EXECUTION COPY
WORLD OMNI AUTO RECEIVABLES TRUST 2003-A
$189,000,000
1.30% Asset Backed Notes, Class A-1
$156,000,000
1.46% Asset Backed Notes, Class A-2
$257,000,000
1.98% Asset Backed Notes, Class A-3
$139,300,000
2.58% Asset Backed Notes, Class A-4
$43,725,000
2.35% Asset Backed Notes, Class B
UNDERWRITING AGREEMENT
February 24, 2003
Credit Suisse First Boston LLC
as Representative of the
Several Underwriters
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory. World Omni Auto Receivables LLC, a Delaware limited
liability company (the "Seller") and World Omni Financial Corp., a Florida
corporation ("World Omni"), hereby confirm their respective agreements with
Credit Suisse First Boston LLC and each of the other underwriters named in
Schedule I hereto (collectively, the "Underwriters"), for whom you are acting as
representative (the "Representative"), with respect to the sale by the Seller to
the Underwriters of $189,000,000 aggregate principal amount of 1.30% Asset
Backed Notes, Class A-1 (the "Class A-1 Notes"), $156,000,000 aggregate
principal amount of 1.46% Asset Backed Notes, Class A-2 (the "Class A-2 Notes"),
$257,000,000 aggregate principal amount of 1.98% Asset Backed Notes, Class A-3
(the "Class A-3 Notes") and $139,300,000 aggregate principal amount of 2.58%
Asset Backed Notes, Class A-4 (the "Class A-4 Notes" and, together with the
Class A-1 Notes, Class A-2 Notes and Class A-3 Notes, the "Class A Notes") and
$43,725,000 aggregate principal amount of 2.35% Asset Backed Notes, Class B (the
"Class B Notes" and, together with the Class A Notes, the "Notes") of the World
Omni Auto Receivables Trust 2003-A (the "Trust") under the terms and conditions
herein contained.
The Notes will be issued pursuant to an indenture (the "Indenture"), to be
dated as of the Closing Date (as defined below), between the Trust and The Bank
of New York, as indenture
trustee (in such capacity, the "Indenture Trustee"). The Seller will retain the
asset backed certificates (the "Certificates") issued pursuant to an amended and
restated trust agreement, to be dated as of the Closing Date (the "Trust
Agreement"), between the Seller and U.S. Bank Trust National Association, as
owner trustee (in such capacity, the "Owner Trustee"). The Certificates will be
subordinated to the Notes to the extent described in the Basic Documents (as
defined below).
The assets of the Trust will include, among other things, a pool of fixed
rate retail installment sale contracts (the "Receivables") secured by new and
used automobiles and light-duty trucks financed thereby (the "Financed
Vehicles"), and certain monies received thereunder after February 28, 2003 (the
"Cutoff Date"), monies on deposit in the Reserve Account and in certain other
accounts and the other property and the proceeds thereof to be conveyed to the
Trust pursuant to the Sale and Servicing Agreement to be dated as of the Closing
Date (the "Sale and Servicing Agreement") among the Trust, the Seller and World
Omni, as Servicer (the "Servicer"). Pursuant to the Sale and Servicing
Agreement, the Seller will sell the Receivables to the Trust and the Servicer
will service the Receivables on behalf of the Trust. In addition, pursuant to
the Sale and Servicing Agreement, the Servicer will agree to perform certain
administrative tasks on behalf of the Trust imposed on the Trust under the
Indenture. Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Sale and Servicing Agreement.
The Receivables were originated or acquired by World Omni. World Omni will
sell the Receivables to the Seller pursuant to the terms of the Receivables
Purchase Agreement (the "Receivables Purchase Agreement") to be dated as of the
Closing Date between the Seller and World Omni.
As used herein, the term "Basic Documents" refers to the Sale and Servicing
Agreement, Indenture, Trust Agreement, Receivables Purchase Agreement,
Administration Agreement (the "Administration Agreement") to be dated as of the
Closing Date among World Omni, the Indenture Trustee, the Seller and the Trust
and Note Depository Agreement.
2. Representations and Warranties of the Seller and World Omni.
(a) Each of the Seller and World Omni, jointly and severally, represents
and warrants to, and agrees with, each of the Underwriters that:
(i) The registration statements on Form S-3 (Nos. 333-69732 and
333-100621), including a prospectus, relating to the Notes have been filed
with the Securities and Exchange Commission (the "Commission") and have
become effective. Such registration statements, as amended as of the date
of this Underwriting Agreement (the "Agreement") are hereinafter referred
to as the "Registration Statement," and the prospectus included in such
Registration Statement, as supplemented to reflect the terms of the Notes
as first filed with the Commission after the date of this Agreement
pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the
Securities Act of 1933, as amended (the "Act"), including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus;" a "preliminary prospectus" means any form of prospectus,
including any prospectus supplement, relating to the Notes used prior to
the date of this Agreement that is subject to completion; the "Base
Prospectus" means the
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base prospectus dated the date hereof included in the Prospectus; the
"Prospectus Supplement" means the prospectus supplement dated the date
hereof included in the Prospectus.
(ii) (A) On the effective date of the Registration Statement, the
Registration Statement complied, and on the date of this Agreement the
Registration Statement will comply, 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, the Prospectus will comply 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. The immediately preceding sentence does not
apply to statements in or omissions from the Registration Statement or
Prospectus based solely upon written information furnished to the Seller or
World Omni by any Underwriter through the Representative specifically for
use therein (the "Underwriters' Information"); provided that, the only such
information furnished to the Seller or World Omni consists of the
information set forth in the first sentence under the heading "Risk
Factors--You may have difficulty selling your notes and/or obtaining your
desired price due to the absence of a secondary market" and the second
paragraph, the third paragraph, the fifth paragraph, the third and fourth
sentences of the sixth paragraph, the seventh paragraph and the first
sentence of the ninth paragraph under the heading "Underwriting." The
Prospectus delivered to you for use in connection with the offering of the
Notes will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to the Electronic Data Gathering,
Analysis and Retrieval ("XXXXX") system, except to the extent permitted by
Regulation S-T.
(iii) The Basic Documents conform in all material respects to the
descriptions thereof and the statements in relation thereto contained in
the Prospectus.
(iv) The Notes and, to the extent described therein, the Certificates
conform in all material respects to the description thereof and the
statements in relation thereto contained in the Prospectus; the Notes and
the Certificates have been duly and validly authorized and, when executed,
issued, authenticated and delivered in accordance with the Indenture and
the Trust Agreement, respectively, and, in the case of the Notes, when
delivered to the Underwriters against payment of the consideration
specified herein, will be duly and validly issued and outstanding and
entitled to the benefits of the Indenture.
(v) None of the Seller, World Omni 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").
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(vi) Each of the Receivables and Financed Vehicles as of the Cutoff
Date will meet the eligibility criteria for selection described in the
Prospectus.
(vii) Each Receivable is in substantially one of the forms attached
as an Exhibit to the Trust Agreement and constitutes the legal, valid,
binding and enforceable agreement of the parties thereto, 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); and each Receivable complies or will comply on the Closing Date in
all material respects as to content and form with all applicable state and
federal laws, including without limitation, consumer protection laws.
(viii) The Notes are "asset backed securities" within the meaning of,
and satisfy the requirements for use of, Form S-3 under the Act.
(ix) The documents incorporated by reference in the Registration
Statement and Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations of the Commission
thereunder.
(x) The Seller has satisfied all of its obligations under the
Exchange Act and is eligible for use of Form S-3 under the Act.
(xi) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise set
forth therein, (A) there has been no material adverse change or development
resulting in a prospective material adverse change in the condition,
financial or otherwise, or business prospects, of the Seller, whether or
not arising in the ordinary course of business and (B) there have been no
transactions entered into by the Seller, other than those in the ordinary
course of its business, that are material with respect to the Seller.
(xii) The Seller has caused to be filed with the Commission on
February 24, 2003 the Current Report on Form 8-K with respect to the Term
Sheet dated February 24, 2003 relating to the Notes ("Term Sheet").
(xiii) The Seller has been duly formed and is validly existing as a
limited liability company under Delaware law, and all filings required at
the date hereof under Delaware law with respect to the due formation and
valid existence of the Seller as a limited liability company have been
made; the Seller 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 its organizational documents, and to enter into and to
perform its obligations under this Agreement and each Basic Document to
which the Seller is a party or by which it may be bound; the Seller is duly
qualified or registered as a foreign entity 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
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material adverse effect on its condition, financial or otherwise, or
business prospects; all of the issued and outstanding membership interests
of the Seller are owned by World Omni, free and clear of liens; and the
Seller does not have any subsidiaries. The Seller is current in the payment
of any taxes required to be paid by it.
(xiv) The Seller is not in violation of its organizational or charter
documents, or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in 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; the execution, delivery and
performance by the Seller of this Agreement and each Basic Document to
which it is a party, 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 material 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 any applicable law,
administrative regulation or administrative or court decree.
(xv) 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 the Seller or World Omni, threatened, against or affecting the
Seller, 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 the transactions contemplated by this Agreement or any
Basic Document to which the Seller is a party or by which it may be bound;
all pending legal or governmental proceedings to which the Seller is a
party or of which any of its properties or assets is the subject that are
not described in the Registration Statement, including ordinary routine
litigation incidental to its businesses, are, when considered in the
aggregate, not material; and there are no contracts or documents of the
Seller 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.
(xvi) Except such as may be required by the Act, the Rules and
Regulations or state securities laws, no authorization, approval or consent
of any court, governmental authority or agency or any other Person is
necessary in connection with (A) the issuance of the Notes and the
Certificates or the offering and sale of the Notes, (B) the execution,
delivery and performance by the Seller of this Agreement and any Basic
Document to which it is a party or (C) the consummation by the Seller of
the transactions contemplated hereby or thereby, except such
authorizations, approvals or consents as will have been obtained on or
prior to, and will be in full force and effect as of, the Closing Date.
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(xvii) The Seller possesses all 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 Seller has not 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.
(xviii) This Agreement has been duly authorized, executed and
delivered by the Seller.
(xix) As of the Closing Date, each of the Basic Documents to which
the Seller is a party has been duly authorized, executed and delivered by
the Seller, and, assuming the due authorization, execution and delivery
thereof by the other parties thereto, will constitute the legal, valid and
binding agreement of the Seller, 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).
(xx) The Seller will use the proceeds of the Notes as described in
the Prospectus under the caption "Use of Proceeds".
(xxi) As of the respective dates set forth therein, the
representations and warranties of the Seller in each Basic Document to
which it is a party and in Officer's Certificates of the Seller delivered
on the Closing Date, as the case may be, were or will be, as applicable,
true and correct, and each Underwriter may rely on such representations and
warranties as if they were set forth herein in full.
(xxii) The Seller does not conduct business or have 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.
(xxiii) 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 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 World Omni or any 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 World Omni and its subsidiaries considered as one
enterprise.
(xxiv) 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", except for such taxes that are being
disputed by World Omni in good faith and
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if such dispute is adversely determined against World Omni it 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; 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 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.
(xxv) World Omni is not in violation of its organizational or
charter documents, or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in 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 property or assets is subject; the execution, delivery and
performance by World Omni of this 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 any applicable law,
administrative regulation or administrative or court decree.
(xxvi) 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,
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 the transactions contemplated by this 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 is a party or
of which any of its properties or assets is the subject that are not
described in the Prospectus, including ordinary routine litigation
incidental to its business, are, when considered in the aggregate, not
material.
(xxvii) No authorization, approval or consent of any court,
governmental authority or agency or any other Person is necessary in
connection with the execution,
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delivery and performance by World Omni of this Agreement or any Basic
Document to which World Omni is a party or the consummation by World Omni
of the transactions contemplated hereby or thereby, except such
authorizations, approvals or consents as will have been obtained on or
prior to, and will be in full force and effect as of, the Closing Date.
(xxviii) World Omni 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 has not 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.
(xxix) This Agreement has been duly authorized, executed and
delivered by World Omni.
(xxx) As of the Closing Date, each Basic Document to which World
Omni is a party has been duly authorized, 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).
(xxxi) On the Closing Date, the Trust will have good and marketable
title to the Receivables and the other property conveyed to the Trust on
the Closing Date, free and clear of all liens (except as permitted by the
Basic Documents) and will not have assigned to any Person any of its right,
title or interest in any such Receivables or other property conveyed to the
Trust on the Closing Date (except as permitted by the Basic Documents), or
shall have obtained the release of any such prior assignment.
(xxxii) Simultaneously with the transfer thereof to the Seller
pursuant to the Receivables Purchase Agreement, World Omni will be the sole
owner of all right, title and interest in, and will have good and
marketable title to the Receivables and the other property to be
transferred to the Seller, free and clear of all liens (except as permitted
by the Basic Documents, and except for the security interest granted by
World Omni in favor of Wachovia Bank, National Association, formerly known
as First Union National Bank, as collateral agent, pursuant to the Security
Agreement, dated as of June 7, 2001 and amended as of June 6, 2002, which
security interest will be released automatically and contemporaneously with
the transfer of the Receivables by World Omni to the Seller pursuant to the
Receivables Purchase Agreement). World Omni, pursuant to the Receivables
Purchase Agreement, is transferring to the Seller ownership of the
Receivables, the security interest in the Financed Vehicles securing the
Receivables and
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the proceeds of each of the foregoing, and, immediately prior to the
transfer thereof to the Trust, the Seller will be the sole owner of all
right, title and interest in, and will have good and marketable title to,
the Receivables and the other property to be transferred by it to the
Trust, free and clear of all liens (except as permitted by the Basic
Documents). The assignment of the Receivables, all documents and
instruments relating thereto and all proceeds thereof to the Trust,
pursuant to the Receivables Purchase Agreement and the Sale and Servicing
Agreement, vests in the Trust all interests which are purported to be
conveyed thereby, free and clear of any liens, security interests or
encumbrances.
(xxxiii) Simultaneously with the transfer of the Receivables to the
Seller, the Seller's interest in the Receivables and the proceeds thereof
shall be perfected upon the filing of UCC-1 financing statements (the
"Seller Financing Statements") in the offices specified in Schedule II
hereto and there shall be no unreleased statements identifying World Omni
as debtor or assignor affecting the Receivables filed in such offices other
than the Seller Financing Statements.
(xxxiv) Simultaneously with the transfer of the Receivables to the
Trust, the Trust's interest in the Receivables and the proceeds thereof
shall be perfected upon the filing of UCC-1 financing statements in the
offices specified in Schedule II (the "Trust Financing Statements") and
there shall be no unreleased statements identifying Seller as debtor or
assignor affecting the Receivables filed in such offices other than the
Trust Financing Statements. If a court concludes that the transfer of the
Receivables from the Seller to the Trust is a sale, the interest of the
Trust in the Receivables and the proceeds thereof will be perfected upon
the filing of the Trust Financing Statements. If a court concludes that
such transfer is not a sale, the Sale and Servicing Agreement and the
transactions contemplated thereby shall constitute a grant by the Seller to
the Trust of a valid security interest in the Receivables and the proceeds
thereof, which security interest will be perfected upon the filing of the
Trust Financing Statements. No filing or other action, other than the
filing of the Trust Financing Statements referred to above and any related
continuation statements, is necessary to perfect and maintain the interest
or the security interest of the Trust in the Receivables and the proceeds
thereof against third parties.
(xxxv) As of the respective dates set forth therein, the
representations and warranties of World Omni in each Basic Document to
which it is a party and in Officer's Certificates of World Omni delivered
on the Closing Date, will be true and correct, and each Underwriter may
rely on such representations and warranties as if they were set forth
herein in full.
(xxxvi) Simultaneously with the Trust's assignment of the Collateral
to the Indenture Trustee pursuant to the Indenture, the Indenture Trustee's
interest in the Collateral shall be perfected upon the filing of UCC-1
financing statements in the appropriate offices and there shall be no
unreleased statements identifying the Trust as debtor or assignor affecting
the Collateral filed in such offices other than such financing statements.
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(b) Any Officer's Certificate signed by any officer of the Seller or World
Omni and delivered to the Representative or counsel for the Underwriters shall
be deemed a representation and warranty of the Seller or World Omni, as the case
may be, to each Underwriter as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Notes. On the basis of and in
reliance on the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Seller agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Seller the aggregate principal
amount of each Class of Notes set forth in Schedule I hereto opposite the name
of such Underwriter, at a purchase price equal to the following percentages of
the aggregate initial principal balances thereof, (i) in the case of the Class
A-1 Notes, 100.000000%, (ii) in the case of the Class A-2 Notes, 99.991552%,
(iii) in the case of the Class A-3 Notes, 99.998398%, (iv) in the case of the
Class A-4 Notes, 99.993485% and (v) in the case of the Class B Notes,
99.986024%.
Each Class of Notes will initially be represented by one or more notes
registered in the name of Cede & Co., as the nominee of The Depository Trust
Company ("DTC"). The interests of beneficial owners of each Class of Notes will
be represented by book entries on the records of DTC and participating members
thereof. Definitive instruments evidencing the Notes will be available only
under the limited circumstances specified in the Indenture.
The Seller will deliver the Notes to the Representative for the respective
accounts of the Underwriters, against payment of the purchase price therefor in
immediately available funds payable to the order of the Seller, at the office of
Xxxxxxxx & Xxxxx, Citigroup Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (or at such other location as agreed upon among the Seller, World Omni and
the Representative) at 10:00 A.M., New York time, on March 11, 2003, or at such
other time not later than five full business days thereafter, as the Seller,
World Omni and the Representative determine, such time being herein referred to
as the "Closing Date". The instruments evidencing the Notes will be made
available for inspection at the above offices of Xxxxxxxx & Xxxxx (or at such
other location agreed upon among the Seller, World Omni and the Representative)
at least 24 hours prior to the Closing Date.
The Seller, World Omni and the Underwriters 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
or the Seller) 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. Certain Agreements of the Underwriters.
(a) It is understood that the Underwriters propose to offer the Notes for
sale to the public as set forth in the Prospectus.
(b) Until the Representative informs the Seller in writing that all of the
Notes have been sold by the Underwriters, each Underwriter covenants and agrees
to provide to the Seller each day, with respect to sales of the Notes made by
such Underwriter on such date at any price other than the public offering price
set forth on the cover page of the Prospectus, the information
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in writing (which may be in the form of a telecopy) necessary to enable the
Seller to prepare and file or transmit for filing with the Commission the
information requested by the Commission to be filed with respect to the
distribution of the Notes.
(c) Each Underwriter hereby severally and not jointly represents and
warrants to, and agrees with, the Seller and World Omni, that (a) it has not
offered or sold and, prior to the expiry of the period of six months from the
Closing Date, will not offer or sell any Notes to persons in the United Kingdom
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or who it is reasonable to expect will acquire, hold, manage or
dispose of investments (as principal or agent) for the purposes of their
businesses, or otherwise in circumstances that have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995, as amended, (b) it has complied
and will comply with all applicable provisions of the Financial Services and
Markets Act 2000 ("the FSMA") with respect to anything done by it in relation to
the Notes in, from or otherwise involving the United Kingdom, (c) it is a person
of a kind described in Articles 19 or 49 of the Financial Services and Markets
Act 2000 (Financial Promotion) Order 2001, as amended (the "Financial Promotion
Order") and (d) it has only communicated or caused to be communicated, and will
only communicate or cause to be communicated, in the United Kingdom any document
received by it in connection with the issue of the Notes to a person who is of a
kind described in Articles 19 or 49 of the Financial Promotion Order or who is a
person to whom such document may otherwise lawfully be communicated.
(d) The Underwriters covenant and agree that prior to the date which is
one year and one day after the last date upon which (i) each Class of Notes has
been paid in full, and (ii) all obligations due under any other securitized
financing by the Seller have been paid in full, the Underwriters will not
institute against, or join any other person in instituting against, the Seller
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceeding under any federal or state bankruptcy or similar
law. The foregoing shall not limit the right of any Underwriter to file any
claim in or otherwise take actions with respect to any such proceeding
instituted by any person not under such a constraint.
(e) Each Underwriter hereby severally and not jointly represents and
warrants that the Term Sheet constitutes the only "Series Term Sheet" (as such
term is defined in the no-action letter addressed to Greenwood Trust Company,
Discover Card Master Trust I dated April 5, 1996) and the only "Computational
Materials," "ABS Term Sheets," "Structural Term Sheets" or "Collateral Term
Sheet" (as such terms are defined in the no-action letters addressed to Xxxxxx,
Xxxxxxx Acceptance Corporation I, et al. dated May 20, 1994 and to the Public
Securities Association dated February 17, 1995) disseminated by it in connection
with offering of the Notes contemplated hereunder.
5. Certain Agreements of the Seller and World Omni. Each of the Seller
and World Omni jointly and severally covenants and agrees with each of the
Underwriters that:
(a) The Seller will file the Prospectus, properly completed, with the
Commission pursuant to and in accordance with subparagraph (2) (or, if
applicable and if consented to by the Representative, subparagraph (5)) of Rule
424(b) no later than the second business day following
11
the date it is first used. The Seller will advise the Representative promptly of
any such filing pursuant to Rule 424(b).
(b) During the period when a prospectus relating to the Notes is required
to be delivered under the Act, the Seller 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 or file any such amendment or supplement without the consent
of the Representative and will advise the Representative promptly of any
amendment or supplement of the Registration Statement or the Prospectus;
provided that, no such consent of the Representative will be required to file an
amendment or supplement under this Section 5(b) if the Seller receives an
opinion of counsel that such amendment or supplement is required to comply with
the Act. The Seller will advise the Representative promptly of the institution
by the Commission of any stop order proceedings in respect of the Registration
Statement. The Seller will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued. The
Seller will comply with the Act, the Exchange Act, the Trust Indenture Act of
1939, as amended and the rules and regulations contemplated thereunder so as to
permit the completion of the distribution of the Notes as contemplated in this
Agreement and in the Prospectus. The Seller will file with the Commission all
documents required to be filed pursuant to the Exchange Act within the time
periods specified in the Exchange Act or the rules and regulations promulgated
thereunder.
(c) If, at any time when a prospectus relating to the Notes is required to
be delivered under the Act, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or supplement
the Prospectus to comply with the Act, the Seller 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; provided that, no consent of the Representative as set forth in
Section 5(b) hereof will be required to file an amendment or supplement under
this Section 5(c) if the Seller receives an opinion of counsel that such
amendment or supplement is required to comply with the Act. 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 no later than seventeen months after the
date hereof, the Seller will cause the Indenture Trustee to make generally
available to the Noteholders an earnings statement covering a period of at least
12 months beginning after the later of (i) the effective date of the
registration statement relating to the Notes and (ii) the effective date of the
most recent post-effective amendment to the Registration Statement to become
effective prior to the date of this Agreement and, in each case, satisfying the
provisions of Section 11(a) of the Act (including Rule 158 promulgated
thereunder).
(e) The Seller will furnish to the Representative copies of the
registration statement as originally filed with the Commission and each
amendment thereto (in each case at least one of which will include all
exhibits), each related preliminary prospectus, the Term Sheet, the
12
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 Seller will arrange for the qualification of the Notes for sale
under the laws of such jurisdictions in the United States as the Representative
may designate and will continue such qualifications in effect so long as
required for the distribution of the Notes, provided that the Seller shall not
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 Notes are outstanding, the Seller or World Omni, as the
case may be, will deliver or cause to be delivered to the Representative, as
soon as each becomes available, copies of (i) each report relating to the Notes
delivered to Noteholders pursuant to the Basic Documents and, (ii) the annual
statement as to compliance and the annual statement of a firm of independent
public accountants furnished pursuant to the Basic Documents, (iii) each
certificate or notice delivered by the Servicer pursuant to the Basic Documents,
(iv) each periodic report required to be filed by the Seller with the Commission
pursuant to the Exchange Act, or any order of the Commission thereunder, and (v)
such other information concerning the Seller, World Omni, the Trust, the Notes
or the Certificates as the Representative may reasonably request from time to
time.
(h) The Seller and World Omni will pay all expenses incident to the
performance of their respective obligations under this Agreement, including
without limitation, (i) expenses incident to the word processing, printing and
reproduction of the registration statement as originally filed with the
Commission and each amendment thereto, preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto), (ii) the fees and
disbursements of the Owner Trustee, the Indenture Trustee and the Trust and
their respective counsel, (iii) the fees and disbursements of counsel and the
independent public accountants of the Seller and World Omni, (iv) the fees
charged by each of Xxxxx'x Investors Service, Inc. ("Moody's"), Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc.
("Standard & Poor's") and Fitch Ratings. ("Fitch" and, together with Moody's and
Standard & Poor's, the "Rating Agencies") in connection with the rating of each
Class of Notes, (v) the fees of DTC in connection with the book-entry
registration of the Notes and (vi) expenses (including reasonable fees and
disbursements of counsel) incurred by the Underwriters pursuant to Section 5(f)
hereof in connection with the qualification of the Notes for sale under the laws
of such jurisdictions in the United States as the Representative may designate.
(i) For a period of 45 days from the date hereof, none of the Seller,
World Omni or any of their respective affiliates will, without the prior written
consent of the Representative, directly or indirectly, offer, sell or contract
to sell or announce the offering of, in a public or private transaction, any
other collateralized securities similar to the Notes (it being understood that
this Section 5(i) shall not apply to (a) any securities issued by the World Omni
Master Owner Trust, (b) any securities issued by a trust formed by World Omni
Lease Securitization LLC, and (c) renewals of or amendments to existing
financing arrangements).
(j) To the extent, if any, that the rating provided with respect to any
Notes by any Rating Agency is conditional upon the furnishing of documents or
the taking of any other actions
13
by the Seller or World Omni, the Seller or World Omni, as the case may be, shall
furnish such documents and take any such other actions.
(k) Within 15 business days of the Closing Date, the Seller or World Omni,
as the case may be, will file or cause to be filed with the Commission a Form
8-K containing statistical information on the final pool of Receivables as of
the Cutoff Date comparable to the type of information contained in the
Prospectus relating to the Receivables as of February 12, 2003 (the "Form 8-K").
(l) At or prior to the filing of the Form 8-K with the Commission, the
Representative and the Seller shall have received a letter, dated the date
thereof, of PriceWaterhouseCoopers LLP ("PWC") 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 relating to
the Form 8-K.
6. Conditions of the Obligations of the Underwriters. The obligation of
the several Underwriters to purchase and pay for the Notes will be subject to
the accuracy of the respective representations and warranties on the part of the
Seller and World Omni herein, to the accuracy of the statements of the
respective officers of the Seller and World Xxxx made pursuant to the provisions
hereof, to the performance by the Seller and World Omni of their respective
obligations hereunder and to the following additional conditions precedent:
(a) On the date of this Agreement, the Representative and the Seller shall
have received a letter, dated the date thereof, of PWC 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.
(b) The Prospectus shall have been filed with the Commission in accordance
with the Rules and Regulations and Section 5(a) hereof. Prior to the Closing
Date, no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Seller, 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 each of the
Seller and World Omni, each dated the Closing Date, in which such officer shall
state, in the case of (A) the Seller that (1) the representations and warranties
of the Seller in each Basic Document to which it is a party and in this
Agreement were true and correct as of the date therein indicated, (2) to the
best knowledge of such officer after reasonable investigation, the Seller 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 Seller, 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
14
party and in this Agreement were true and correct as of the date therein
indicated, (2) to the best knowledge of such officer after reasonable
investigation, World Omni has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder and (3) subsequent
to the date of this Agreement, there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of World Omni except as set forth in or contemplated by the
Prospectus.
(d) The Representative shall have received:
(1) The favorable opinion of Xxxxxxxx & Xxxxx, special counsel to the
Seller and World Omni, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters, substantially
to the effect that:
(i) When paid for by the Underwriters in accordance with the terms
of this Agreement (assuming the due authorization, execution and delivery
of the Indenture by the Indenture Trustee and the Trust, the due execution
of the Notes by the Trust, and the due authentication and delivery of the
Notes by the Indenture Trustee in accordance with the Indenture), the Notes
will constitute the valid and binding obligations of the Trust, and will be
enforceable against the Trust in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, receivership or other laws relating to creditors rights
generally, and to general principles of equity including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity), and
will be validly issued and outstanding and entitled to the benefits
provided by the Indenture.
(ii) Assuming the due authorization of this Agreement and each Basic
Document to which World Omni is a party, World Omni has duly executed and
delivered this Agreement and each such Basic Document. Assuming the due
authorization, execution and delivery thereof by the parties thereto (other
than due execution and delivery by World Omni), this Agreement and each of
the Basic Documents (other than the Trust Agreement) to which the Seller,
World Omni or the Trust is a party constitutes the legal, valid and binding
obligation of the Seller, World Omni or the Trust, as applicable, and is
enforceable against the Seller, World Omni or the Trust, as applicable, in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, receivership or other
laws relating to or affecting creditors' rights generally, and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity), and except that the enforcement of rights
with respect to indemnification and contribution obligations and provisions
(a) purporting to waive or limit rights to trial by jury, oral amendments
to written agreements or rights of set-off or (b) relating to submission to
jurisdiction, venue or service of process, may be limited by applicable law
or considerations of public policy.
(iii) To the knowledge of such counsel, there is no legal or
governmental proceeding that is pending or threatened against the Seller
that has caused such counsel to conclude that such proceeding is required
by Item 103 of Regulation S-K to be described in the Prospectus but that is
not so described.
15
(iv) The statements in the Prospectus Supplement under the headings
"Summary of Terms," "Risk Factors," "Description of the Notes" and
"Description of the Trust Documents" and in the Base Prospectus under the
headings "Risk Factors," "Description of the Securities," "Description of
the Notes" and "Description of the Trust Documents" insofar as such
statements purport to summarize certain terms or provisions of the Notes
and the Basic Documents provide a fair summary of such provisions.
(v) The statements in the Prospectus Supplement under the headings
"Federal Income Tax Consequences" and "ERISA Considerations" and in the
Base Prospectus under the headings "Some Legal Aspects of the Receivables,"
"Federal Income Tax Consequences" and "ERISA Considerations" to the extent
such statements relate to the Notes and purport to summarize matters of
federal law or legal conclusions with respect thereto have been reviewed by
such counsel and are correct in all material respects.
(vi) The Seller is not required to obtain any consent, approval,
authorization or order of any governmental agency for the issuance,
delivery and sale of the Notes under this Agreement except for the order by
the Commission declaring the Registration Statement effective.
(vii) The Seller's execution and delivery of this Agreement and the
Basic Documents to which it is a party and the performance by it of its
obligations thereunder do not and will not: (i) constitute a violation by
the Seller of any applicable provision of any law, statute or regulation
(except that such counsel expresses no opinion in this paragraph as to
compliance with any disclosure requirement or any prohibition against fraud
or misrepresentation or as to whether performance of the indemnification or
contribution provisions in this Agreement would be permitted), (ii) breach,
or result in a default under, any existing obligation of the Seller under
any of the Specified Agreements (provided that such counsel expresses no
opinion as to compliance with any financial test or cross-default provision
in any such agreement), or (iii) to the knowledge of such counsel result in
a breach or violation of any Court Order. For purposes of such opinion,
"Specified Agreement" means the agreements listed on Exhibit B thereto, and
"Court Order" means a court or administrative order, writ, judgment or
decree that names the Seller and is specifically directed to its property
(it being understood that such counsel has not undertaken any investigation
to identify Court Orders to which the Seller is subject or reviewed any
Court Orders about which such counsel has actual knowledge).
(viii) Such counsel has no knowledge about any contract to which the
Seller is a party or to which any of its property is subject that has
caused such counsel to conclude that such contract is required to be
described in the Prospectus but is not so described or is required to be
filed as an exhibit to the Registration Statement but has not been so
filed.
(ix) Neither the Seller nor the Trust is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"1940 Act").
(x) The Registration Statement, as of its effective date, and the
Prospectus, as of the date thereof (in each case, with the exception of any
information incorporated by reference therein and any numerical, financial,
statistical and quantitative data included therein and any exhibits
thereto, as to which such counsel expresses no view), appeared
16
on their respective faces to be appropriately responsive in all material
respects to the requirements of the Act, and the Rules and Regulations
thereunder applicable to such documents as of the relevant date.
(xi) Registration Statements Nos. 333-69732 and 333-100621 were
declared effective under the Securities Act on November 19, 2001 and
January 31, 2003, respectively, and such counsel has no knowledge that any
stop order suspending their effectiveness has been issued or that any
proceedings for that purpose are pending before, or overtly threatened by,
the Commission.
(xii) On the basis of such counsel's participation in conferences and
examination of the documents referred to in such counsel's Opinion Letter,
considered in light of such counsel's understanding of applicable law and
the experience such counsel has gained through such counsel's practice and
relying as to matters of fact on statements of officers and other
representatives of the Seller and World Omni, nothing has come to such
counsel's attention through the Closing Date in the course of such
counsel's review of the Registration Statement and the Prospectus which
causes such counsel to conclude that, as of their respective effective
dates, the Registration Statements Nos. 333-69732 and 333-100621 contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or that as of its date or as of the date of such letter,
the Prospectus contained or contains any untrue statement of a material
fact or omitted or omits 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; it being understood that such counsel
expresses no view as to any information incorporated by reference in the
Registration Statement or the Prospectus or as to the adequacy or accuracy
of the financial, numerical, statistical or quantitative information
included in the Registration Statement or the Prospectus.
(xiii) The Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act").
(xiv) The Class A-1 Notes are "eligible securities" as defined in
Rule 2a-7(a)(10) promulgated under the 1940 Act.
(xv) The Notes will be characterized as indebtedness under the
existing tax laws of the United States of America.
(xvi) The Trust will not be characterized as an association (or
publicly traded partnership) taxable as a corporation under the existing
tax laws of the United States of America.
(xvii) Each of the Seller and the Trust is a registered organization
(as such term is defined in the New York UCC) organized under the laws of
the State of Delaware. The Seller and the Trust are, therefore, located,
for purposes of Article 9 of the New York UCC, in the State of Delaware and
the local law of Delaware governs perfection of a non-possessory security
interest in the Receivables granted by the Seller and the Trust. To the
extent the Receivables constitute "tangible chattel paper" under the New
York
17
UCC, the local law of the jurisdiction in which the Receivables are
physically located governs the effect of perfection or non-perfection and
the priority of a non-possessory security interest in the Receivables.
(xviii) World Omni is a registered organization (as such term is
defined in the New York UCC) organized under the laws of the State of
Florida. World Omni is, therefore, located, for purposes of Article 9 of
the New York UCC, in the State of Florida and the local law of Florida
governs perfection of a non-possessory security interest in the Receivables
granted by World Omni. To the extent the Receivables constitute "tangible
chattel paper" under the New York UCC, the local law of the jurisdiction in
which the Receivables are physically located governs the effect of
perfection or non-perfection and the priority of a non-possessory security
interest in the Receivables.
(xix) When each of the Receivables Purchase Agreement and the
Assignment Agreement has been duly executed and delivered by all parties
thereto and the Purchase Price for the Receivables has been paid by the
Seller, subject to the "rights" assumption set forth in the opinion, the
Seller will have a valid and enforceable security interest in the
Receivables and the identifiable proceeds thereof.
(xx) When each of the Basic Documents has been duly executed and
delivered by all parties thereto and the Notes and Certificates have been
delivered to the Seller by the Trust, subject to the "rights" assumption
set forth in the opinion, the Trust will have a valid and enforceable
security interest in the Receivables and the identifiable proceeds thereof.
When, in addition to the foregoing, the UCC-1 financing statement naming
the Seller as "debtor" has been duly filed in the Article 9 filing office
set forth in the opinion, the security interest in favor of the Trust in
the Receivables and identifiable proceeds thereof will be perfected.
(xxi) When each of the Basic Documents has been duly executed and
delivered by all parties thereto and the Notes have been issued to or upon
the order of the Trust, subject to the "rights" assumption set forth in the
opinion, the Indenture Trustee will have a valid and enforceable security
interest in the Receivables and the identifiable proceeds thereof. When, in
addition to the foregoing, the UCC-1 financing statement naming the Trust
as "debtor" has been duly filed in the Article 9 filing office set forth in
the opinion, the security interest in favor of the Indenture Trustee in the
Receivables and identifiable proceeds thereof will be perfected.
(xxii) Assuming the Receivables are created under, and are evidenced
solely by, retail installment sale contracts in the form attached as
Exhibit B to the opinion, and assuming they are completed in their entirety
and executed and there is nothing that would prevent them from being
enforceable, the Receivables constitute "tangible chattel paper" as defined
under Section 9-102(a)(78) of the New York UCC.
(xxiii) To the extent that the Receivables are tangible chattel paper
and are located in the State of Alabama, the effect of perfection and
non-perfection and the priority of a non-possessory security interest in
the Receivables is governed by the Alabama UCC. Based solely on such
counsel's review of Officers' Certificates, (A) the security interest of
the Seller in the Receivables is subject to no prior security interest
18
under the Alabama UCC that is perfected solely by the filing of financing
statements in Florida under the Florida UCC, (B) the security interest of
the Trust in the Receivables is subject to no prior security interest under
the Alabama UCC that is perfected solely by filing financing statements in
Delaware under the Delaware UCC, and (C) the security interest of the
Indenture Trustee in the Receivables is subject to no prior security
interest under the Alabama UCC that is perfected solely by the filing of
financing statements in Delaware under the Delaware UCC.
(2) The favorable opinion of Bilzin Xxxxxxx Xxxx Xxxxx Price & Xxxxxxx
LLP, special Florida counsel to the Seller and World Omni, dated the Closing
Date and satisfactory in form and substance to the Representative and counsel
for the Underwriters, substantially to the effect that:
(i) World Omni was incorporated under the Florida General
Corporation Act and its status is active; World Omni has corporate power to
execute, deliver and perform its obligations under this Agreement and each
Basic Document to which it is a party and the Seller is qualified as a
foreign limited liability company to transact business in Florida and its
status is active.
(ii) This Agreement has been duly authorized by World Omni.
(iii) Each Basic Document to which World Omni is a party has been duly
authorized by World Omni.
(iv) To its knowledge after investigation, no authorization,
approval, consent or order of any state court or state authority or agency
is required in connection with World Omni's or the Seller's execution and
performance of the Basic Documents to which it is a party, the issuance,
offering or the sale of the Notes to the Underwriters, except those
authorizations, approvals, consents and orders which have previously been
obtained and are in full force and effect as of the Closing Date; provided,
that such counsel need express no opinion as to state securities laws.
(v) The statements in the Prospectus Supplement under the caption
"State and Local Tax Consequences" with respect to the application of the
loan rule to the extent that they constitute matters of law, summaries of
legal matters, documents or proceedings or legal conclusions relating to
the laws of the States of Florida have been reviewed by such counsel and
are correct in all material respects.
(vi) Assuming Florida law applies, upon the filing of the Seller
Financing Statement, the Seller will have a perfected security interest in
the Receivables in which World Omni has an interest to the extent a
security interest therein can be perfected by filing a financing statement
under the Florida UCC. The UCC Search Report sets forth the proper filing
office(s) and the proper debtor necessary to identify those persons who
under the Florida UCC have on file financing statements against World Omni
covering the Receivables. The UCC Search Report identifies no person who
has filed a financing statement against World Xxxx describing the
Receivables prior to the Seller Financing Statement.
19
(vii) [Reserved]
(viii) The Notes will constitute "indebtedness" for purposes of
Florida income tax law.
(ix) Such counsel is familiar with World Omni's standard operating
procedures relating to the acquisition of a perfected first priority
security interest in the vehicles financed by World Omni pursuant to retail
installment sale contracts in the ordinary course of their business.
Assuming that these standard procedures are followed with respect to the
perfection of security interests in the Financed Vehicles, World Omni has
acquired or will acquire perfected first priority security interests in the
Financed Vehicles.
(x) The loan rule promulgated under the Florida Corporate Income
Tax Code and included in the Florida Administrative Code relating to
interest on loans by "financial organizations" (as such term is defined
therein), should not apply to an investment in the Notes by such a
financial organization.
(xi) To the extent that Florida law applies, the Receivables
conveyed by World Omni to the Seller are either "tangible chattel paper",
"accounts" or "general intangibles" as defined in the Uniform Commercial
Code as in effect in State of Florida.
(xii) Assuming that all other elements necessary to render a retail
installment sale contract legal, valid, binding and enforceable were
present in connection with the execution, delivery and performance of each
retail installment sale contract (including completion of the applicable
retail installment sale contract fully and accurately), that the terms and
conditions and forms of the retail installment sale contracts as completed,
are in compliance with all applicable laws, rules and regulations, and
assuming that no action was taken in connection with the execution,
delivery and performance of each retail installment sale contract that
would give rise to a defense to the legality, validity, binding effect and
enforceability of such retail installment sale contract, nothing in the
forms of such retail installment sale contracts, as attached as an Exhibit
to the Trust Agreement, would render such retail installment sale contract
other than legal, valid, binding and enforceable.
(xiii) Assuming the validity, binding effect and enforceability in all
other respects, such forms of retail installment sale contracts are in
sufficient compliance with the Florida Motor Vehicle Retail Sales Finance
Act and all other Applicable Florida Laws so as not to render the Florida
Receivables void or voidable at the election of the related obligor.
"Applicable Florida Laws" means those laws of the State of Florida that
given the nature of the transaction and the parties to it, a lawyer in the
State of Florida exercising customary diligence would reasonably recognize
as being applicable to the opinion contemplated in paragraph (xiii).
(xiv) To the knowledge of such counsel, after investigation, each of
the Seller and World Omni possesses such certificates, authorities,
licenses, permits and other governmental authorizations materially
necessary to conduct the business now operated by it or as contemplated in
this Agreement or the Basic Documents, and neither of such
20
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.
(xv) None of (A) the execution, delivery and performance by World
Omni of this Agreement or by World Omni of any Basic Document to which it
is a party, (B) the consummation of the transactions contemplated herein or
therein by it or (C) the fulfillment of the terms hereof or thereof by it
will, to such counsel's knowledge, conflict with, result in a breach of or
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 World Omni pursuant to the terms of (i) World Omni's
organizational documents or bylaws or (ii) any applicable Federal or
Florida law, statute or regulation or, to the best knowledge of such
counsel, any judgment, order or decree applicable to World Omni of any
court, regulatory body or other governmental instrumentality having
jurisdiction over World Omni within the State of Florida.
(xvi) Neither (A) the execution, delivery and performance by the
Seller of this Agreement or by the Seller of any Basic Document to which it
is a party nor (B) the fulfillment of the terms hereof or thereof by the
Seller will conflict with, result in a breach of or constitute a default
under or result in a violation of any applicable Florida law, statute or
regulation except for such laws, statutes or regulations which are outside
the scope of such counsel's opinion.
(3) The favorable opinion of Xxxxxxxx & Xxxxx, special counsel to the
Seller and World Omni, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters, subject to
certain considerations set forth therein, substantially to the effect that:
(i) In a properly presented and argued case in a proceeding under
Title 11 of the United States Code, 11 U.S.C. ss.101 et seq. (the
"Bankruptcy Code") in which World Omni is the debtor, the bankruptcy court
would not, under applicable federal bankruptcy law, apply the doctrine of
substantive consolidation to consolidate the assets and liabilities of the
Seller with the assets and liabilities of World Omni.
(ii) In a properly presented and argued case in a proceeding under
the Bankruptcy Code in which World Omni is the debtor, the bankruptcy court
would not compel the turnover of the Receivables or proceeds thereof to the
bankruptcy trustee under Section 542 of the Bankruptcy Code based on a
determination that the Receivables are property of World Xxxx's bankruptcy
estate under Section 541 of the Bankruptcy Code.
(iii) In a properly presented and argued case in a proceeding under
the Bankruptcy Code in which World Omni is the debtor, the bankruptcy court
would not prohibit the Seller or the Trust from collecting the Receivables
or using the proceeds thereof pursuant to the automatic stay provisions of
Section 362(a) of the Bankruptcy Code.
21
(iv) The Indenture has created a valid security interest under
Article 9 of the UCC in favor of the Indenture Trustee in the interests of
the Trust in the Reserve Account and in all "security entitlements," as
defined in Section 8-102(a)(17) of the UCC, that are credited to the
Reserve Account.
(v) The Sale and Servicing Agreement and the Indenture are effective
to perfect such security interests, and such security interests shall be
prior in right to any other security interest created under the UCC in the
Reserve Account and such cash collateral, instruments and security
entitlements.
(4) The favorable opinion of in-house counsel to the Seller and World
Omni, dated the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, substantially to the effect
that:
(i) To the knowledge of such counsel, (A) there are no legal or
governmental proceedings pending or threatened involving World Omni 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 World Omni is a party or to which its 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, not material.
(ii) World Omni is not an "investment company" as such term is
defined in the Investment Company Act.
(iii) The execution and delivery by World Omni of this Agreement and
the other Basic Documents to which it is a party, and the performance by
World Omni of its agreements in this Agreement and such Basic Documents, do
not, to the knowledge of such counsel, breach or result in a default under,
any obligation of World Omni pursuant to the terms of, 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, which
breach, default or violation would be reasonably likely to result in a
material adverse change in the business, financial condition or results of
operations of World Omni or have a material adverse effect on World Omni's
ability to perform its obligations under this Agreement or the Basic
Documents.
(5) Reliance letters relating to each legal opinion relating to the
transactions contemplated by this Agreement and the Basic Documents rendered by
counsel to the Seller or World Omni to the Owner Trustee, the Indenture Trustee
or any Rating Agency.
(6) The favorable opinion of counsel to the Indenture Trustee, dated the
Closing Date and satisfactory in form and substance to the Representative and
counsel to the Underwriters, to the effect that:
(i) The Indenture Trustee has been duly incorporated and is validly
existing as a New York banking corporation, in good standing under the laws
of the State of New York with full power and authority (corporate and
other) to own its properties and conduct its business, as presently
conducted by it, and to enter into and perform its
22
obligations as Indenture Trustee under each Basic Document to which the
Indenture Trustee is a party.
(ii) Each Basic Document to which the Indenture Trustee is a party
has been duly authorized, executed and delivered by the Indenture Trustee
and, assuming the due authorization, execution and delivery thereof by the
other parties thereto, will constitute a legal, valid and binding
obligation of the Indenture Trustee enforceable in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iii) The Notes have been duly authenticated and delivered by the
Indenture Trustee.
(iv) Neither the execution nor delivery by the Indenture Trustee of
each Basic Document to which it is a party nor the consummation of any of
the transactions by the Indenture Trustee contemplated thereby require the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to, any governmental authority
or agency under any existing federal or state law governing the banking or
trust powers of the Indenture Trustee.
(v) The execution and delivery of each Basic Document to which the
Indenture Trustee is a party and the performance by the Indenture Trustee
of its terms do not conflict with or result in a violation of (A) any
federal or state law or regulation governing the banking or trust powers of
the Indenture Trustee, (B) the Articles of Association or Bylaws of the
Indenture Trustee or (C) to the best knowledge of such counsel, any
indenture, lease or material agreement to which the Indenture Trustee is a
party or to which its assets are subject.
(7) The favorable opinion of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., special
counsel to the Owner Trustee, dated the Closing Date and satisfactory in form
and substance to the Representative and counsel to the Underwriters, to the
effect that:
(i) The Owner Trustee is a national banking association duly formed
and validly existing under the laws of the United States of America.
(ii) The Owner Trustee has all necessary power and authority to
execute, deliver and perform the Trust Agreement, to authenticate the Trust
Certificates, to consummate the transactions to be performed by the Owner
Trustee as contemplated by the Trust Agreement, and to enter into and to
take all actions required of it under the Trust Agreement.
(iii) The Trust Agreement has been duly executed and delivered by the
Owner Trustee and each Basic Document to which the Trust is a party, the
Notes and the Certificates have been duly executed and delivered on behalf
of the Trust by the Owner Trustee.
23
(iv) To the knowledge of such counsel, no authorization, consent or
other order of any federal government authority or agency having
jurisdiction in the matter is required to be obtained by the Owner Trustee
for the valid authorization, execution and delivery by the Owner Trustee of
the Trust Agreement or for the execution and delivery of the Trust
Certificates.
(v) Neither the execution, delivery or performance by the Owner
Trustee of the Trust Agreement, nor the consummation of the transactions
contemplated thereby, nor compliance with the terms thereof, conflict with
or result in a breach of or constitute a default under its organization
certificate or By-laws, any law, rule or regulation of the United States of
America governing its banking or trust powers or, to the knowledge of such
counsel, without independent investigation, any judgment or order
applicable to it or its acts, properties or, to the knowledge of such
counsel, without independent investigation, any indenture, mortgage,
contract or other agreement or instrument to which the Owner Trustee in it
respective capacities is a party or by which it is bound.
(8) [Reserved]
(9) The favorable opinion of XxXxx Xxxxxx LLP, counsel for the
Underwriters, dated the Closing Date, with respect to the validity of the Notes
and such other related matters as the Representative shall request, which
opinions shall be satisfactory in form and substance to the Representative and
counsel for the Underwriters.
(10) The favorable opinion of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., special
Delaware counsel for the Seller and the Trust, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel to the
Underwriters, to the effect that:
(i) The Trust Agreement constitutes the valid and binding obligation
of the Owner Trustee and the Seller enforceable against the Owner Trustee
and the Seller in accordance with its terms subject to (i) applicable
bankruptcy, insolvency, moratorium, receivership, reorganization,
fraudulent conveyance and similar laws relating to and affecting the rights
and remedies of creditors generally, (ii) principles of equity including
applicable law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law) and (iii) the
effect of public policies on provisions of indemnification and
contribution.
(ii) The Trust has been duly formed and is validly existing as a
statutory trust under the Delaware Statutory Trust Act (the "Statutory
Trust Act"). The Trust has the power and authority under the Trust
Agreement and the Statutory Trust Act to execute, deliver and perform its
obligations under the Basic Documents to which it is a party.
(iii) The Certificates are in due and proper form, all conditions
precedent provided for in the 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 Trust Agreement, will
be duly and validly issued and outstanding and entitled to the benefits of
the Trust Agreement.
24
(iv) [Reserved]
(v) [Reserved]
(vi) Under (S) 3805(b) of the Statutory Trust Act, no creditor of
any Certificateholder shall have any right to obtain possession of, or
otherwise exercise legal or equitable remedies with respect to, the
property of the Trust except in accordance with the terms of the Trust
Agreement.
(vii) Under (S) 3805(c) of the Statutory Trust Act, except to the
extent otherwise provided in the Trust Agreement, a Certificateholder has
no interest in specific Trust property.
(viii) Under (S) 3808(a) and (b) of the Statutory Trust Act, the Trust
may not be terminated or revoked by any Certificateholder, and the
dissolution, termination or bankruptcy of any Certificateholder shall not
result in the termination or dissolution of the Trust, except to the extent
otherwise provided in the Trust Agreement.
(ix) The execution and delivery by the Trust of the Indenture, the
Administration Agreement and the Sale and Servicing Agreement do not
require any consent, approval or authorization of, or any registration or
filing with, any governmental authority of the State of Delaware (other
than the filing of UCC financing statements).
(x) The execution and delivery by the Trust of the Basic Documents
to which it is a party, and the performance by the Trust of its obligations
thereunder, do not violate, conflict with or result in a breach of or
constitute a default under (i) the organizational documents of the Trust or
(ii) any Delaware law statute or regulation applicable to the Trust.
(xi) The Seller has been duly formed and is validly existing as a
limited liability company in good standing under the Delaware Limited
Liability Company Act (the "LLC Act"), with power and authority, under the
LLC Act and the limited liability company agreement of the Seller, to enter
into and perform its obligations under each Basic Document to which it is a
party; and the limited liability company interests of the Seller issued to
World Omni have been duly authorized and are validly issued. World Omni
shall not be obligated personally for any of the debts, obligations or
liabilities of the Seller, whether arising in contract, tort or otherwise,
solely by reason of being a member of the Seller, except as World Omni may
be obligated to make contributions to the Seller and to repay any funds
wrongfully distributed to it. World Omni may be liable for its own tortious
or wrongful conduct and its obligations as set forth in the limited
liability company agreement of the Seller.
(xii) This Agreement has been duly authorized, executed and delivered
by the Seller.
(xiii) Each Basic Document to which the Seller is a party and the
written order to the Owner Trustee to execute and deliver the Certificates
has been duly authorized, executed and delivered by the Seller.
25
(xiv) The execution and delivery by the Seller of this Agreement and
the Basic Documents do not require any consent, approval or authorization
of, or any registration or filing with, any governmental authority of the
State of Delaware (other than the filing of UCC financing statements).
(xv) The execution and delivery by the Seller of this Agreement and
the Basic Documents to which it is a party, and the performance by the
Seller of its obligations thereunder, do not violate, conflict with or
result in a breach of or constitute a default under (i) the organizational
documents of the Seller or (ii) any Delaware law statute or regulation.
(xvi) Under the Statutory Trust Act and the Trust Agreement, the Owner
Trustee, on behalf of the Trust is authorized to issue, and to instruct the
Indenture Trustee to authenticate, the Notes, in accordance with the terms
of the Indenture
(e) The Class A-1 Notes shall be rated in the highest short-term rating
category by each of Xxxxx'x, Standard & Poor's and Fitch. Each Class of the
Class A-2 Notes, Class A-3 Notes and Class A-4 Notes shall be rated "AAA" (or
its equivalent) by each of Xxxxx'x, Standard & Poor's and Fitch and the Class B
Notes shall be rated in at least "A" (or its equivalent) by at least two
nationally recognized rating agencies.
(f) On or prior to the Closing Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance of the Notes
and the Certificates and sale of the Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the parties to the Basic Documents in connection
with the issuance of the Notes and the Certificates and sale of the Notes as
herein contemplated shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(g) If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representative by notice to the Seller 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 Seller 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 or incorporated by reference
in the Registration Statement (or any amendment thereto), 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 the Term Sheet, any preliminary prospectus or
the Prospectus (or any
26
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 Seller and World Omni; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 7(c) hereof, the fees and disbursements of counsel
chosen by the Representative), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any such
expense is not paid under clause (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with the Underwriters' Information; provided, that the
foregoing indemnity with respect to the Term Sheet or any preliminary prospectus
shall not inure to the benefit of any Underwriter (or to the benefit of the
person controlling such Underwriter) from whom the person asserting any such
losses, liabilities, claims, damages or expenses purchased Notes if such untrue
statement or omission or alleged untrue statement or omission made in such Term
Sheet or preliminary prospectus is eliminated or remedied in the Prospectus (as
amended or supplemented if the Seller or World Omni shall have furnished to the
Underwriters any amendments or supplements thereto) and, if required by law, a
copy of the Prospectus (as so amended or supplemented if the Seller or World
Omni shall have furnished to the Underwriters any amendments or supplements
thereto) shall not have been furnished to such person at or prior to the written
confirmation of the sale of such Notes to such person.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Seller 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 Seller 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 in the Term Sheet, any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), in
reliance upon and in conformity with the Underwriters' Information.
(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
27
any liability which it may have other than on account of this indemnity
agreement except to the extent that the indemnifying party shall be prejudiced
by such failure. 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.
(d) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement (i) includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action and (ii)
does not include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an indemnified party.
8. Contribution. If the indemnification provided for in Section 7 hereof
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) thereof, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the loss,
liability, claim, damage or expense referred to in subsection (a) or (b) of
Section 7 (i) in such proportion as is appropriate to reflect the relative
benefits received by the Seller and World Omni on the one hand and the
Underwriters on the other from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Seller 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 Seller 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
Seller bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Seller, World Omni or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the loss, liability, claim, damage or expense
referred to in the first sentence of this Section shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this Section. Notwithstanding the provisions of this Section, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Notes underwritten by it and 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
28
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 Seller and
World Omni, each officer of the Seller who signed the Registration Statement and
each person, if any, who controls either the Seller or World Omni within the
meaning of Section 15 of the Act shall have the same rights to contribution as
the Seller or World Omni, as the case may be. The Underwriters' respective
obligations to contribute pursuant to this Section are several in proportion to
the principal amount of the Notes set forth opposite their respective names in
Schedule I hereto and not joint.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller 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 Seller, World Omni or any of their
respective representatives, officers or directors or any controlling Person, and
will survive delivery of and payment for the Notes. If for any reason the
purchase of the Notes by the Underwriters is not consummated, the Seller 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
Seller, World Omni and the Underwriters pursuant to Section 7 hereof shall
remain in effect. If the purchase of the Notes by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 11 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 10 hereof, the Seller and World Omni will
reimburse the Underwriters for all out-of-pocket expenses (including the
reasonable fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Notes.
10. Termination of Agreement. The Representative may terminate this
Agreement, by notice to the Seller 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
Statements, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Seller or World Omni, whether or not arising in the ordinary course of business;
(ii) if there has occurred, since the date of this Agreement or since the
respective dates as of which information is given in the Registration
Statements, any downgrading in the rating of the debt securities of the Seller
or World Omni by any "nationally recognized statistical rating organization" (as
such term is defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Seller or World Omni (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) if there has
occurred, since the date of this Agreement, any material adverse change in the
financial markets in the United States or any outbreak of hostilities or a
declaration by the United States of a national emergency or war or any other
major act of terrorism involving the United States or other calamity or crisis,
the effect of which is such as to make it, in the judgment of the
Representative, impracticable to market any Class of Notes or to enforce
contracts for the sale of any Class of Notes; (iv) if trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed or maximum
ranges for prices for securities have been required, by either of said Exchanges
or by order of the
29
Commission or any other governmental authority; or (v) if a banking moratorium
has been declared by either federal, New York, Delaware or Florida 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 Notes which it or
they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, but not the obligation,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the total aggregate principal amount of the Notes, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in such proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10%
of the total aggregate principal amount of the Notes, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action pursuant to this Section shall relieve any defaulting Underwriter
from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representative or the Seller 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.
30
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 Credit Suisse
First Boston LLC, Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxx Xxxxxxxxx; (ii) the Seller, will be mailed, delivered or sent by facsimile
and confirmed to it at World Omni Auto Receivables LLC, 000 X.X. 12th Avenue,
Deerfield Beach, Florida 33442, Attention: Xxxxxxx X. Xxxxxxxxx, Treasurer
(facsimile number (000) 000-0000), with a copy to Xxxxx Xxxx Xxxxxxx, Chief
Counsel-Treasury Division (facsimile number (000) 000-0000); or (iii) 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: Xxxxxxx X. Xxxxxxxxx, Treasurer (facsimile number (954)
429-2685), with a copy to Xxxxx Xxxx Xxxxxxx, Chief Counsel-Treasury Division
(facsimile number (000) 000-0000).
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling Persons referred to in Sections 7 and 8 hereof, and no
other Person will have any right or obligation hereunder.
14. Severability of Provisions. Any covenant, provision, agreement or term
of this Agreement that is prohibited or is held to be void or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof.
15. Miscellaneous. This Agreement constitutes the entire agreement and
understanding of the parties hereto with respect to the matters and transactions
contemplated hereby and supersedes all prior agreements and understandings
whatsoever relating to such matters and transactions. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. The headings in this
Agreement are for the purposes of reference only and shall not limit or
otherwise affect the meaning hereof.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
17. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to any
otherwise applicable principles of conflicts of laws.
31
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 Seller and World Omni and the
Underwriters in accordance with its terms.
Very truly yours,
WORLD OMNI AUTO RECEIVABLES LLC
By: /s/ Xxxx Xxxxxxxxxxxx
---------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Assistant Treasurer
WORLD OMNI FINANCIAL CORP.
By: /s/ Xxxx Xxxxxxxxxxxx
---------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Assistant Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Xxxx X. XxXxxxxxxx, XX
-----------------------------------
Name: Xxxx X. XxXxxxxxxx, XX
Title: Managing Director
For itself and as Representative of the other
Underwriter named in Schedule I hereto.
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SCHEDULE I
Principal Principal Principal Principal Principal
Amount of Amount of Amount of Amount of Amount of
Name of Class A-1 Class A-2 Class A-3 Class A-4 Class B
Underwriter Notes Notes Notes Notes Notes
------------------------- -------------- -------------- -------------- -------------- --------------
Credit Suisse First
Boston LLC $ 73,237,500 $ 60,450,000 $ 99,587,500 $ 53,978,750 $ 16,943,438
Wachovia Securities, Inc. 73,237,500 60,450,000 99,587,500 53,978,750 16,943,438
Banc of America
Securities LLC 16,537,500 13,650,000 22,487,500 12,188,750 3,825,937
Barclays Capital Inc. 16,537,500 13,650,000 22,487,500 12,188,750 3,825,937
Scotia Capital (USA) Inc. 9,450,000 7,800,000 12,850,000 6,965,000 2,186,250
-------------- -------------- -------------- -------------- --------------
Total ................ $ 189,000,000 $ 156,000,000 $ 257,000,000 $ 139,300,000 $ 43,725,000
============== ============== ============== ============== ==============
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SCHEDULE II
With respect to the transfer by World Omni:
(i) Secretary of State for the State of Florida.
With respect to the transfer by the Seller:
(ii) Secretary of State for the State of Delaware.
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