EXECUTION COPY
WORLD OMNI AUTO RECEIVABLES TRUST 2000-A
$158,884,000
6.693620% Asset Backed Notes, Class A-1
$321,019,000
7.05% Asset Backed Notes, Class A-2
$168,637,000
7.13% Asset Backed Notes, Class A-3
$117,436,000
7.20% Asset Backed Notes, Class A-4
UNDERWRITING AGREEMENT
July 13, 2000
FIRST UNION SECURITIES, INC.
As Representative of the
Several Underwriters
One First Union Center, TW-9
301 South College Street
Charlotte, NC 28288
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 you
and each of the other underwriters named in Schedule I hereto (the
"Underwriters"), for whom you are acting as representative (the
"Representative"), with respect to the sale by the Seller to the Underwriters of
$158,884,000 aggregate principal amount of 6.693620% Asset Backed Notes, Class
A-1 (the "Class A-1 Notes"), $321,019,000 aggregate principal amount of 7.05%
Asset Backed Notes, Class A-2 (the "Class A-2 Notes"), $168,637,000 aggregate
principal amount of 7.13% Asset Backed Notes, Class A-3 (the "Class A-3 Notes")
and $117,436,000 aggregate principal amount of 7.20% Asset Backed Notes, Class
A-4 (the "Class A-4 Notes" and, together with the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes, the "Notes") of the World Omni Auto Receivables
Trust 2000-A (the "Trust") under the terms and conditions herein contained.
The Notes will be issued pursuant to an indenture, dated as of June 1,
2000 (the "Indenture"), between the Trust and The Chase Manhattan Bank, as
indenture trustee (in such capacity, the "Indenture Trustee"). The Seller will
retain the asset backed certificates (the "Certificates") issued pursuant to a
trust agreement, dated as of June 1, 2000 (the "Trust Agreement"), among the
Seller, The Bank of New York (Delaware), as Delaware trustee (in such capacity,
the "Delaware Trustee") and The Bank of New York, 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.
The assets of the Trust will include, among other things, a pool of motor
vehicle retail installment sale contracts (the "Receivables") secured by new and
used automobiles and light trucks financed thereby (the "Financed Vehicles"),
and certain monies received thereunder after May 31, 2000 (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 June 1, 2000 (the "Sale and
Servicing Agreement") among the Trust, the Seller and World Omni (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") dated as of June 1,
2000 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") dated as of June 1,
2000 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) A registration statement on Form S-3 (No. 333-35542), including
a prospectus, relating to the Notes has been filed with the Securities and
Exchange Commission (the "Commission") and has become effective. Such
registration statement, as amended as of the date of this Underwriting
Agreement (the "Agreement") is 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 date of this
Agreement that is subject to completion; the "Base Prospectus" means the
base prospectus dated July 13, 2000 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 (as such term is defined in Section 3 hereof), 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 second 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 fourth paragraph, the third and fourth sentences of the
fifth paragraph, the sixth paragraph and the first sentence of the eighth
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
("EDGAR") 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").
(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; 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 filed the preliminary prospectus supplement
relating to the Notes pursuant to and in accordance with Rule 424(b).
(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 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
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 and are
in full force and effect as of the Closing Date.
(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"; 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
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, delivery and performance by World Omni of
this Agreement or any Basic Document to which any of them is a party or
the consummation by any of them of the transactions contemplated hereby or
thereby, except such authorizations, approvals or consents as will have
been obtained and are in full force and effect as of the Closing Date.
(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, or shall have obtained the
release of any such prior assignment.
(xxxii) Under generally accepted accounting principles, (x) World
Omni will report its transfer of the Receivables transferred by it to the
Seller pursuant to the Receivables Purchase Agreement and (y) the Seller
will report its transfer of the Receivables to the Trust pursuant to the
Sale and Servicing Agreement, as a sale of the Receivables for financial
accounting purposes and not as a financing of the Receivables.
(xxxiii) Immediately prior to 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 has 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). 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 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.
(xxxiv) 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
"Financing Statements") in the offices specified in Schedule II hereto and
there shall be no unreleased statements affecting the Receivables filed in
such offices other than the Financing Statements.
(xxxv) 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 the Financing Statements and there
shall be no unreleased statements affecting the Receivables filed in such
offices other than the 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 Financing Statements in the office of the
Secretary of State of the State of Florida. 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 Financing Statements in the office of the Secretary of State
of the State of Florida. No filing or other action, other than the filing
of the Financing Statements in the office of the Secretary of State of the
State of Florida 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.
(xxxvi) 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.
(xxxvii) 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 affecting the Collateral filed in such
offices other than such financing statements.
(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, 99.875002%, (ii) in the case of the Class A-2 Notes, 99.817250%,
(iii) in the case of the Class A-3 Notes, 99.796170% and (iv) in the case of the
Class A-4 Notes, 99.735530%.
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
Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, NY 10038 (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 July 19, 2000, 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 Cadwalader, Wickersham & Taft (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 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 represents and warrants to, and agrees with, the
Seller and World Omni, that (a) it has not offered or sold, and 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
otherwise in circumstances that do not constitute an offer to the public in the
United Kingdom for the purposes of the Public Offers of Securities Regulations
1995, (b) it has complied and will comply with all applicable provisions of the
Financial Services Act of 1986 of Great Britain with respect to anything done by
it in relation to the Notes in, from or otherwise involving the United Kingdom
and (c) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document in connection with the issue of the Notes to a
person who is of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements (Exemptions) Order 1996 or is a person to whom
the document may otherwise lawfully be issued or passed on.
(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.
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 the earlier of
the date of determination of the offering price or the date it is first
used. The Seller will advise the Representative promptly of any such
filing pursuant to Rule 424(b).
(b) 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. The Seller will advise the Representative
promptly of any amendment or supplement of the Registration Statement or
the Prospectus and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement. The 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. 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 sixteen 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 be signed and
will include all exhibits), each related preliminary prospectus, the
Prospectus and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as the Representative may
reasonably request.
(f) The 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, the Delaware 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 Moody's Investors Service, Inc. ("Moody's"),
Standard & Poor's, a division of The McGraw-Hill Companies, Inc.
("Standard & Poor's") and Fitch, Inc. ("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. If this Agreement is
terminated by the Representative in accordance with the provisions of
Section 6(g) or clause (i) or clause (ii) of Section 10 hereof, the Seller
and World Omni shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel to the Underwriters.
(i) For a period of 45 days from the date hereof, none of the
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 (other than (a) the Automobile Lease Asset Backed Notes, Class B,
issued by World Omni 1999-A Automobile Lease Securitization Trust and (b)
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 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.
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 Omni 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 Arthur Andersen LLP ("Arthur
Andersen") 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 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 Cadwalader, Wickersham & Taft, 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) The Notes, when duly executed, authenticated and delivered in
the manner contemplated in the Indenture, will be legal, valid and binding
obligations of the Trust, 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, execution and delivery thereof
by the parties thereto, this Agreement and each of the Basic Documents
(other than the Trust Agreement) to which the Trust, the Seller and World
Omni is a party, will be enforceable against the Trust, the Seller and
World Omni, 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 are no legal or
governmental proceedings pending or threatened involving the Seller that
are required to be disclosed in the Registration Statement other than
those disclosed therein. For purposes of the opinion set forth in this
paragraph, such counsel may not regard any legal or governmental actions,
investigations or proceedings to be "threatened" unless the potential
litigant or executive, legislative, judicial, administrative or regulatory
bodies of the State of New York or the United States of America (each, a
"Governmental Authority") has communicated orally or in writing to the
Seller a present intention to initiate such actions, investigations or
proceedings against the Seller.
(iv) The statements in the Prospectus Supplement under the captions
"Summary of Terms," "Risk Factors," "Description of the Notes" and
"Description of the Trust Documents" and in the Base Prospectus under the
captions "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 captions
"Federal Income Tax Consequences" and "ERISA Considerations" and in the
Base Prospectus under the captions "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 issuance and sale by the Seller of the Notes to the
Underwriters pursuant to this Agreement, the compliance by the Seller or
World Omni with the provisions of the Basic Documents to which either is a
party and the consummation by the Seller or World Omni of the transactions
therein contemplated do not require any consent, approval, license,
authorization or validation of, or filing, recording or registration with,
any Governmental Authority pursuant to those laws, rules, statutes and
regulations of the State of New York and of the United States of America
which, in such counsel's experience, are normally applicable to
transactions of the type contemplated by the Basic Documents ("Applicable
Laws") to be obtained on the part of the Seller or World Omni, except
those that may be required under state securities or blue sky laws, and
such other approvals that have been obtained and, to such counsel's
knowledge, are in effect.
(vii) The compliance by the Seller with the provisions of the Basic
Documents to which it is a party and the consummation of the transactions
therein contemplated (a) do not result in a violation of any provision of
the certificate of formation or limited liability company agreement of the
Seller or any Applicable Laws applicable to the Seller, and (b) based on
the Officer's Certificate attached to such opinion (and a review of the
documents, if any, listed in such Officer's Certificate) does not breach
or result in a violation of, or 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 the Company pursuant to the terms of (i)
any indenture, mortgage, deed of trust, agreement or instrument to which
the Seller is a party or by which the Seller is bound or to which any of
the property or assets of the Seller is subject, or (ii) any judgment,
decree or order known to such counsel which is applicable to the Seller
and, pursuant to any Applicable Laws, is issued by any Governmental
Authority having jurisdiction over the Seller or its properties.
(viii) To the knowledge of such counsel, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or
to be filed as exhibits thereto other than those described or referred to
therein or filed as exhibits thereto.
(ix) Neither the Seller nor the Trust is an "investment company" as
such term is defined in the Investment Company 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 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) Such counsel shall advise as to the effective date of the
Registration Statement and that to such counsel's knowledge, no stop order
with respect thereto has been issued by the Commission.
(xii) On the basis of the information gained by such counsel in the
course of the representation of the Seller and World Omni 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,
nothing has come to such counsel's attention in the course of such
counsel's review of the Registration Statement and the Prospectus which
causes such counsel to believe that, as of the effective date of the
Registration Statement, the Registration Statement 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 Notes will constitute "indebtedness" for federal income
tax purposes.
(xv) The Indenture is effective to create in favor of the Indenture
Trustee a valid security interest in all of the Trust's right, title and
interest in and to the Collateral, as defined in the Indenture (including
Custodial Securities and Instruments, as defined below) and the proceeds
thereof to secure the payment of principal and interest on, and any other
amounts owing in respect of, the Notes to the extent a security interest
can be created therein under the Uniform Commercial Code as in effect on
the date of such opinion in the State of New York.
(xvi) The Class A-1 Notes, when issued, will constitute "eligible
securities" under Rule 2a-7 of the Investment Company Act.
(2) The favorable opinion of English, McCaughan & O'Bryan, P.A., 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, is current in the payment of fees due to the Florida
Department of State and its status is "active;" World Omni has corporate
power and authority to own, lease and operate its properties, to conduct
its business as presently conducted and to enter into and perform its
obligations under this Agreement and each Basic Document to which it is a
party; the Seller is duly qualified as a foreign limited liability company
to transact business in Florida and its status is active; and, to the best
of their knowledge, all of the issued and outstanding membership interests
of the Seller are owned by World Omni, free and clear of liens.
(ii) This Agreement has been duly authorized, executed and delivered
by World Omni.
(iii) Each Basic Document to which World Omni is a party has been
duly authorized, executed and delivered by World Omni.
(iv) 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) To the extent that Article 9 of the Uniform Commercial Code as
in effect in the State of Florida (the "Florida UCC") is applicable
(without regard to conflicts of laws principles), and assuming that the
security interest created by the Receivables Purchase Agreement in the
Receivables has been duly created and has attached, upon the filing of
UCC-1 financing statements with the Secretary of State of the State of
Florida the Seller will have a perfected security interest in the transfer
of Receivables pursuant to the Receivables Purchase Agreement and the
proceeds thereof, and such security interest will be prior to any other
security interest that is perfected solely by the filing of financing
statements under the Florida UCC, excluding purchase money security
interests under ss. 9-312(4) of the UCC and temporarily perfected security
interests in proceeds under ss. 9-306(3) of the Delaware UCC.
(vii) To the extent that Article 9 of the Uniform Commercial Code as
in effect in the State of Florida (the "Florida UCC") is applicable
(without regard to conflicts of laws principles), and assuming that the
security interest created by the Sale and Servicing Agreement in the
Receivables has been duly created and has attached, upon the filing of
UCC-1 financing statements with the Secretary of State of the State of
Florida the Trust will have a perfected security interest in the transfer
of Receivables pursuant to the Sale and Servicing Agreement and the
proceeds thereof, and such security interest will be prior to any other
security interest that is perfected solely by the filing of financing
statements under the Florida UCC, excluding purchase money security
interests under ss. 9-312(4) of the UCC and temporarily perfected security
interests in proceeds under ss. 9-306(3) of the Delaware UCC.
(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) The Receivables conveyed by World Omni to the Seller and by the
Seller to the Trust are "chattel paper" 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, 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; assuming the validity, binding effect and
enforceability in all other respects, such forms of retail installment
sale contracts are in sufficient compliance with applicable federal and
Florida state consumer protection laws so as not to be rendered void or
voidable at the election of the related obligor.
(xiii) To the knowledge of such counsel, 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 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.
(xiv) 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 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) the organizational, charter or partnership documents
or bylaws of it or (ii) any applicable law, statute or regulation or, to
the best knowledge of such counsel, any judgment, order or decree
applicable to such entity of any court, regulatory body or other
governmental instrumentality having jurisdiction over such entity.
(xv) 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 it
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.
(3) The favorable opinion of Cadwalader, Wickersham & Taft, 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) If World Omni were to become a debtor in a case under 11 U.S.C.
ss.ss. 101-1330 (the "Bankruptcy Code"), a federal bankruptcy courT which
acted reasonably and correctly applied the law to the facts as set forth
in such opinion would not disregard the separate corporate existence of
the Seller so as to order substantive consolidation of the assets and
liabilities of the Seller with those of World Omni.
(ii) If World Omni were to become a debtor in a case under the
Bankruptcy Code, a federal bankruptcy court, which acted reasonably and
correctly applied the law to the facts as set forth in such opinion after
full consideration of all relevant factors, would hold that (i) the
Receivables and payments thereunder and proceeds thereof are not property
of the estate of World Omni under Bankruptcy Code section 541 and (ii) the
automatic stay arising pursuant to Bankruptcy Code section 362 upon the
commencement of a bankruptcy case involving World Omni is not applicable
to payments on the Notes.
(iii) If the Seller were to become a debtor in a case under the
Bankruptcy Code, a federal bankruptcy court, which acted reasonably and
correctly applied the law to the facts as set forth herein after full
consideration of all relevant factors, would hold either that (x) the
undivided portion of the Receivables represented by the Notes and payments
thereunder is (i) not property of the estate of the Seller under
Bankruptcy Code section 541 and (ii) the automatic stay arising pursuant
to Bankruptcy Code section 362 upon the commencement of a bankruptcy case
involving the Seller is not applicable to payments on the Notes, or (y) in
the event a court were to recharacterize the transfer of the Receivables
from the Seller to the Trust as a financing rather than a sale, the Trust
will have a security interest in the Receivables pursuant to Section 2.02
of the Sale and Servicing Agreement.
(iv) With respect to that portion of the Collateral consisting of
Custodial Securities, when the Custodian has indicated by book-entry a
Security Entitlement to Custodial Securities as credited to the Securities
Account, then the Secured Party, as the Entitlement Holder with respect to
such Security Entitlement, will have a first-priority perfected security
interest therein under the New York UCC.
(v) With respect to that portion of the Collateral consisting of
Instruments, assuming that the Custodian has possession of the Instruments
in the State of New York, endorsed to the Custodian or in blank by a duly
authorized officer of the Trust, the security interest of the Indenture
Trustee therein is a first-priority perfected security interest under the
New York UCC.
(vi) With respect to Cash Collateral, to the extent that the Cash
Collateral constitutes a "deposit account" as defined in Section
9-105(1)(e) of the New York UCC, and assuming that the Cash Collateral is
subject to the sole dominion and control of the Indenture Trustee and is
held on the books and records of Chase in the name of the Indenture
Trustee, the provisions of the Indenture will be effective under the laws
of the State of New York to create in favor of the Indenture Trustee a
security interest in such Cash Collateral, enforceable as against the
holder of (i) any security interest thereafter created by the Trust and
(ii) any judgment lien thereafter obtained against the Trust.
For purposes of such opinion: (i) "Book-Entry Regulations" means,
collectively, the Treasury Regulations and the FNMA and FHLMC Regulations
(each as defined below); (ii) "Book-Entry Security" means a Treasury
Security, FHLMC Security or FNMA Security credited by the New York Fed to
a Participant's Securities Account (each as defined below); (iii) "Cash
Collateral" means that portion of the Collateral that consists of cash;
(iv) "Certificated Security" means a "certificated security" (as defined
in Section 8-102(a)(4) of the UCC as in effect on the date hereof in the
State of New York (the "New York UCC"); (v) "Chase" means The Chase
Manhattan Bank; (vi) "Collateral" means, collectively Cash Collateral and
Securities Account Property (as defined below); (vii) "Custodial
Securities" means, collectively, Book-Entry Securities, Certificated
Securities and DTC Securities (as defined below); (viii) "Custodian" means
Chase, acting in the capacity of a Securities Intermediary (as defined
below); (ix) "DTC" means The Depository Trust Company, a registered
clearing agency; (x) "DTC Securities Account" means the account maintained
by DTC for the Custodian with respect to DTC Securities; (xi) "DTC
Security" means a "security" (as defined in Section 8-102(a)(15) of the
New York UCC) (A) physically held by DTC or an agent of DTC, including
without limitation GNMA Securities (as defined below), or (B) registered
on the books of the issuer thereof in the name of DTC or an agent of DTC;
(xii) "Entitlement Holder" means a person identified in the records of a
Securities Intermediary as the person having a Security Entitlement
against such Securities Intermediary (each as defined below); (xiii) FHLMC
Security" means a security issued or guaranteed by the Federal Home Loan
Mortgage Corporation; (xiv) "FNMA and FHLMC Regulations" means the
Secretary of HUD's Regulation of the Federal National Mortgage Association
(Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac):
Book-Entry Procedures, as set forth in 61 Fed. Reg. 63944 (Dec. 2, 1996),
codified at 24 C.F.R. Part 81, as amended; (xv) "FNMA Security" means a
security issued or guaranteed by the Federal National Mortgage
Association; (xvi) "GNMA Security" means a security issued or guaranteed
by the Government National Mortgage Association; (xvii) "Instrument" means
an "instrument" (as defined in Section 9-105(1)(i) of the New York UCC);
(xviii) "New York Fed" means the Federal Reserve Bank of New York; (xix)
"New York UCC" means the Uniform Commercial Code as in effect on the date
hereof in the State of New York; (xx) "Participant" means a Person (as
defined in the Treasury Regulations) that maintains a Participant's
Securities Account with the New York Fed; (xxi) "Participant's Securities
Account" means an account in the name of a Participant of the New York Fed
to which Book-Entry Securities held for a Participant are or may be
credited; (xxii) "Secured Obligations" means the obligations of the Trust
under the Indenture; (xxiii) "Securities Account" means the account
established by the Custodian in connection with the transactions
contemplated by the Indenture; (xxiv) "Securities Account Property" means
Custodial Securities credited to the Securities Account; (xxv) "Securities
Intermediary" means a person, including a bank or broker, that in the
ordinary course of its business maintains securities accounts for others
and is acting in that capacity, and includes a "clearing corporation" (as
defined in Section 8-102(a)(5) of the New York UCC); (xxvi) "Security
Entitlement" means the rights and property interest of an Entitlement
Holder with respect to (A) a financial asset specified in Part 5 of
Article 8 of the New York UCC or (B) a Book-Entry Security specified in
the Treasury Regulations; (xxvii) "Treasury Regulations" means the
Regulations of the Department of the Treasury Governing Book-Entry
Treasury Bonds, Notes and Bills, as set forth in 61 Fed. Reg. 43626 (Aug.
23, 1996), codified at 31 C.F.R. Part 357, as amended; and (xxviii)
"Treasury Security" means a security issued or guaranteed by the U.S.
Department of the Treasury.
(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 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 Emmett, Marvin & Martin, 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 has been incorporated and is validly existing
as a banking corporation, in good standing under the laws of the State of
New York and is authorized thereunder and pursuant thereto to transact the
business of banking, to exercise fiduciary power and to enter into and
perform its obligations as Owner Trustee under each Basic Document to
which the Owner Trustee is a party.
(ii) Each Basic Document to which the Owner Trustee is a party has
been duly authorized, executed and delivered by the Owner Trustee.
(iii) Each Note has been duly executed and delivered by the Owner
Trustee. The Certificates have been duly executed, authenticated and
delivered by the Owner Trustee.
(iv) Neither the execution nor delivery by the Owner Trustee of each
Basic Document to which it is a party nor the consummation of any of the
transactions by the Owner Trustee contemplated thereby require the consent
or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to, any Person or entity,
including any governmental authority or agency under any existing federal
or state law.
(v) The execution and delivery of each Basic Document to which the
Owner Trustee is a party and the performance by the Owner 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 Owner
Trustee, (B) the Articles of Association or Bylaws of the Owner Trustee or
(C) to the best knowledge of such counsel, any indenture, lease or
material agreement to which the Owner Trustee is a party or to which its
assets are subject.
(8) The favorable opinion of Richards, Layton & Finger, special counsel to
the Delaware 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 Delaware Trustee has been incorporated and is validly
existing as a banking corporation, in good standing under the laws of the
State of Delaware and is authorized thereunder and pursuant thereto to
transact the business of banking, to exercise fiduciary power and to enter
into and perform its obligations as Delaware Trustee under each Basic
Document to which the Delaware Trustee is a party.
(ii) Each Basic Document to which the Delaware Trustee is a party
has been duly authorized, executed and delivered by the Delaware Trustee.
(iii) Neither the execution nor delivery by the Delaware Trustee of
each Basic Document to which it is a party nor the consummation of any of
the transactions by the Delaware Trustee contemplated thereby require the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to, any Person or entity,
including any governmental authority or agency under any existing law of
the State of Delaware or the United States governing the banking and trust
powers of the Delaware Trustee.
(iv) The execution and delivery of each Basic Document to which the
Delaware Trustee is a party and the performance by the Delaware 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
Delaware Trustee, (B) the Articles of Association or Bylaws of the
Delaware Trustee or (C) to the best knowledge of such counsel, relying on
a certificate of the officer of the Delaware Trustee attached hereto, any
indenture, lease or material agreement to which the Delaware Trustee is a
party or to which its assets are subject.
(9) The favorable opinion of Stroock & Stroock & Lavan 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 Richards, Layton & Finger, special Delaware
counsel for the Seller and the Trust, date 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, the Delaware Trustee and the Seller enforceable
against the Owner Trustee, the Delaware 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
business trust under the Delaware Business Trust Act (the "Business Trust
Act"). The Trust has the power and authority under the Trust Agreement and
the Business 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.
(iv) To the extent that Article 9 of the Uniform Commercial Code as
in effect in the State of Delaware (the "Delaware UCC") is applicable
(without regard to conflicts of laws principles), and assuming that the
security interest created by each of the Sale and Servicing Agreement and
the Indenture in the Receivables has been duly created and has attached,
upon the filing of UCC-1 financing statements with the Secretary of State
of the State of Delaware the Trust will have a perfected security interest
in the transfer of Receivables pursuant to the Sale and Servicing
Agreement and the proceeds thereof, and such security interest will be
prior to any other security interest that is perfected solely by the
filing of financing statements under the Delaware UCC, excluding purchase
money security interests under ss. 9-312(4) of the UCC and temporarily
perfected security interests in proceeds under ss. 9-306(3) of the
Delaware UCC and the Trustee will have a perfected security interest in
such Receivables and the proceeds thereof, and such security interest will
be prior to any other security interest that is perfected solely by the
filing of financing statements under the Delaware UCC, excluding purchase
money security interests under ss. 9-312(4) of the UCC and temporarily
perfected security interests in proceeds under ss. 9-306(3) of the
Delaware UCC.
(v) No re-filing or other action is necessary under the Delaware UCC
in order to maintain the perfection of such security interests except for
the filing of continuation statements at five year intervals.
(vi) Under ss. 3805(b) of the Business 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 ss. 3805(c) of the Business Trust Act, a
Certificateholder has no interest in specific Trust property.
(viii) Under ss. 3805(a) and (c) of the Business 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.
(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, will 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 laws of the State of
Delaware, with power and authority 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 or not 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.
(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.
(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, will 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 Business 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) Each Class of Notes shall be rated in the highest rating category by
each of Moody's, Standard & Poor's and Fitch.
(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 Omni 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 any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the 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 any preliminary prospectus shall not inure
to the benefit of any Underwriter (or to the benefit of the person controlling
such Underwriter) from whom the person asserting any such losses, liabilities,
claims, damages or expenses purchased Notes if such untrue statement or omission
or alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (as amended or supplemented if the
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 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 any liability which it may have
other than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action. In no event shall
an indemnifying party be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
8. Contribution. If the indemnification provided for in Section 7 hereof
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) thereof, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the loss,
liability, claim, damage or expense referred to in subsection (a) or (b) of
Section 7 (i) in such proportion as is appropriate to reflect the relative
benefits received by the 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 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 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
Statement, 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 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 any material adverse change in the financial markets in
the United States or any outbreak of hostilities or other calamity or crisis,
the effect of which is such as to make it, in the judgment of the
Representative, impracticable to market any Class of Notes or to enforce
contracts for the sale of any Class of Notes; (iv) if trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed or maximum
ranges for prices for securities have been required, by either of said Exchanges
or by order of the Commission or any other governmental authority; or (v) if a
banking moratorium has been declared by either federal, New York, Delaware 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.
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 First Union
Securities, Inc., One First Union Center, TW-9, 301 South College Street,
Charlotte, NC 28288, Attention: Bennett Cole (facsimile number (704) 838-1085);
(ii) the Seller, will be mailed, delivered or sent by facsimile and confirmed to
it at World Omni Auto Receivables LLC, 190 N.W. 12th Avenue, Deerfield Beach,
Florida 33442, Attention: Patrick C. Ossenbeck, Assistant Treasurer (facsimile
number (954) 429-2600); or (iii) World Omni, will be mailed, delivered or sent
by facsimile and confirmed to it at World Omni Financial Corp., 190 N.W. 12th
Avenue, Deerfield Beach, Florida 33442, Attention: Patrick C. Ossenbeck,
Assistant Treasurer (facsimile number (954) 429-2685).
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.
<PAGE>
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: ________________________________________
Patrick C. Ossenbeck
Assistant Treasurer
WORLD OMNI FINANCIAL CORP.
By: ________________________________________
Patrick C. Ossenbeck
Assistant Treasurer
CONFIRMED AND ACCEPTED, as of
the date first above written.
FIRST UNION SECURITIES, INC.
By: __________________________
Name:
Title:
For itself and as Representative
of the other Underwriters named
in Schedule I hereto.
<PAGE>
<TABLE>
SCHEDULE I
<CAPTION>
Principal Principal Principal Principal
Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4
Name of Underwriter Notes Notes Notes Notes
------------------- --------- --------- --------- ---------
<S> <C> <C> <C> <C>
Banc of America Securities LLC $ 60,375,920 $121,987,220 $ 64,082,060 $ 44,625,680
First Union Securities, Inc. $ 60,375,920 $121,987,220 $ 64,082,060 $ 44,625,680
Chase Securities Inc. $ 25,421,440 $ 51,363,040 $ 26,981,920 $ 18,789,760
Dresdner Kleinwort Benson NA LLC $ 12,710,720 $ 25,681,520 $ 13,490,960 $ 9,394,880
------------ ------------ ------------ ------------
Total ........................ $158,884,000 $321,019,000 $168,637,000 $117,436,000
</TABLE>
<PAGE>
SCHEDULE II
Secretary of State of the State of Florida
Secretary of State of the State of Delaware
