1
EXHIBIT 1.1
WORLD OMNI 1997-A AUTOMOBILE LEASE SECURITIZATION TRUST
$250,000,000
______% Automobile Lease Asset Backed Certificates, Class A-1
$290,000,000
______% Automobile Lease Asset Backed Certificates, Class A-2
$290,000,000
______% Automobile Lease Asset Backed Certificates, Class A-3
$277,297,857
______% Automobile Lease Asset Backed Certificates, Class A-4
UNDERWRITING AGREEMENT
April __, 1997
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
As Representative of the
Several Underwriters
World Financial Center
North Tower
New York, New York 10281-1201
Dear Sirs:
I. Introductory. World Xxxx Xxxxx Securitization L.P., a
Delaware limited partnership (the "Transferor"), Auto Lease Finance
L.P., a Delaware limited partnership ("ALFI L.P."), and World Omni
Financial Corp., a Florida corporation ("World Omni"), hereby
confirm their respective agreements with you and each of the other
underwriters named in Schedule I hereto (the "Underwriters"), for
whom you are acting as representative (the "Representative"), with
respect to the sale by the Transferor to the Underwriters of
$250,000,000 aggregate principal amount of ____% Automobile Lease
Asset Backed Certificates, Class A-1 (the "Class A-1 Certificates"),
$290,000,000 aggregate principal amount of ____% Automobile Lease
Asset Backed Certificates, Class A-2 (the "Class A-2 Certificates"),
$290,000,000 aggregate principal amount of ____% Automobile Lease
Asset Backed Certificates, Class A- 3 (the "Class A-3 Certificates")
and $277,297,857 aggregate principal
2
amount of ____% Automobile Lease Asset Backed Certificates, Class
A-4 (the "Class A-4 Certificates" and, together with the Class A-1
Certificates, the Class A-2 Certificates and the Class A-3
Certificates, the "Class A Certificates") of the World Omni 1997-A
Automobile Lease Securitization Trust (the "Trust") under the terms
and conditions herein contained. The sole general partner of the
Transferor is World Omni Lease Securitization, Inc. ("WOLSI" or the
"WOLSI General Partner"), a Delaware corporation and a wholly owned,
special purpose finance subsidiary of World Omni, and the sole
limited partner of the Transferor is World Omni (in such capacity,
the "WOLSI Limited Partner"). The sole general partner of XXXX X.X.
is Auto Lease Finance, Inc. ("ALFI" or the "ALFI General Partner"),
a Delaware corporation and a wholly owned, special purpose finance
subsidiary of World Omni, and the sole limited partner of ALFI L.P.
is World Omni (in such capacity, the "ALFI Limited Partner").
Simultaneously with the issuance of the Class A Certificates,
the Transferor will cause the Trust to issue $65,839,332 aggregate
principal amount of Automobile Lease Asset Backed Certificates,
Class B (the "Class B Certificates" and, together with the Class A
Certificates, the "Investor Certificates"). The Investor
Certificates will be issued pursuant to a securitization trust
agreement, dated as of April 1, 1997 (the "Securitization Trust
Agreement"), between the Transferor and First Bank National
Association ("First Bank"), as trustee (in such capacity, the
"Trustee"). The Investor Certificates will represent undivided
interests in the Trust. The Transferor will own the undivided
interest in the Trust not evidenced by the Investor Certificates
(the "Transferor Interest"). The Class B Certificates will be
subordinated to the Class A Certificates, and the certificate
evidencing the Transferor Interest (the "Transferor Certificate"
and, together with the Investor Certificates, the "Certificates")
will be subordinated to the Investor Certificates, in each case to
the extent described in the Securitization Trust Agreement.
Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Securitization Trust
Agreement.
The property of the Trust will consist primarily of an
undivided 99.8% interest (the "SUBI Interest") in a special unit of
beneficial interest (the "SUBI"), which, in turn, will evidence a
beneficial interest in certain specified assets of World Omni LT, an
Alabama business trust (the "Origination Trust"), and monies on
deposit in the Reserve Fund, the Residual Value Surplus Account and
in certain other accounts (collectively, the "SUBI Assets"). The
assets of the Origination Trust (the "Origination Trust Assets")
will consist primarily of retail closed-end lease contracts assigned
to the Origination Trust by motor vehicle dealers in the World Omni
network of dealers, the automobiles and light duty trucks relating
thereto and the proceeds thereof, and payments made under certain
insurance policies relating to such lease contracts, the related
lessees or such leased vehicles, including payments made under a
residual value insurance policy dated as of April 30, 1997 (the
"Residual Value Insurance Policy") issued by American International
Specialty Lines Insurance Company (the "Insurer") in respect of the
Leased Vehicles. The SUBI will not evidence a direct interest in
the SUBI Assets, nor will it represent a beneficial interest in any
Origination Trust Assets other than the SUBI Assets.
2
3
The SUBI Interest will be evidenced by a certificate (the
"SUBI Certificate") issued to ALFI L.P. by the Origination Trust
pursuant to a trust agreement as amended and restated as of July 1,
1994, as amended by Amendment No. 1 thereto dated as of November 1,
1994, and as supplemented by a supplement dated as of April 1, 1997
(collectively, the "SUBI Trust Agreement"), in each case among ALFI
L.P., as initial grantor and initial beneficiary, VT Inc., as
trustee (the "Origination Trustee"), and (for certain limited
purposes only) First Bank, as trust agent (in such capacity, the
"Trust Agent"). The SUBI Certificate will be sold by ALFI L.P. to
the Transferor pursuant to the SUBI certificate purchase and sale
agreement, dated as of April 1, 1997 (the "Certificate Purchase and
Sale Agreement"), between the Transferor and ALFI L.P. The
Origination Trust Assets (including the SUBI Assets) will be
serviced by World Omni pursuant to a second amended and restated
servicing agreement dated as of July 1, 1994, as supplemented by a
servicing supplement dated as of April 1, 1997 (collectively, the
"Servicing Agreement"), in each case between the Origination Trustee
and World Omni. The Securitization Trust Agreement, the SUBI Trust
Agreement, the Certificate Purchase and Sale Agreement, the
Servicing Agreement, the backup security agreement, dated as of
April 1, 1997 (the "Backup Security Agreement"), among World Omni,
ALFI L.P., the Origination Trustee, the Transferor and the Trustee,
the support agreement, dated as of October 1, 1995, as amended (the
"Support Agreement"), by World Omni in favor of the Transferor, the
intercreditor agreement, dated as of November 1, 1994, among World
Omni, ALFI L.P., the Transferor, the Trustee, the Origination
Trustee, the Trust Agent and the other parties named in Appendix A
thereto, together with an accession agreement thereto (collectively,
the "Intercreditor Agreement"), between the Trustee and the
Transferor, and the premium payment agreement, dated as of April 30,
1997 (the "Insurance Agreement"), between World Omni and the
Insurer, are referred to herein collectively as the "Basic
Documents".
2. Representations and Warranties of the Transferor, ALFI
L.P. and World Omni.
(a) Each of the Transferor, XXXX L.P. and World Omni,
jointly and severally, represents and warrants to, and agrees with,
each of the Underwriters that:
(i) A registration statement on Form S-1 (No.
333-21917), including a form of prospectus, relating to
the Class A Certificates has been filed with the Securities
and Exchange Commission (the "Commission") and either (1) has
been declared effective under the Securities Act of 1933, as
amended (the "Act"), and is not proposed to be amended or (2)
is proposed to be amended by amendment or post-effective
amendment. If the Transferor or ALFI L.P. does not propose to
amend such registration statement and if any post-effective
amendment to such registration statement has been filed with
the Commission prior to the execution and delivery of this
Agreement, the most recent such post-effective amendment has
been declared effective by the Commission. For purposes of
this Agreement, "Effective Time" means if the Transferor and
ALFI L.P. have advised the Representative that they (1) do not
propose to amend such registration statement, the date and
time as of which such registration statement, or the most
recent post-effective amendment thereto (if any) filed prior
to the execution and delivery of this Agreement, was declared
effective by the Commission or (2) propose to file an
amendment or post-effective amendment to such
3
4
registration statement, the date and time as of which such
registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared
effective by the Commission. "Effective Date" means the date
of the Effective Time. Such registration statement, as
amended at the Effective Time, including all information, if
any, deemed to be a part of such registration statement as of
the Effective Time pursuant to Rule 430A(b) under the Act, and
including the exhibits thereto, is hereinafter referred to as
the "Registration Statement", and the form of prospectus
relating to the Class A Certificates, in the form transmitted
to the Commission for filing pursuant to and in accordance
with Rule 424(b) under the Act ("Rule 424(b)"), or (if no such
filing is required) as included in the Registration Statement,
is hereinafter referred to as the "Prospectus". The
Prospectus delivered to you for use in connection with the
offering of the Class A Certificates 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 and ALFI L.P.
by any Underwriter through the Representative specifically for
use therein. The Prospectus delivered to you for use in
connection with the offering of the Class A Certificates will
be identical to the electronically transmitted copies thereof
4
5
filed with the Commission pursuant to the XXXXX system, except
to the extent permitted by Regulation S-T.
(iii) The Basic Documents, the SUBI Certificate, the
certificate evidencing the remaining 0.2% undivided interest
in the SUBI other than the SUBI Interest (the "Retained SUBI
Certificate") and the Residual Value Insurance Policy conform
in all material respects to the descriptions thereof and the
statements in relation thereto contained in the Prospectus;
the SUBI Certificate and the Retained SUBI Certificate have
been duly and validly authorized and, when executed, issued,
authenticated and delivered in accordance with the SUBI Trust
Agreement, will be duly and validly issued and outstanding and
entitled to the benefits of the SUBI Trust Agreement.
(iv) The Certificates conform in all material respects
to the description thereof and the statements in relation
thereto contained in the Prospectus; the Certificates have
been duly and validly authorized and, when executed, issued,
authenticated and delivered in accordance with the
Securitization Trust Agreement and, in the case of the Class A
Certificates, 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 Securitization Trust Agreement.
(v) None of the Transferor, World Omni, WOLSI, ALFI,
ALFI L.P., the Origination Trust or the Trust is now or, as a
result of the transactions contemplated by this Agreement,
will become, an "investment company", nor is any of them
"controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(vi) Each of the Contracts and Leased Vehicles
allocated as a SUBI Asset on the Closing Date or on the
related Transfer Date will meet the eligibility criteria for
selection described in the SUBI Trust Agreement.
(vii) Each Initial Contract is, and each Subsequent
Contract will be, in substantially one of the forms attached
as an Exhibit to the SUBI Trust Agreement and constitutes or
will constitute on the related Transfer Date the legal, valid,
binding and enforceable agreement of the parties thereto; and
each Contract complies or will comply on the Closing Date or
on the related Transfer Date in all material respects as to
content and form with all applicable state and federal laws,
including without limitation, consumer protection laws.
(viii) At or prior to the Closing Date, the Origination
Trustee will have allocated Contracts and Leased Vehicles as
SUBI Assets that have an Aggregate Net Investment Value as of
the Initial Cutoff Date equal to $1,199,477,720.
(b) The Transferor and, to the extent specified below, World
Omni, as WOLSI Limited Partner, as ALFI Limited Partner and on
behalf of XXXXX as XXXXX General Partner and on behalf of XXXX X.X.
xx XXXX General Partner, jointly and severally represent and warrant
to, and agree with, each of the Underwriters that:
5
6
(i) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus,
except as otherwise set forth therein, (A) there has been no
material adverse change or development resulting in a
prospective material adverse change in the condition,
financial or otherwise, of the Transferor, the WOLSI General
Partner, ALFI L.P. or the ALFI General Partner, whether or not
arising in the ordinary course of business and (B) there have
been no transactions entered into by the Transferor, the WOLSI
General Partner, XXXX X.X. or the ALFI General Partner, other
than those in the ordinary course of their respective
businesses, that are material with respect to the Transferor,
the WOLSI General Partner, XXXX L.P. or the ALFI General
Partner.
(ii) Each of the Transferor and ALFI L.P. has been duly
formed and is validly existing as a limited partnership under
the Delaware Revised Uniform Limited Partnership Act, 6 Del.
C. Section 17-101 et seq. (the "Delaware Act"), and all
filings required at the date hereof under the Delaware Act
with respect to the due formation and valid existence of the
Transferor and ALFI L.P. as a limited partnership have been
made; each of the Transferor and ALFI L.P. has all requisite
power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus or
in the World Omni Lease Securitization L.P. Amended and
Restated Limited Partnership Agreement, dated as of July 1,
1994 (the "WOLSI Partnership Agreement"), between the WOLSI
General Partner and the WOLSI Limited Partner or the Auto
Lease Finance L.P. Amended and Restated Limited Partnership
Agreement, dated as of July 1, 1994 (the "ALFI Partnership
Agreement" and, together with the WOLSI Partnership Agreement,
the "Partnership Agreements"), between the ALFI General
Partner and the ALFI Limited Partner, as the case may be, and
to enter into and to perform its obligations under the related
Partnership Agreement, this Agreement, each Basic Document to
which the Transferor or ALFI L.P. is a party or by which it
may be bound and the Certificates; each of the Transferor and
ALFI L.P. is duly qualified or registered as a foreign
partnership to transact business and is in good standing in
each jurisdiction in which such qualification or registration
is required, whether by reason of the ownership of property or
the conduct of business, except where the failure to so
qualify would not have a material adverse effect on its
condition, financial or otherwise.
(iii) The WOLSI General Partner is the sole general
partner of the Transferor and the WOLSI Limited Partner is the
sole limited partner of the Transferor and, at the Closing
Date, each of the WOLSI General Partner and the WOLSI Limited
Partner will own its respective partnership interest in the
Transferor (each of which is a nontransferable interest to the
extent provided under the WOLSI Partnership Agreement) free
and clear of any lien, mortgage, pledge, charge, encumbrance,
adverse claim or other security interest (collectively,
"Liens") except as permitted by the Basic Documents.
(iv) The ALFI General Partner is the sole general
partner of XXXX X.X. and the ALFI Limited Partner is the sole
limited partner of ALFI L.P. and, at the Closing Date, each of
the ALFI General Partner and the ALFI Limited Partner will own
its
6
7
respective partnership interests in ALFI L.P. (each of which
is a nontransferable interest to the extent provided under the
ALFI Partnership Agreement) free and clear of any Lien except
as permitted by the Basic Documents.
(v) None of the Transferor, the WOLSI General Partner,
ALFI L.P. or the ALFI General Partner is in violation of its
organizational or charter documents, bylaws or the related
Partnership Agreement, as the case may be, or in default in
the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it may be bound,
or to which any of its properties or assets is subject; the
execution, delivery and performance by each of the Transferor,
the WOLSI General Partner, ALFI L.P. and the ALFI General
Partner, as the case may be, of this Agreement, the related
Partnership Agreement, each Basic Document to which it is a
party and the Certificates, the consummation of the
transactions contemplated herein and therein and compliance by
it with its obligations hereunder and thereunder have been
duly and validly authorized by all necessary action (corporate
or otherwise) and will not conflict with or constitute a
breach of or default under, or result in the creation or
imposition of any Lien (except as permitted by the Basic
Documents) upon any of its property or assets pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it may be a party, by which it may
be bound or to which any of its properties or assets is
subject, nor will such action result in any violation of the
provisions of its charter or organizational documents, bylaws
or the related Partnership Agreement, or any applicable law,
administrative regulation or administrative or court decree.
(vi) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or
foreign, now pending or, to the knowledge of each of the
Transferor, the WOLSI General Partner, the WOLSI Limited
Partner, ALFI L.P., the ALFI General Partner, the ALFI Limited
Partner and World Omni, threatened, against or affecting the
Transferor, the WOLSI General Partner, ALFI L.P. or the ALFI
General Partner that is required to be disclosed in the
Registration Statement and that is not disclosed or that might
result in any material adverse change in its condition,
financial or otherwise, or in its earnings, business affairs
or business prospects or that might materially and adversely
affect its properties or assets or that might materially and
adversely affect the consummation of this Agreement, either
Partnership Agreement or any Basic Document to which any of
such entities is a party or by which it may be bound; all
pending legal or governmental proceedings to which the
Transferor, the WOLSI General Partner, ALFI L.P. or the ALFI
General Partner is a party or of which any of their respective
properties or assets is the subject that are not described in
the Registration Statement, including ordinary routine
litigation incidental to their respective businesses, are,
considered in the aggregate, not material; and there are no
contracts or documents of the Transferor, the WOLSI General
Partner, the WOLSI Limited Partner, ALFI L.P., the ALFI
General Partner or the ALFI Limited Partner that are
required to be filed as exhibits to the Registration Statement
by the Act or by the Rules and Regulations that have not been
so filed.
7
8
(vii) Except such as may be required by the Act, the
Rules and Regulations or state securities laws, no
authorization, approval or consent of any court, governmental
authority or agency or any other person is necessary in
connection with (A) the issuance of the SUBI Certificate or
the Retained SUBI Certificate, (B) the issuance of the
Certificates or the offering and sale of the Investor
Certificates, (C) the execution, delivery and performance by
the Transferor or ALFI L.P. of this Agreement or any Basic
Document to which it is a party and the Certificates or (D)
the consummation by the Transferor or ALFI L.P. of the
transactions contemplated hereby or thereby, except such
authorizations, approvals or consents as will have been
obtained and are in full force and effect as of the Closing
Date.
(viii) Each of the Transferor, the WOLSI General Partner,
ALFI L.P. and the ALFI General Partner possesses all material
certificates, authorities, licenses and permits issued by the
appropriate state, federal or foreign regulatory agencies or
bodies as are necessary to conduct the business now operated
by it, and none of such entities has received notice of any
proceedings relating to the revocation or modification of any
such certificate, authority, license or permit which, singly
or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely
affect its condition, financial or otherwise.
(ix) This Agreement has been duly executed and
delivered by the WOLSI General Partner for the Transferor and
by the ALFI General Partner for XXXX X.X.
(x) As of the Closing Date, each of the Basic
Documents to which any of the Transferor, the WOLSI General
Partner, ALFI L.P. or the ALFI General Partner is a party and
the WOLSI Partnership Agreement or the ALFI Partnership
Agreement, as the case may be, has been duly executed and
delivered by each such entity, and, assuming the due
authorization, execution and delivery thereof by the other
parties thereto, will constitute the legal, valid and binding
agreement of the Transferor, the WOLSI General Partner, XXXX
X.X. or the ALFI General Partner, as the case may be,
enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws
affecting enforcement of creditors' rights generally and by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(xi) The Transferor will use the proceeds of the Class
A Certificates as described in the Prospectus under the
caption "Use of Proceeds".
(xii) As of the Closing Date, the representations and
warranties of each of the Transferor, the WOLSI General
Partner, ALFI L.P. and the ALFI General Partner in the related
Partnership Agreement and in each Basic Document to which it
is a party and in Officer's Certificates of each of the
Transferor, the WOLSI General Partner, ALFI L.P. and the
ALFI General Partner delivered on the Closing Date or on each
Transfer Date, as the case may be, will be true and correct,
and each Underwriter may rely on such representations and
warranties as if they were set forth herein in full.
8
9
(xiii) None of the Transferor, the WOLSI General Partner,
the WOLSI Limited Partner, ALFI L.P., the ALFI General Partner
or the ALFI Limited Partner conducts business or has
affiliates who conduct business in Cuba or with the government
of Cuba within the meaning of Section 517.075 of the Florida
Securities and Investors Protection Act or Regulation Section
3E-900.001 promulgated thereunder.
(c) World Omni, on its own behalf and on behalf of XXXX,
XXXXX and the Origination Trustee, each to the extent indicated
below, represents and warrants to, and agrees with, each of the
Underwriters that:
(i) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus,
except as otherwise set forth therein, (A) there has been no
material adverse change or development resulting in a
prospective material adverse change in the condition,
financial or otherwise, or in the earnings or business affairs
of the Origination Trustee (in its capacity as trustee of the
Origination Trust) or World Omni and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business and (B) there have been no
transactions entered into by the Origination Trustee (in its
capacity as trustee of the Origination Trust), World Omni or
any other subsidiary of World Omni, other than those in the
ordinary course of business, that are material with respect to
the condition, financial or otherwise, or the earnings or
business affairs of the Origination Trustee (in its capacity
as trustee of the Origination Trust) or World Omni and its
subsidiaries considered as one enterprise.
(ii) World Omni has been duly incorporated, is current
in the payment of taxes to the State of Florida and fees to
the Florida Department of State and its status is "active";
World Omni has corporate power and authority to own, lease and
operate its properties and to conduct its business as
described in the Prospectus and to enter into and to perform
its obligations under this Agreement, the Partnership
Agreements and each Basic Document to which World Omni is a
party or by which it may be bound; and World Omni is duly
qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except
where the failure so to qualify would not have a material
adverse effect on its condition, financial or otherwise, or
its earnings, business affairs or business prospects or its
ability to perform its obligations under each Basic Document
to which it is a party or by which it may be bound.
(iii) Each of WOLSI and ALFI has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Delaware, in each case with
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 each Basic Document to which it is a party or by which
it may be bound; each of WOLSI and ALFI is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction in which such
9
10
qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material
adverse effect on its condition, financial or otherwise, or
its earnings or business affairs; all of the issued and
outstanding capital stock of each of WOLSI and ALFI is owned
by World Omni, free and clear of Liens and neither WOLSI nor
ALFI has any subsidiaries.
(iv) The Origination Trust has been qualified as a
business trust under applicable Alabama law and all filings
required to be made in respect of the Origination Trust's
status as a business trust under the laws of each state in
which such filings are required have been made and are in full
force and effect on the Closing Date, except where the failure
so to file would not have a material adverse effect on its
condition, financial or otherwise, or its earnings, business
affairs or business prospects.
(v) World Omni is not in violation of its
organizational or charter documents, bylaws or either
Partnership Agreement, or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a
party or by which it may be bound, or to which any of its
property or assets is subject; the execution, delivery and
performance by World Omni of this Agreement, each Partnership
Agreement and each Basic Document to which it is a party and
the consummation of the transactions contemplated herein and
therein and compliance by it with its obligations hereunder
and thereunder have been duly and validly authorized by all
necessary action (corporate or otherwise) and will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any Lien (except as
permitted by the Basic Documents) upon any of its properties
or assets pursuant to, any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it may be bound, or to which
any of its properties or assets is subject, nor will such
action result in any violation of the provisions of its
charter or organizational documents, bylaws or each
Partnership Agreement, as the case may be, or any applicable
law, administrative regulation or administrative or court
decree.
(vi) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic
or foreign, now pending, or, to the knowledge of World Omni,
threatened against or affecting World Omni or the Origination
Trustee (in its capacity as trustee of the Origination Trust),
that is required to be disclosed in the Registration Statement
and that is not disclosed or that might result in any material
adverse change in its condition, financial or otherwise, or in
its earnings, business affairs or business prospects or that
might materially and adversely affect its properties or assets
or that might materially and adversely affect the consummation
of this Agreement, either Partnership Agreement or any Basic
Document to which it is a party or by which it may be bound;
and all pending legal or governmental proceedings to which
World Omni or the Origination Trustee (in its capacity as
trustee of the Origination Trust) is a party or of which any
of their respective properties or assets is
10
11
the subject that are not described in the Prospectus,
including ordinary routine litigation incidental to their
respective businesses, are, considered in the aggregate, not
material.
(vii) No authorization, approval or consent of any
court, governmental authority or agency or any other person is
necessary in connection with the execution, delivery and
performance by World Omni, ALFI, WOLSI or the Origination
Trustee (in its capacity as trustee of the Origination Trust)
of this Agreement, each applicable Partnership Agreement or
any Basic Document to which any of them is a party or the
consummation by any of them of the transactions contemplated
hereby or thereby, except such authorizations, approvals or
consents as will have been obtained and are in full force and
effect as of the Closing Date.
(viii) Each of World Omni and the Origination Trustee (in
its capacity as trustee of the Origination Trust) possesses
all material certificates, authorities, licenses or permits
issued by the appropriate state, federal or foreign regulatory
agencies or bodies as are necessary to conduct the business
now operated by it, and neither of such entities has received
any notice of proceedings relating to the revocation or
modification of any such certificate, authority, license or
permit that, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and
adversely affect its condition, financial or otherwise, or its
earnings, business affairs or business prospects or its
ability to perform its obligations under each Basic Document
to which it is a party or by which it may be bound.
(ix) This Agreement has been duly executed and
delivered by World Xxxx.
(x) As of the Closing Date, each Basic Document to
which World Omni is a party and the Partnership Agreements has
been duly executed and delivered by World Omni 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, enforceable in accordance
with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, reorganization
or other similar laws affecting enforcement of creditors'
rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(xi) At the time of execution and delivery of the
1997-A SUBI Supplement on the Closing Date, the
Origination Trustee on behalf of the Origination Trust will
have good and marketable title to the Initial Contracts, the
related Contract Rights, the Initial Leased Vehicles and other
rights relating to the Initial Contracts and the Initial
Leased Vehicles being allocated as SUBI Assets pursuant
thereto, free and clear of Liens (except as permitted by the
Basic Documents and other than the administrative lien in
favor of Bank of America Trust Company of Florida, N.A. or AL
Holding Corp. (the "Administrative Lien")) and will not have
assigned to any person any of its right, title or interest in
any such Contracts, Contract Rights, Leased Vehicles or other
rights, or shall have obtained the release of any such prior
assignment.
11
12
(xii) On each Transfer Date the Origination Trustee on
behalf of the Origination Trust will have good and marketable
title to the related Subsequent Contracts, the related
Contract Rights, the related Subsequent Leased Vehicles and
other rights relating to such Subsequent Contracts and
Subsequent Leased Vehicles being allocated as SUBI Assets
pursuant thereto, free and clear of Liens (other than the
Administrative Lien), and will not have assigned to any person
any of its right, title or interest in any such Subsequent
Contracts, Contract Rights, Subsequent Leased Vehicles or
other rights, or shall have obtained the release of any such
prior assignment.
(xiii) As of the Closing Date, the representations and
warranties of World Omni in the Partnership Agreements and in
each Basic Document to which it is a party and in Officer's
Certificates of World Omni delivered on the Closing Date or on
each Transfer Date, as the case may be, will be true and
correct, and each Underwriter may rely on such representations
and warranties as if they were set forth herein in full.
(xiv) At or prior to the Closing Date, World Omni, as
Servicer under the Servicing Agreement, has made the
appropriate allocation of assets within the estate of the
Origination Trust as the SUBI Assets required by the SUBI
Trust Agreement.
(xv) As of the Closing Date, the Origination Trustee
has not assigned to any person any of its right, title or
interest in any of the Contracts, Contract Rights, Leased
Vehicles or other related rights constituting the SUBI Assets,
or has obtained the release of each such prior assignment.
(d) Any Officer's Certificate signed by any officer of the
Transferor, World Omni, XXXXX, XXXX or ALFI L.P. and delivered to
the Representative or counsel for the Underwriters shall be deemed a
representation and warranty of the Transferor, World Omni, WOLSI,
ALFI or ALFI L.P., as the case may be, to each Underwriter as to the
matters covered thereby.
3. Purchase, Sale and Delivery of the Class A Certificates.
On the basis of and in reliance on the representations, warranties
and agreements herein contained, but subject to the terms and
conditions herein set forth, the Transferor agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Transferor
the aggregate principal amount of each Class of Class A Certificates
set forth in Schedule I opposite the name of such Underwriter, at a
purchase price equal to the following percentages of the aggregate
initial principal balances thereof, (i) in the case of the Class A-1
Certificates, ____________%, (ii) in the case of the Class A-2
Certificates, ___________%, (iii) in the case of the Class A-3
Certificates, ____________% and (iv) in the case of the Class A-4
Certificates, ____________%.
Each Class of Class A Certificates will initially be
represented by one or more certificates registered in the name
of Cede & Co., as the nominee of The Depository Trust Company
("DTC"). The interests of beneficial owners of each Class of Class A
Certificates will be represented by book entries on the records of
DTC and participating members thereof.
12
13
Definitive certificates evidencing the Class A Certificates will be
available only under the limited circumstances specified in the
Securitization Trust Agreement.
The Transferor will deliver the Class A Certificates to the
Representative for the respective accounts of the Underwriters,
against payment of the purchase price therefor in immediately
available funds payable to the order of the Transferor, at the
office of Xxxxxxxx & Xxxxxxxx, 000 Xxxxxxx Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 00000 (or at such other location as agreed upon among the
Transferor, ALFI L.P., World Omni and the Representative) at 10:00
A.M., Washington D.C. time, on April 30, 1997, or at such other time
not later than five full business days thereafter, as the
Transferor, ALFI L.P., World Omni and the Representative determine,
such time being herein referred to as the "Closing Date". The
certificates evidencing the Certificates will be made available for
inspection at the above offices of Xxxxxxxx & Xxxxxxxx (or at such
other location agreed upon among the Transferor, ALFI L.P., World
Omni and the Representative) at least 24 hours prior to the Closing
Date.
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), the Transferor, ALFI L.P.,
World Omni and the Underwriters have agreed that the Closing Date
will be not less than five business days following the date hereof.
The Transferor, ALFI L.P., World Omni and the Underwriters further
agree that upon receipt by an investor who has received an
electronic Prospectus or a request by such investor's representative
(whether such request is delivered to an Underwriter, the Transferor
or ALFI L.P.) during the period during which there is an obligation
to deliver a Prospectus, the Underwriters will promptly deliver or
cause to be delivered without charge, a paper copy of the
Prospectus.
4. Offering by the Underwriters. It is understood that the
Underwriters propose to offer the Class A Certificates for sale to
the public as set forth in the Prospectus.
5. Certain Agreements of the Transferor, ALFI L.P. and
World Omni. Each of the Transferor, ALFI L.P. and World Omni, as
the case may be, jointly and severally covenants and agrees with
each of the Underwriters that:
(a) If the Effective Time is prior to the execution
and delivery of this Agreement, the Transferor and ALFI L.P.
will file the Prospectus with the Commission pursuant to and
in accordance with subparagraph (1) (or, if applicable and if
consented to by the Representative, subparagraph (4)) of Rule
424(b), not later than the second business day following the
execution and delivery of this Agreement. The Transferor and
ALFI L.P. will advise the Representative promptly of any such
filing pursuant to Rule 424(b).
(b) The Transferor and XXXX X.X. will advise the
Representative promptly of any proposal to amend or
supplement the registration statement as filed or the related
prospectus or the Registration Statement or the Prospectus and
will not effect any such amendment or supplement without the
consent of the Representative. The Transferor and XXXX X.X.
will advise the Representative promptly of the effectiveness
of the Registration Statement (if the Effective Time is
subsequent to the execution and
13
14
delivery of this Agreement), of any amendment or supplement of
the Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in
respect of the Registration Statement. The Transferor and
ALFI L.P. will use their best efforts to prevent the issuance
of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the
Class A Certificates is required to be delivered under the
Act, any event occurs as a result of which the Prospectus as
then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend or
supplement the Prospectus to comply with the Act, the
Transferor and ALFI L.P. promptly will prepare and file, or
cause to be prepared and filed, with the Commission an
amendment or supplement that will correct such statement or
omission or effect such compliance. Neither the consent of
the Representative to, nor the delivery by any Underwriter of,
any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Transferor and ALFI
L.P. will cause the Trustee to make generally available to the
Class A Certificateholders an earnings statement covering a
period of at least 12 months beginning after the Effective
Date that will satisfy the provisions of Section 11(a) of the
Act. For the purpose of the preceding sentence, "Availability
Date" means the 45th day after the end of the fourth fiscal
quarter following the fiscal quarter that includes the
Effective Date, except that, if such fourth fiscal quarter is
the last quarter of the fiscal year of the Transferor and ALFI
L.P., "Availability Date" means the 90th day after the end of
such fourth fiscal quarter.
(e) The Transferor and XXXX X.X. will furnish to the
Representative copies of the registration statement as
originally filed with the Commission and each amendment
thereto (in each case at least one of which will be signed and
will include all exhibits), each related preliminary
prospectus, the Prospectus and all amendments and supplements
to such documents, in each case as soon as available and in
such quantities as the Representative may reasonably request.
(f) The Transferor and ALFI L.P. will arrange for the
qualification of the Class A Certificates for sale under the
laws of such jurisdictions in the United States as the
Representative may designate and will continue such
qualifications in effect so long as required for the
distribution of the Class A Certificates, provided that
neither the Transferor nor ALFI L.P. shall be obligated to
qualify to do business nor become subject to service of
process generally, but only to the extent required for such
qualification, in any jurisdiction in which it is not
currently so qualified.
(g) So long as any Investor Certificates are
outstanding, the Transferor, ALFI L.P. or World Omni, as the
case may be, will make good faith efforts to deliver
14
15
or cause to be delivered to the Representative, as soon as
each becomes available, copies of (i) each report relating to
the Investor Certificates delivered to Certificateholders
pursuant to Section 3.06 of the Securitization Trust
Agreement, (ii) the annual statement as to compliance and the
annual statement of a firm of independent public accountants
furnished pursuant to Sections 3.02, 3.03 or 10.02 of the
Servicing Agreement, (iii) each certificate or notice
delivered by the Servicer pursuant to Section 10.03 of the
Servicing Agreement, (iv) each periodic report required to be
filed by the Transferor or ALFI L.P. with the Commission
pursuant to the Exchange Act, or any order of the Commission
thereunder and (v) such other information concerning the
Transferor, World Omni, ALFI, WOLSI, ALFI L.P., the
Origination Trustee (in its capacity as trustee of the
Origination Trust), the Origination Trust, the Trust or the
Certificates as the Representative may reasonably request from
time to time.
(h) The Transferor, ALFI L.P. and World Omni will pay
all expenses incident to the performance of their respective
obligations under this Agreement, including without
limitation, (i) expenses incident to the word processing,
printing, reproduction and distribution of the registration
statement as originally filed with the Commission and each
amendment thereto, preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto), (ii) the
fees and disbursements of the Origination Trustee, the
Trustee, the Trust Agent, the Insurer and their respective
counsel, (iii) the fees and disbursements of counsel and the
independent public accountants of the Transferor, ALFI L.P.,
World Omni and the Insurer, (iv) the fees charged by each of
Xxxxx'x Investors Service, Inc. ("Moody's") and Standard &
Poor's Ratings Services ("Standard & Poor's" and, together
with Moody's, the "Rating Agencies") in connection with the
rating of each Class of Investor Certificates, (v) the fees of
DTC in connection with the book-entry registration of the
Class A Certificates and (vi) expenses incurred in
distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) by the
Underwriters, and will reimburse the Underwriters for any
expenses (including reasonable fees and disbursements of
counsel) incurred by the Underwriters pursuant to Section 5(f)
hereof in connection with the qualification of the Class A
Certificates for sale under the laws of such jurisdictions in
the United States as the Representative may designate. If
this Agreement is terminated by the Representative in
accordance with the provisions of Section 6 or clause (i) or
clause (ii) of Section 10 hereof, the Transferor, ALFI L.P.
and World Omni shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees
and disbursements of counsel to the Underwriters.
(i) For a period of 45 days from the date hereof, none
of the Transferor, ALFI L.P., 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 Class A Certificates.
15
16
(j) So long as any Class A Certificates are
outstanding, the Transferor, ALFI L.P. and World Omni will
cause to be delivered to the Representative a reliance letter
relating to each Opinion of Counsel delivered to the Trustee,
the Origination Trustee or either Rating Agency by counsel to
the Transferor, ALFI L.P. or World Omni relating to the
transactions contemplated by this Agreement or the Basic
Documents.
(k) To the extent, if any, that the rating provided
with respect to any Class of Class A Certificates by any
Rating Agency or the Insurer is conditional upon the
furnishing of documents or the taking of any other actions by
the Transferor, ALFI L.P. or World Omni, the Transferor, ALFI
L.P. or World Omni, as the case may be, shall furnish such
documents and take any such other actions.
(l) The Transferor and ALFI L.P. will file with the
Commission such report on Form SR as may be required pursuant
to Rule 463 under the Act.
6. Conditions of the Obligations of the Underwriters. The
obligation of the several Underwriters to purchase and pay for the
Class A Certificates will be subject to the accuracy of the
respective representations and warranties on the part of the
Transferor, ALFI L.P. and World Omni herein, to the accuracy of the
statements of the respective officers of the Transferor, ALFI L.P.
and World Omni made pursuant to the provisions hereof, to the
performance by the Transferor, ALFI L.P. 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,
ALFI L.P. 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, XXXX L.P. 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
16
17
proceedings for that purpose shall have been instituted or, to
the knowledge of the Transferor, ALFI L.P., 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 WOLSI General Partner on behalf of the
Transferor, (ii) the ALFI General Partner on behalf of XXXX X.X. and
(iii) World Omni, each dated the Closing Date, in which such officer
shall state, in the case of (A) the Transferor and ALFI L.P., that
(1) the representations and warranties of the Transferor or ALFI
L.P., as the case may be, in each Basic Document to which it is a
party and in this Agreement are true and correct, (2) to the best
knowledge of such officer after reasonable investigation, the
Transferor or ALFI L.P., as the case may be, has complied with all
agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted
or are contemplated by the Commission and (3) subsequent to the date
of this Agreement, there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Transferor or ALFI L.P., as the
case may be, except as set forth in or contemplated by the
Prospectus and (B) World Omni, that (1) the representations and
warranties of World Omni in each Basic Document to which it is a
party and in this Agreement are true and correct, (2) to the best
knowledge of such officer after reasonable investigation, World Xxxx
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder and (3) subsequent to
the date of this Agreement, there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of World Omni except as set
forth in or contemplated by the Prospectus.
(d) The Representative shall have received a certificate,
dated the Closing Date, of a Vice President or another duly
authorized officer of the Insurer, satisfactory in form and
substance to the Representative and counsel for the Underwriters,
substantially to the effect of the draft opinion previously
delivered to the Representative, to the effect that, among other
things, (i) the information provided by the Insurer for use in the
Registration Statement and the Prospectus is true and correct in all
material respects and (ii) since the date of the financial
statements of the Insurer included in the Prospectus, there has been
no change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Insurer that
would have a material adverse effect on the ability of the Insurer
to meet its obligations under the Residual Value Insurance Policy.
(e) The Representative shall have received:
(1) The favorable opinions of (A) Xxxxxxxx & Xxxxxxxx,
counsel to the Transferor, XXXX L.P. and World Omni,
(B) Hand Xxxxxxxx, L.L.C., special Alabama counsel to the
Transferor, ALFI L.P. and World Omni, (C) English, XxXxxxxxx &
X'Xxxxx, P.A., special Florida counsel to the Transferor, ALFI
L.P. and World Omni, (D) XxXxxxxxx, Xxxx & Xxxxx, special
Illinois and New York counsel to the Transferor, ALFI L.P. and
World Omni, (E) Xxxxxxxx, Xxxxxx & Finger, special Delaware
counsel to the Transferor, ALFI L.P. and World Omni, (F)
Xxxxxxx &
17
18
Xxxxxxx L.L.C., special Georgia counsel to the Transferor,
ALFI L.P. and World Omni and (G) Xxxxxxxxxx Xxxxxxxx L.L.P.,
special North Carolina counsel to the Transferor, ALFI L.P.
and World Omni, in each case dated the Closing Date and
satisfactory in form and substance to the Representative and
counsel for the Underwriters, and, in the aggregate
substantially to the effect that:
(i) World Omni has been incorporated under
the Florida General Corporation Act, is current in the
payment of fees due to the Florida Department of State
and its status is active; World Omni has corporate power
and authority to own, lease and operate its properties,
to conduct its business as presently conducted and to
enter into and perform its obligations under this
Agreement, each Partnership Agreement and each Basic
Document to which it is a party; to the best of their
knowledge, World Omni is duly qualified as a foreign
corporation to transact business and is in good standing
in Alabama, Georgia, North Carolina and South Carolina;
and, to the best of their knowledge, all of the issued
and outstanding capital stock of WOLSI and ALFI is owned
by World Omni, free and clear of Liens.
(ii) Each of WOLSI and ALFI has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware,
with corporate power and authority to own, lease and
operate its properties, to conduct its business as
described in the Registration Statement and to enter
into and perform its obligations under the related
Partnership Agreement and each Basic Document to which
it is a party; to the best of such counsel's knowledge
and information, each of WOLSI and ALFI is duly
qualified as a foreign corporation to transact business
in Florida and Alabama; and the shares of issued and
outstanding capital stock of each of WOLSI and ALFI have
been duly authorized and validly issued and are fully
paid and non-assessable.
(iii) Each of the Transferor and ALFI L.P.
is duly qualified and registered as a foreign
partnership to transact business and is in good standing
in Alabama and Florida.
(iv) This Agreement has been duly
authorized, executed and delivered by XXXXX, as XXXXX
General Partner, XXXX, as XXXX General Partner and World
Omni.
(v) The Origination Trust has been
qualified as a business trust under applicable Alabama
law and what is commonly known as a business trust under
Chapter 609 of the Florida Statutes, and all filings
required to be made in respect of the Origination
Trust's status as a business trust under the laws of the
States of Alabama and Florida have been made and are in
full force and effect on the Closing Date.
18
19
(vi) The Certificates are in due and proper
form, all conditions precedent provided for in the
Securitization Trust Agreement relating to the issuance,
authentication and delivery of the Certificates have
been complied with and the Certificates have been duly
and validly authorized and, when executed, issued,
authenticated and delivered pursuant to the
Securitization Trust Agreement, and, in the case of the
Class A Certificates, when delivered to the Underwriters
against payment of the consideration set forth in this
Agreement, will be duly and validly issued and
outstanding and entitled to the benefits of the
Securitization Trust Agreement.
(vii) Each Partnership Agreement and each
Basic Document to which the Transferor, WOLSI, ALFI,
ALFI L.P. and World Omni is a party has been duly
authorized, executed and delivered by the Transferor,
XXXXX, XXXX, ALFI L.P. and World Omni, as the case may
be, and, assuming the due authorization, execution and
delivery thereof by the other parties thereto, will
constitute the legal, valid and binding agreement of
such entity enforceable against such entity in
accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws
affecting enforcement of creditors' rights generally and
by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in
equity or at law). (In rendering such opinion as to the
enforceability of a Basic Document, counsel shall state
that in the event of a conflict of law arising under
such Basic Document, the governing law of such Basic
Document will apply without regard to any otherwise
applicable principles of conflicts of laws in the
related state).
(viii) To the best knowledge and information
of such counsel, (A) there are no legal or governmental
proceedings pending or threatened that are required to
be disclosed in the Registration Statement other than
those disclosed therein and (B) all pending legal or
governmental proceedings to which the Transferor, WOLSI,
ALFI, ALFI L.P., the Origination Trustee (in its
capacity as trustee of the Origination Trust) or World
Omni is a party or to which any of their respective
properties or assets is subject that are not described
in the Registration Statement, including ordinary
routine litigation incidental to the business of such
entity, are, considered in the aggregate with respect to
the Transferor, WOLSI, ALFI, ALFI L.P., the Origination
Trustee (in its capacity as trustee of the Origination
Trust) or World Omni as the case may be, not material.
(ix) The statements in the Prospectus under
the captions "Summary", "Risk Factors", "Description of
the Certificates", "Security for the Certificates",
"The Residual Value Insurance Policy" and "Additional
Document Provisions", insofar as such statements
purport to summarize certain terms or provisions of the
SUBI Interest, the Retained SUBI Interest, the
Certificates, the Basic Documents, the Residual Value
Insurance Policy and the Contingent and Excess
Liability Insurance Policies, provide a fair summary of
such
19
20
provisions, and the statements in the Prospectus under
"Risk Factors -- SUBI Assets May Be Subject to Liens of
Origination Trust Creditors", "-- Consumer Protection
Laws", "-- ERISA Liabilities", "-- Vicarious Tort
Liability" and "-- Insolvency of World Omni; Substantive
Consolidation with World Omni", "Additional Document
Provisions", "Certain Legal Aspects of the Origination
Trust and the SUBI", "Certain Legal Aspects of the
Contracts and the Leased Vehicles" and "ERISA
Considerations", to the extent that they constitute
matters of law, summaries of legal matters, documents or
proceedings or legal conclusions relating to U.S.
federal law or the laws of the States of Florida,
Georgia or North Carolina have been prepared or reviewed
by such counsel and are correct in all material
respects.
(x) To the best knowledge and information
of such counsel, (A) there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in
the Registration Statement or to be filed as exhibits
thereto other than those described or referred to
therein or filed as exhibits thereto, (B) the
descriptions thereof or references thereto are correct
and (C) no default exists in the due performance or
observance of any material obligation, agreement,
covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or
other instrument so described, referred to or filed.
(xi) No authorization, approval, consent or
order of any court or governmental authority or agency
is required in connection with the issuance of the SUBI
Certificate, the Retained SUBI Certificate or the
Certificates, the offering of the Investor Certificates
or the sale of the Class A Certificates to the
Underwriters, except those authorizations, approvals,
consents and orders which have previously been obtained
and are in full force and effect as of the Closing Date;
provided, that such counsel need express no opinion as
to state securities laws.
(xii) None of (A) the execution, delivery
and performance by the Transferor, ALFI L.P. or World
Omni of this Agreement or by the Transferor, WOLSI,
ALFI, ALFI L.P. or World Omni of any applicable
Partnership Agreement or any Basic Document to which
such entity is a party, (B) the consummation of the
transactions contemplated herein or therein by any such
entity or (C) the fulfillment of the terms hereof or
thereof by any such entity will conflict with, result in
a breach of or constitute a default under, or with the
giving of notice or the passage of time or both, would
constitute a default under or result in the creation or
imposition of any Lien (except as permitted by the Basic
Documents) upon any property or assets of such entity
pursuant to the terms of (i) the organizational, charter
or partnership documents or bylaws of such entity, (ii)
to the best knowledge and information of such counsel
and except as otherwise provided in the Basic Documents,
any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which such entity is a
party or by which it may be bound, or to which any of
the
20
21
properties or assets of such entity is subject or (iii)
any applicable law, statute or regulation or, to the
best knowledge and information of such counsel, any
judgment, order or decree applicable to such entity of
any court, regulatory body or other governmental
instrumentality having jurisdiction over such entity
except, in the case of clauses (ii) and (iii) above, for
defaults, breaches or violations that do not, in the
aggregate, have a material adverse effect on such
entity.
(xiii) None of the Transferor, XXXXX, XXXX,
ALFI L.P., World Omni, the Origination Trust or the
Trust is an "investment company" or is "controlled" by
an "investment company" as such terms are defined in the
Investment Company Act.
(xiv) The Registration Statement has become
effective under the Act, and, to the best knowledge and
information of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act,
and the Registration Statement and the Prospectus, and
each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form
in all material respects with the requirements of the
Act and the Rules and Regulations. Such counsel has no
reason to believe that either the Registration
Statement, at the Effective Time, or any such amendment
or supplement, as of its effective date, contained any
untrue statement of a material fact or omitted to state
any material fact required to be stated therein or
necessary to make the statements therein not misleading,
or that the Prospectus, at the date of this Agreement
(or any such amendment or supplement, as of its
respective date) or at the Closing Date included or
includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; it being understood that such counsel need
express no opinion as to the financial statements or
other financial or statistical data contained in the
Registration Statement or the Prospectus.
(xv) Neither the SUBI Trust Agreement nor
the Securitization Trust Agreement is required to be
qualified under the Trust Indenture Act of 1939, as
amended.
(xvi) The Origination Trustee will own or
have a first priority perfected security interest in the
SUBI Collection Account, the Residual Value Surplus
Account and the proceeds thereof (including Permitted
Investments) for so long as they are held in such
accounts, and the Trustee will own or have a first
priority perfected security interest in the Distribution
Account and the Reserve Fund and the proceeds thereof
(including Permitted Investments) for so long as they
are held in such accounts.
21
22
(xvii) The transfer of the SUBI Certificate
by ALFI L.P. to the Transferor constitutes a sale of the
SUBI Certificate and the SUBI Assets evidenced thereby.
The transfer of the SUBI Certificate by the Transferor
to the Trust (A) constitutes a sale of the SUBI
Certificate and the SUBI Assets evidenced thereby or (B)
if such transfer does not constitute a sale, then the
Securitization Trust Agreement and the delivery to and
possession by the Securitization Trustee of the SUBI
Certificate creates a valid first priority perfected
security interest, for the benefit of the Securitization
Trustee on behalf of the Certificateholders, in ALFI
L.P.'s and the Transferor's right, title and interest in
the SUBI Certificate.
(xviii) Each of the Transferor, WOLSI, ALFI,
ALFI L.P., World Omni and the Origination Trustee (in
its capacity as trustee of the Origination Trust)
possesses such certificates, authorities, licenses,
permits and other governmental authorizations issued by
Alabama and Florida, in the case of the Transferor,
WOLSI, ALFI, ALFI L.P. and World Omni, and by the States
of Alabama, Florida, Georgia and North Carolina, in the
case of the Origination Trustee (on behalf of the
Origination Trust), materially necessary to conduct the
business now operated by it, and none of such entities
has received any notice of proceedings relating to the
revocation or modification of any such certificate,
authority, license or permit that, singly or in the
aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect
the condition, financial or otherwise, or the earnings,
business affairs or business prospects of such entity.
(xix) The choice of law provisions contained in
each dealer agreement between World Omni and a dealer
that originates lease contracts comprising Origination
Trust Assets are valid and enforceable under the laws of
Alabama, Georgia and North Carolina.
(xx) The assignment provisions contained in
each dealer agreement between World Omni and a dealer
that originates lease contracts comprising Origination
Trust Assets are valid and enforceable under the laws of
the State in which such dealer originates such lease
contracts.
(xxi) In the event that the transaction
contemplated by the Basic Documents is deemed to be a
secured loan, assuming the chief executive office of the
Origination Trustee is located in the State of Illinois
and the timely filing of an appropriate UCC Financing
Statement with the Secretary of the State of Illinois,
the grant by the Origination Trustee to the
Securitization Trustee of a security interest in the
1997-A Leases pursuant to the Backup Security Agreement
will create a valid, first priority perfected security
interest in the 1997-A Leases.
(2) The favorable opinion of Hand Xxxxxxxx, L.L.C.,
special Alabama counsel to the Transferor, ALFI L.P. and World
Omni, dated the Closing Date and
22
23
satisfactory in form and substance to the Representative and
counsel to the Underwriters, and substantially to the effect
that:
(i) The SUBI Certificate and the Retained
SUBI Certificate have been duly and validly authorized
and, when executed, issued, authenticated and delivered
pursuant to the SUBI Trust Agreement, will be duly and
validly issued and outstanding and entitled to the
benefits of the SUBI Trust Agreement.
(ii) The lease contracts originated in
Alabama are "true leases" for purposes of Alabama law.
(iii) In the event that the transaction
contemplated by the Basic Documents is deemed to be a
secured loan, assuming the chief executive office of the
Origination Trustee is located in the State of Alabama
and the timely filing of an appropriate UCC Financing
Statement with the Secretary of the State of Alabama,
the grant by the Origination Trustee to the
Securitization Trustee of a security interest in the
1997-A Leases pursuant to the Backup Security Agreement
will create a valid, first priority perfected security
interest in the 1997-A Leases.
(3) The favorable opinion of Xxxxxxxx, Xxxxxx &
Finger, special Delaware counsel to the Transferor, ALFI L.P.
and World Omni, dated the Closing Date and satisfactory in
form and substance to the Representative and counsel to the
Underwriters, to the effect that:
(i) Each of the Transferor and ALFI L.P.
has been duly formed and is validly existing in good
standing as a limited partnership under the Delaware Act
with all requisite power under the Delaware Act and the
related Partnership Agreement to enter into and perform
its obligations under this Agreement, the related
Partnership Agreement and each Basic Document to which
it is a party.
(ii) The execution and delivery of and
performance under the related Partnership Agreement and
each Basic Document to which the Transferor or ALFI L.P.
is a party (A) have been duly authorized by all
requisite partnership action on the part of the
Transferor or ALFI L.P., (B) are permitted under the
Delaware Act and the related Partnership Agreement and
(C) will not violate any Delaware statute or regulation;
provided that such counsel need express no opinion
regarding state securities laws.
(iii) No consent, approval, authorization or
order of, or registration or filing or declaration with,
any Delaware court or governmental agency or body is
required in connection with either the Transferor's or
ALFI L.P.'s execution or delivery of or performance
under the related Partnership Agreement and each Basic
Document to which it is a party.
23
24
(4) The favorable opinion of English, XxXxxxxxx &
X'Xxxxx, P.A., special Florida counsel to the Transferor, ALFI
L.P. and World Omni, dated the Closing Date and satisfactory
in form and substance to the Representative and counsel for
the Underwriters, and substantially to the effect that:
(i) The Class A Certificates will constitute
"indebtedness" for purposes of Florida income tax law,
and the Class B Certificates should constitute
"indebtedness" for purposes of Florida income tax law.
(ii) The loan rule promulgated under the Florida
Corporate Income Tax Code and included in the Florida
Administrative Code relating to interest on loans by
"financial organizations" (as such term is defined
therein), should not apply to an investment in the
Investor Certificates by such a financial organization.
(iii) The statements in the Prospectus under
"Material Income Tax Considerations -- Florida Income
Taxation", to the extent that they constitute matters of
law, summaries of legal matters, documents or
proceedings or legal conclusions, have been reviewed by
such counsel and are correct in all material respects.
(iv) The lease contracts originated in Florida
are "true leases" for purposes of Florida law.
(v) Assuming that all other elements necessary
to render a lease contract legal, valid, binding and
enforceable were present in connection with the
execution, delivery and performance of each lease
contract, and assuming that no action was taken in
connection with the execution, delivery and performance
of each lease contract that would give rise to a defense
to the legality, validity, binding effect and
enforceability of such lease contract, nothing in the
forms of such lease contracts, as attached as an Exhibit
to the Servicing Agreement, would render such lease
contract other than legal, valid, binding and
enforceable; assuming the validity, binding effect and
enforceability in all other respects, such forms of
lease contracts are in sufficient compliance with
applicable federal and Florida state consumer protection
laws so as not to be rendered void or voidable at the
election of the related lessee.
(5) The favorable opinion of Xxxxx & Wood LLP, special
federal income tax counsel to the Transferor and ALFI L.P.,
dated the Closing Date and satisfactory in form and substance
to the Representative and counsel to the Underwriters, to the
effect that (i) the Class A Certificates will constitute
"indebtedness" for federal income tax purposes and the Class B
Certificates should constitute "indebtedness" for federal
income tax purposes and (ii) the statements in the Prospectus
under the captions "Summary -- Tax Status" and "Material
Income Tax Considerations -- Federal Taxation", to the extent
that they constitute matters of law, summaries of legal
matters
24
25
or legal conclusions, have been reviewed by such counsel and
are correct in all material respects.
(6) Reliance letters relating to each legal opinion
relating to the transactions contemplated by this Agreement
and the Basic Documents rendered by counsel to the Transferor,
ALFI L.P. or World Omni to the Trustee, the Origination
Trustee or either Rating Agency.
(7) The favorable opinion of Xxxxxx & Xxxxxxx, counsel
to the Trustee, dated the Closing Date and satisfactory in
form and substance to the Representative and counsel to the
Underwriters, to the effect that:
(i) First Bank has been duly incorporated
and is validly existing as an national banking
association, in good standing under the laws of United
States with full power and authority (corporate and
other) to own its properties and conduct its business,
as presently conducted by it, and to enter into and
perform its obligations as Trustee and Trust Agent under
each Basic Document to which First Bank is a party.
(ii) Each Basic Document to which First
Bank is a party has been duly authorized, executed and
delivered by First Bank and, assuming the due
authorization, execution and delivery thereof by the
other parties thereto, will constitute a legal, valid
and binding obligation of First Bank enforceable in
accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws
affecting enforcement of creditors' rights generally and
by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in
equity or at law).
(iii) The Certificates have been duly
executed, authenticated and delivered by the Trustee.
(iv) Neither the execution nor delivery by
First Bank of each Basic Document to which it is a party
nor the consummation of any of the transactions by First
Bank contemplated thereby require the consent or
approval of, the giving of notice to, the registration
with or the taking of any other action with respect to,
any governmental authority or agency under any existing
federal or state law governing the banking or trust
powers of First Bank.
(v) The execution and delivery of each
Basic Document to which First Bank is a party and the
performance by First Bank of its terms do not conflict
with or result in a violation of (A) any federal or
state law or regulation governing the banking or trust
powers of First Bank, (B) the Articles of Association or
By-Laws of First Bank or (C) to the best knowledge
of such counsel, any indenture, lease or material
agreement to which First Bank is a party or to which its
assets are subject.
25
26
(vi) All of the issued and outstanding
capital stock of the Origination Trustee is owned by
First Bank, free and clear of any Liens.
(8) The favorable opinion of Xxxxxx & Xxxxxxx, counsel
to the Origination Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and
counsel for the Underwriters, to the effect that:
(i) The Origination Trustee has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the State of Alabama
with corporate power and authority to own, lease and
operate its properties, to conduct its business as
described in the Registration Statement and to enter
into and perform its obligations under each Basic
Document to which it is a party; to the best of their
knowledge and information, the Origination Trustee is
duly qualified as a foreign corporation to transact
business and is in good standing in Georgia, Florida,
North Carolina, South Carolina, California, New Jersey,
New York and Pennsylvania; and the shares of issued and
outstanding capital stock of the Origination Trustee
have been duly authorized and validly issued, are fully
paid and non- assessable and are owned by First Bank.
(ii) Each Basic Document to which the
Origination Trustee is a party has been duly authorized,
executed and delivered by the Origination Trustee and,
assuming the due authorization, execution and delivery
thereof by the other parties thereto, will constitute
legal, valid and binding obligations of the Origination
Trustee enforceable in accordance with their respective
terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting
enforcement of creditors' rights generally and by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity
or at law).
(iii) The SUBI Certificate and the Retained
SUBI Certificate have been duly executed, authenticated
and delivered by the Origination Trustee.
(iv) Neither the execution nor delivery by
the Origination Trustee of each Basic Document to which
it is a party nor the consummation of any of the
transactions by the Origination Trustee contemplated
thereby require the consent or approval of, the giving
of notice to, the registration with or the taking of any
other action with respect to, any person or entity,
including any governmental authority or agency under any
existing federal or state law.
(v) The execution and delivery of each
Basic Document to which the Organization Trustee is a
party and the performance by the Origination Trustee of
their respective terms do not conflict with or result in
a violation of its articles of incorporation or bylaws
of the Origination Trustee or, to the best of such
counsel's knowledge, any contract, indenture, mortgage,
26
27
loan agreement, note, lease or other instrument to which
it is a party, by which it may be bound or to which any
of its property or assets is subject.
(9) The favorable opinion of Xxxxx X. Xxxxxxx, Esq.,
Assistant Vice President and Counsel of the Insurer, dated the
Closing Date and satisfactory in form and substance to the
Representative and counsel to the Underwriters, substantially
to the effect of the draft opinion previously delivered to the
Representative, to the effect that, among other things, (i)
the Insurer has been duly incorporated and is in good standing
in the jurisdiction of its incorporation, (ii) the Insurer has
the corporate power and authority to issue, execute, deliver
and perform its obligations under the Residual Value Insurance
Policy, (iii) no consent, approval, authorization or order of,
or registration or filing or declaration with, any entity is
required in connection with the issuance of the Residual Value
Insurance Policy, (iv) the Residual Value Insurance Policy is
enforceable in accordance with its terms, (v) the Residual
Value Insurance Policy is not required to be registered under
the Act and (vi) although the information in the Prospectus
under "The Residual Value Insurer" is limited and does not
purport to provide the scope of disclosure required to be
included in a prospectus with respect to a registrant under
the Act in connection with the public offering of securities
of such registrant, such counsel has no reason to believe that
the information in the Prospectus under "The Residual Value
Insurance Policy" or, within such limited scope of disclosure,
under "The Residual Value Insurer", contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(10) The favorable opinion of Xxxxx & Wood LLP, counsel
for the Underwriters, dated the Closing Date, with respect to
the existence of the Transferor, ALFI L.P. and World Omni, the
validity of the Certificates and such other related matters as
the Representative shall request. In rendering such opinion,
Brown & Wood LLP may rely on the opinions of (i) Hand
Xxxxxxxx, L.L.C., as to all matters of Alabama law, (ii)
Xxxxxxxx, Xxxxxx & Xxxxxx, as to all matters of Delaware law,
(iii) English, XxXxxxxxx & X'Xxxxx, P.A., as to all matters of
Florida law and (iv) XxXxxxxxx, Xxxx & Xxxxx and/or Xxxxxx &
Xxxxxxx, as to all matters of Illinois law, which opinions
shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(f) The Insurer shall have issued the Residual Value
Insurance Policy.
(g) Each Class of Class A Certificates shall be rated in the
highest rating category by each of Xxxxx'x and Standard & Poor's and
the Class B Certificates shall be rated at least Baa2 by Xxxxx'x and
BBB by Standard & Poor's.
(h) 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 Certificates and sale of the
Class A Certificates 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
27
28
conditions, herein contained; and all proceedings taken by the
parties to the Basic Documents in connection with the issuance of
the Certificates and sale of the Class A Certificates as herein
contemplated shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may
be terminated by the Representative by notice to the Transferor,
ALFI L.P. and World Omni at any time at or prior to the Closing
Date, and such termination shall be without liability of any party
to any other party except as provided in Section 5(h) hereof.
7. Indemnification and Contribution.
(a) Each of the Transferor and World Xxxx agrees, jointly
and severally, to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning
of Section 15 of the Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
thereto), including the information deemed to be part of the
Registration Statement pursuant to Rule 430A(b) of the Rules
and Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is
effected with the written consent of the Transferor and World
Omni; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 7(c) hereof, the fees
and disbursements of counsel chosen by the Representative),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under clause (i)
or (ii) above;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged
28
29
untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Transferor by any
Underwriter through the Representative expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Transferor and World Omni, each of their respective
directors, each of their respective officers who signed the
Registration Statement and each person, if any, who controls each of
the Transferor and World Omni, respectively, within the meaning of
Section 15 of the Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), in reliance upon and in conformity
with written information furnished to the Transferor by such
Underwriter through the Representative expressly for use in the
Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it with respect to which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have other than on
account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action. In no
event shall an indemnifying party be liable for the fees and
expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances.
8. Contribution. If the indemnification provided for in
Section 7 hereof is unavailable or insufficient to hold harmless an
indemnified party under subsection (a) or (b) thereof, then each
indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of the loss, liability, claim,
damage or expense referred to in subsection (a) or (b) of Section 7
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Transferor and World Omni on the one hand
and the Underwriters on the other from the offering of the Class A
Certificates 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
29
30
to information supplied by the Transferor, World Omni or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a
result of the loss, liability, claim, damage or expense referred to
in the first sentence of this Section shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or
claim which is the subject of this Section. Notwithstanding the
provisions of this Section, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total
price at which the Class A Certificates underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. Notwithstanding the other
provisions of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act shall have
the same rights to contribution as such Underwriter and each
director of the Transferor and World Omni, each officer of the
Transferor who signed the Registration Statement and each person, if
any, who controls either the Transferor or World Omni within the
meaning of Section 15 of the Act shall have the same rights to
contribution as the Transferor or World Omni, as the case may be.
The Underwriters' respective obligations to contribute pursuant to
this Section are several in proportion to the principal amount of
the Class A Certificates 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, ALFI L.P. 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, ALFI L.P., World Omni or any of their respective
representatives, officers or directors or any controlling person,
and will survive delivery of and payment for the Class A
Certificates. If for any reason the purchase of the Class A
Certificates by the Underwriters is not consummated, the Transferor,
ALFI L.P. and World Omni shall remain responsible for the expenses
to be paid or reimbursed by them pursuant to Section 5(h) hereof and
the respective obligations of the Transferor, World Omni, ALFI L.P.
and the Underwriters pursuant to Section 7 hereof shall remain in
effect. If the purchase of the Class A Certificates by the
Underwriters is not consummated for any reason other than solely
because of the occurrence of any event specified in clause (iii),
(iv) or (v) of Section 10 hereof, the Transferor, ALFI L.P. and
World Omni will reimburse the Underwriters for all out-of-pocket
expenses (included the reasonable fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the
Class A Certificates.
10. Termination of Agreement. The Representative may
terminate this Agreement, by notice to the Transferor, ALFI
L.P. 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
30
31
prospects of the Transferor, World Omni, ALFI L.P., the Origination
Trust or the Insurer, whether or not arising in the ordinary course
of business; (ii) if there has occurred any downgrading in the
rating of the debt securities of the Transferor, ALFI L.P., World
Omni or the Insurer by any "nationally recognized statistical rating
organization" (as such term is defined for purposes of Rule 436(g)
under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Transferor, ALFI L.P., World Omni or the Insurer
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating); (iii) if there has occurred any material adverse change in
the financial markets in the United States or any outbreak of
hostilities or other calamity or crisis, the effect of which is such
as to make it, in the judgment of the Representative, impracticable
to market any Class of Investor Certificates or to enforce contracts
for the sale of any Class of Investor Certificates; (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, Florida,
Illinois or Alabama authorities.
11. Default By One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Date to purchase
the Class A Certificates 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 Class A Certificates, the
non-defaulting Underwriters shall be obligated to purchase the
full amount thereof in such proportions that their respective
underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the total aggregate principal amount
of the Class A Certificates, 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
ALFI L.P. and the Transferor shall have the right to postpone the
Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangement.
31
32
12. Notices. All communications hereunder will be in
writing and, if sent to (i) the Underwriters, shall be directed to
the Representative and will be mailed, delivered or sent by
facsimile and confirmed to it at Xxxxxxx Xxxxx & Co., North Tower,
World Financial Center, New York, New York 10281-1201, Attention:
Xxxxxxxx X. Xxxx, Managing Director (facsimile number (212)
449-9015); (ii) the Transferor, will be mailed, delivered or sent by
facsimile and confirmed to it at World Omni Lease Securitization
L.P., c/o World Omni Lease Securitization, Inc., 120 N.W. 12th
Avenue, Deerfield Beach, Florida 33442, Attention: X. Xxxxxx Xxxxx,
Vice President and Corporate Treasurer (facsimile number (954)
429-2685); (iii) ALFI L.P., will be mailed, delivered or sent by
facsimile and confirmed to it at Auto Lease Finance L.P., c/o Auto
Lease Finance, Inc., 000 X.X. 12th Avenue, Deerfield Beach, Florida
33442, Attention: X. Xxxxxx Xxxxx, Vice President and Corporate
Treasurer (facsimile number (000) 000-0000); or (iv) World Omni,
will be mailed, delivered or sent by facsimile and confirmed to it
at World Omni Financial Corp., 000 X.X. 12th Avenue, Deerfield
Beach, Florida 33442, Attention: X. Xxxxxx Xxxxx, Vice President
and Corporate Treasurer (facsimile number (000) 000-0000).
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Sections 7 and 8 hereof, and no other person will
have any right or obligation hereunder.
14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one
and the same Agreement.
15. Applicable Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York
without regard to any otherwise applicable principles of conflicts
of laws.
32
33
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, ALFI L.P. and World Omni and the
Underwriters in accordance with its terms.
Very truly yours,
WORLD OMNI LEASE SECURITIZATION L.P.
By: WORLD OMNI LEASE SECURITIZATION,
INC., as General Partner
By:
----------------------------------
Name:
Title:
AUTO LEASE FINANCE L.P.
By: AUTO LEASE FINANCE INC.,
as General Partner
By:
----------------------------------
Name:
Title:
WORLD OMNI FINANCIAL CORP.
By:
----------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:
----------------------------------
Name:
Title:
For itself and as Representative of the other
Underwriters named in Schedule I hereto.
34
SCHEDULE I
Principal Principal Principal Principal
Amount of Amount of Amount of Amount
Class A-1 Class A-2 Class A-3 of Class A-4
Name of Underwriter Certificates Certificates Certificates Certificates
------------------- -------------- ------------- ------------- ---------------
Xxxxxxx Xxxxx, Xxxxxx,
Xxxxxx & Xxxxx
Incorporated . . . . . $ $ $ $
CS First Boston
Corporation . . . . . .
BA Securities, Inc. . .
------------ ------------ ------------ ------------
Total . . . . . . . $250,000,000 $250,000,000 $290,000,000 $277,297,857
============ ============ ============ ============
SI-1
