any Vice President or the Treasurer or any Assistant Treasurer of (i) the
Transferor and (ii) World Omni, each dated the Closing Date, in which such
officer shall state that (1) the representations and warranties of the
Transferor and World Omni, as the case may be, in each Basic Document to which
it is a party and in this Agreement are true and correct on the Closing Date,
(2) to the best knowledge of such officer after reasonable investigation, the
Transferor or World Omni, 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 World Omni, as the case may be, except
as set forth in or contemplated by the Prospectus.
(d) The Representative shall have received:
(i) The favorable opinion of Xxxxxxxx & Xxxxx, special counsel to the
Transferor 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:
(1) Assuming the due authorization, execution and delivery
thereof by the other parties thereto, each Basic Document will constitute a
valid and binding agreement of the Issuer, the Transferor and World Omni, as the
case may be, 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).
(2) Assuming the Notes have been duly and validly authorized,
when executed, authenticated and delivered as specified in the Indenture and the
Series Supplement and when delivered to the Underwriters against payment of the
consideration specified herein, the Notes will constitute a valid and binding
obligation of the Issuer, enforceable in accordance with their terms and the
holder of the Notes will be entitled to the benefits accorded by the Indenture
and the Series Supplement.
(3) The statements in the Prospectus Supplement under the
captions "Summary of Terms" and "Series Provisions", and in the Base Prospectus
under the captions "Summary", "The Trust", "The Accounts", "The Notes" and "The
Transfer and Servicing Agreements", insofar as such statements purport to
summarize certain terms or provisions of the Notes, the Transferor Certificate
and the Basic Documents, provide a fair summary of such provisions, and the
statements in the Prospectus
11
Supplement under "Certain Federal Income Tax Consequences" and "ERISA
Considerations", and the Base Prospectus under "Certain Legal Aspects of the
ReceivablesCertain Matters Relating to Bankruptcy", "Certain Federal Income Tax
Consequences" 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 have been prepared or reviewed by such
counsel and are correct in all material respects.
(4) Neither the Transferor nor the Issuer is an "investment
company" as defined in the Investment Company Act.
(5) The Issuer, the Transferor and World Omni are not required
to obtain any consent, approval, authorization or order of any federal court or
federal governmental agency in order to obtain the right to enter into any of
the Basic Documents or to take any of the actions taken by the Issuer, the
Transferor or World Omni on the Closing Date to consummate the closing under the
Basic Documents, except such as may be required under the Act, the Rules and
Regulations or state securities laws, and 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.
(6) The Commission's Division of Corporation Finance, pursuant
to authority delegated to it by the Commission, has entered an order declaring
the Registration Statement effective under the Act on March 9, 2000 and such
counsel has no knowledge that any stop order suspending its effectiveness has
been issued or that any proceedings for that purpose are pending before, or
overtly threatened by, the Commission. Section 309(a) of the Trust Indenture Act
provides that the Indenture shall be deemed to have been qualified under the
Trust Indenture Act when the Registration Statement became effective under the
Act. Nothing has come to such counsel's attention that has caused them to
conclude (i) the Registration Statement at its effective date contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or (ii) the Prospectus at the date it bears or on the Closing Date contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading or (iii) as of the effective date,
either the Registration Statement or the Prospectus appeared on its face not to
be responsive in all material respects to the requirements of Form S-3.
(ii) The favorable opinion of Bilzin Xxxxxxx Xxxx Xxxxx Price &
Xxxxxxx LLP, counsel to 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:
(1) World Omni has been incorporated under the Florida General
Corporation Act and its status is active; World Omni has the corporate power
12
and authority to own its properties and conduct its business as described in the
Prospectus.
(2) World Omni has the corporate power and authority to execute,
deliver and perform its obligations under the Basic Documents; and had at all
relevant times, and on the Closing Date has, the corporate power and authority
to acquire, own and transfer the Receivables and the other property transferred
by it to the Transferor pursuant to the Receivables Purchase Agreement.
(3) World Omni, to its knowledge, has obtained all licenses and
approvals required for the conduct of its business or the ownership or leasing
of its property, to the extent that failure to obtain such licenses and
approvals would render any Receivable or any other material part of the corpus
of the Trust unenforceable or would materially and adversely affect the ability
of World Omni to perform any of its obligations under, or the enforceability of,
any Basic Document or this Agreement.
(4) This Agreement and each Basic Document to which World Omni
is a party has been duly authorized, executed and delivered by World Omni.
(5) None of (1) the transfer of the Receivables and the other
property of the Issuer transferred by World Omni to the Transferor pursuant to
the Receivables Purchase Agreement, (2) the compliance by World Omni with all of
the provisions of the Basic Documents or (3) the consummation of the
transactions herein and therein contemplated, 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 upon any property or assets of World Omni
pursuant to the terms of (i) its articles of incorporation or bylaws, (ii) to
its knowledge, except as otherwise provided in the Basic Documents, any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
(other than any document relating to any other supplement for the Trust) to
which World Omni is a party or by which it may be bound, or to which any of the
property or assets of World Omni is subject, or (iii) any applicable Florida or
federal law, statute or regulation or, to the best of their knowledge and
information, any judgment, order or decree applicable to World Omni of any
court, regulatory body or other governmental instrumentality having jurisdiction
over World Omni except, in the case of clause (ii) and the second part of clause
(iii) above, for defaults, breaches or violations that do not, in the aggregate,
have a material adverse effect on World Omni.
(6) To its knowledge, (A) no authorization, approval, consent,
or order of any court, governmental authority, or agency in the State of Florida
is legally required for the execution, delivery or performance of the Basic
Documents, the issuance of the Transferor Certificate, and the issuance,
offering or sale of the Notes, except those which may be required under the
state securities laws of the State of Florida, and (B) all filings required to
be made with any Florida governmental body in connection with the execution,
delivery or performance of the Basic Documents, the issuance, offering or sale
of the Notes or the issuance of the Transferor Certificate have been made,
except such filings as may be required under the state securities laws of the
State of Florida.
13
(7) To the best of its knowledge and information, (A) there
are no actions, proceedings or investigations pending or threatened, other than
those disclosed in the Registration Statement, (w) asserting the invalidity of
this Agreement, any Basic Document or the Notes, (x) seeking to prevent the
issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement or the Basic Documents, (y) that might materially
and adversely affect the performance by World Omni of its respective obligations
under, or the validity or enforceability of, this Agreement or any Basic
Document or (z) seeking adversely to affect the federal or state income tax
attributes of the Notes as described in the Prospectus Supplement under the
captions "Certain Federal Income Tax Consequences" and "Florida Income
Taxation", and in the Base Prospectus under the captions "Certain Federal Income
Tax Consequences" and "State and Local Tax Consequences".
(iii) The favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A.,
special Delaware counsel to the Transferor, the Issuer 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:
(1) The Transferor has been duly formed and is validly
existing in good standing as a limited liability company under the Delaware
Limited Liability Company Act (6 Del. C, (S)18-101, et seq.) (the "LLC Act").
------ -- ---
(2) Under the LLC Act and the Second Amended and Restated
Limited Liability Company Agreement of the Transferor, dated as of March 31,
2000 (the "Company Agreement"), the Transferor has all requisite limited
liability company power and authority to execute and deliver, and to perform its
legal obligations under, this Agreement and each Basic Document to which it is a
party.
(3) The Issuer has been duly created and is validly existing
in good standing as a business trust under the Delaware Business Trust Act (12
Del C., (S)3801 et seq.) (the "Trust Act").
------ -- ---
(4) Under the Trust Act and the Trust Agreement, the Issuer
has all requisite trust power and authority to execute and deliver, and to
perform its obligations under, each Basic Document to which it is a party.
(5) Under the LLC Act and the Company Agreement, the execution
and delivery by the Transferor of this Agreement and each Basic Document to
which it is a party, and the performance by the Transferor of its obligations
thereunder, have been duly authorized by all requisite limited liability company
action on the part of the Transferor.
(6) Under the Trust Act and the Trust Agreement, the execution
and delivery by the Issuer of each Basic Document to which it is a party, and
the performance by the Issuer of its obligations thereunder, have been duly
authorized by all requisite trust action on the part of the Issuer.
14
(7) The execution and delivery by the Transferor of each Basic
Document to which it is a party, and the performance by the Transferor of its
obligations thereunder, do not violate, conflict with, result in a breach of or
constitute a default under (i) the Certificate of Formation of the Transferor,
(ii) the Company Agreement, or (iii) any Delaware law, statute or regulation,
except that no opinion is expressed herein concerning any statute or regulation
relating to securities laws.
(8) The execution and delivery by the Issuer of each Basic
Document to which it is a party, and the performance by the Issuer of its
obligations thereunder, do not violate, conflict with, result in a breach of or
constitute a default under (i) the Certificate of Trust of the Issuer, (ii) the
Trust Agreement, or (iii) any Delaware law, statute or regulation, except that
no opinion is expressed herein concerning any statute or regulation relating to
securities laws.
(9) No consent, approval, authorization or order of, or
registration, filing or declaration with, any Delaware court or governmental
agency or body is required solely in connection with the Transferor's execution
and delivery of, and the performance of its obligations under, each Basic
Document to which it is a party.
(10) No consent, approval, authorization or order of, or
registration, filing or declaration with, any Delaware court or governmental
agency or body is required solely in connection with the Issuer's execution and
delivery of, and the performance of its obligations under, each Basic Document
to which it is a party.
(11) Assuming the due authorization, execution and delivery
thereof by the other parties thereto, the Trust Agreement will constitute a
valid and binding agreement of the Owner Trustee, enforceable against the Owner
Trustee 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).
(iv) (i) The favorable opinion of Xxxxxxxx & Xxxxx, special counsel to
the Transferor, dated the Closing Date and to the effect that (A) the Notes will
properly be characterized as indebtedness for Federal income tax purposes and
(B) the Trust will not be classified as an association (or a publicly traded
partnership) taxable as a corporation for federal income tax purposes; and (ii)
The favorable opinion of Bilzin Xxxxxxx Xxxx Xxxxx Price & Xxxxxxx LLP, special
Florida tax counsel to the Transferor, dated the Closing Date and satisfactory
in form and substance to the Representative and counsel to the Underwriters, to
the effect that (A) the Trust will not be classified as an association taxable
as a corporation for Florida income tax purposes but instead will be
characterized as it is characterized for federal income tax purposes, (B) 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 and (C) the statements
in the Prospectus Supplement under the caption "Florida Income Taxation" and in
the Base Prospectus under the caption "State
15
and Local Tax Consequences", 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.
(v) 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, the Issuer or World Omni to the Owner Trustee, the
Indenture Trustee or any Rating Agency, including a reliance letter with respect
to a legal opinion relating to (i) the transfer of the Receivables and related
property from World Omni to the Transferor, from the Transferor to the Issuer
and the pledge of such property by the Issuer to the Indenture Trustee and (ii)
the perfection of the Indenture Trustee's security interest in the Collateral.
(vi) The favorable opinion of special 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:
(1) 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 Illinois with full power and authority (corporate and other) to
execute, deliver and perform its obligations as Indenture Trustee under each
Basic Document to which the Indenture Trustee is a party.
(2) 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, liquidation or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(3) The Notes have been duly authenticated and delivered by the
Indenture Trustee in accordance with the terms of the Indenture.
(4) 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 filing with or the taking of any
other action with respect to, any governmental authority or agency of the United
States or the State of Illinois governing the banking or trust powers of the
Indenture Trustee.
(5) Neither the execution, delivery or performance by the
Indenture Trustee of the Basic Documents to which it is a party nor the
compliance with the terms and provisions thereof, nor the performance of its
obligations thereunder,
16
conflicts or results in a breach of or constitutes a default under any of the
terms, conditions or provisions of any law, government rule or regulation of the
United States or the State of Illinois governing the Indenture Trustee or to our
knowledge, any order, writ, injunction or decree of any court or governmental
authority against the Indenture Trustee or by which it or any of its properties
is bound or, to our knowledge, any indenture, mortgage or contract or other
agreement or interest to which the Indenture Trustee is a party or by which it
or any of its properties is bound, or results in the creation or imposition of
any lien, charge or encumbrance upon any of its properties pursuant to any
agreement or instrument, except encumbrances and security interests contemplated
by the Basic Documents.
(vii) The favorable opinion of 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:
(1) The Owner Trustee has been duly organized and is validly
existing and in good standing as a national banking association under the laws
of the United States.
(2) The Owner Trustee has the banking power and authority, and
the fiduciary power under the laws of the United States, to execute and deliver
the Notes and the 2001-1 Series Supplement, and to perform its obligations under
the Trust Agreement and the obligation of the Owner Trustee under the Indenture,
as amended by the 2001-1 Series Supplement.
(3) The Trust Agreement is a binding obligation of the Owner
Trustee by virtue of its merger with Chase Manhattan Bank Delaware and the Owner
Trustee has succeeded to the rights and obligations of the Owner Trustee under
the Indenture and the TSSA.
(4) The 2001-1 Series Supplement, and the Notes have been duly
executed and delivered by the Owner Trustee on behalf of the Trust.
(5) The execution and delivery by the Owner Trustee, as Owner
Trustee, of the 2001-1 Series Supplement, and the Notes and the performance of
its obligations thereunder (i) does not and will not constitute or result in a
default under, a breach or violation of, or the creation of any lien or
encumbrance of any of its property under the Owner Trustee's articles of
association or by-laws or, to special counsel's knowledge, any material
agreement, instrument, judgment, injunction or order known to us to which it is
a party or any state of federal law governing the banking or trust powers of the
Owner Trustee; and (ii) does not require the consent or approval of, the giving
of notice to, the registration with or the taking of any other substantive
action with respect to, any person or entity, including any governmental
authority or agency under any existing federal or Delaware law.
(viii) The favorable opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP,
counsel for the Underwriters, dated the Closing Date, with respect to the
validity of the
17
Notes and such other related matters as the Representative shall request, which
opinions shall be satisfactory in form and substance to the Representative and
counsel for the Underwriters.
(e) The Notes shall be rated in the highest rating category for long-term
debt obligations by each of Xxxxx'x, Fitch and Standard & Poor's.
(f) 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 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 sale of the Notes as
herein contemplated shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(g) 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 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 World Omni and the Transferor 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;
(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
18
(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); provided, that the
foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter (or to the benefit of the person controlling
such Underwriter) from whom the person asserting any such losses, liabilities,
claims, damages or expenses purchased Notes if such untrue statement or omission
or alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (as amended or supplemented if the
Transferor or World Omni shall have furnished to the Underwriters any amendments
or supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented if the Transferor or World Omni shall have furnished to
the Underwriters any amendments or supplements thereto) shall not have been
furnished to such person at or prior to the written confirmation of the sale of
such Notes to such person.
(b) Each Underwriter severally and not jointly 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 in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 7(a) above, counsel to the indemnified
19
parties shall be selected by the Representative, and, in the case of parties
indemnified pursuant to Section 7(b) above, counsel to the indemnified parties
shall be selected by the World Omni. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for 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. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 7 or Section 8 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
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 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 Notes underwritten by it and
20
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 Notes set forth opposite their respective names in
Schedule I hereto and not joint.
9. Survival of Certain Representations and Obligations. The respective
---------------------------------------------------
indemnities, agreements, representations, warranties and other statements of the
Transferor 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, World Omni or any of
their respective representatives, officers or directors or any controlling
Person, and will survive delivery of and payment for the Notes. If for any
reason the purchase of the Notes by the Underwriters is not consummated, the
Transferor 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 and the Underwriters pursuant to
Section 7 and 8 hereof shall remain in effect. If the purchase of the 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
or Section 11(b) hereof, the Transferor 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 Notes.
10. Termination of Agreement. The Representative may terminate this Agreement,
------------------------
by notice to the Transferor 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 or
World Omni, 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 or World Omni 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 or
World Omni (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
21
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 or Illinois authorities.
11. Default By One or More of the Underwriters. If one or more of the
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Underwriters shall fail at the Closing Date to purchase the 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:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the total aggregate principal amount of the 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 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 World Omni 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
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(i) the Underwriters, shall be directed to the Representative and will be
mailed, delivered or sent by facsimile and confirmed to it at Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, North Tower, World Financial Center, New
York, New York 10281-1201, Attention: Xxxxxxxx X. Xxxx, Managing Director
(facsimile number (000) 000-0000); (ii) the Transferor, will be mailed,
delivered or sent by facsimile and confirmed to it at WODFI LLC, 000 X.X. 00xx
Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Vice
President and Treasurer (facsimile number (000) 000-0000); (iii) the Issuer,
will be mailed, delivered or sent by facsimile and confirmed to it at c/o WODFI
LLC, 000 X.X. 00xx Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X.
22
Ossenbeck, Vice President and 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. 00xx Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx
00000, Attention: Xxxxxxx X. Xxxxxxxxx, Vice President and Treasurer (facsimile
number (000) 000-0000) in each case (ii), (iii) and (iv) with a copy to Xxxxx
Xxxx Xxxxxxx, Senior Counsel-Treasury (facsimile number (000) 000-0000).
13. Successors. This Agreement will inure to the benefit of and be binding
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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
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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.
15. Miscellaneous. This Agreement constitutes the entire agreement and
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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
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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
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accordance with, the laws of the State of New York without regard to any
otherwise applicable principles of conflicts of laws.
23
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 and World Omni and the
Underwriters in accordance with its terms.
Very truly yours,
WODFI LLC
By: __________________________
Xxxx X. Xxxxxxx
Assistant Treasurer
WORLD OMNI FINANCIAL CORP.
By: ___________________________
Xxxx X. Xxxxxxx
Assistant Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: ___________________________
Name:
Title:
For itself and as Representative of the other Underwriters
named in Schedule I hereto.
SCHEDULE I
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Principal
Name of Underwriter Amount of Class
A Notes
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Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx
Incorporated...................... $110,000,000
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Chase Securities Inc............... $ 47,000,000
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Total.......................... $157,000,000
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