Exhibit 4.2
EXECUTION COPY
WORLD OMNI MASTER OWNER TRUST
$120,000,000
Series 2001-1 Floating Rate Automobile Dealer Floorplan
Asset Backed Notes, Class A
Placement Agency Agreement
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February 21, 2001
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center, North Tower
New York, New York 10281
Ladies and Gentlemen:
WODFI LLC, a Delaware limited liability company (the "Transferor") and
World Omni Financial Corp. ("World Omni"), a Florida corporation, hereby confirm
their respective agreements with Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill") with respect to Merrill acting as agent (the "Agent")
for the sale by the Transferor of $120,000,000 of Series 2001-1 Floating Rate
Automobile Dealer Floorplan Asset Backed Notes, Class A (the "Direct Purchase
Notes") issued by the World Omni Master Owner Trust (the "Issuer" or the
"Trust").
The Issuer was created as a Delaware business trust under the Trust
Agreement (the "Trust Agreement"), dated as of November 22, 1999, between the
Transferor and Chase Manhattan Bank Delaware, a Delaware banking corporation
(the predecessor-by-merger to Chase Manhattan Bank USA, National Association),
as owner trustee (in such capacity, the "Owner Trustee"). The Notes will be
issued pursuant to an Amended and Restated Indenture, dated as of April 6, 2000
(the "Indenture"), between the Issuer and BNY Midwest Trust Company, an Illinois
banking corporation (as successor-in-interest to the corporate trust
administration of Harris Trust & Savings Bank), as indenture trustee (in such
capacity, the "Indenture Trustee"), as supplemented by the Series 2001-1
Supplement (the "Series Supplement"), to be dated as of March 6, 2001 (the
"Closing Date"), between the Issuer and the Indenture Trustee. The Notes will be
secured by the Collateral pledged to the Indenture Trustee under the Indenture.
The Collateral includes, among other things, wholesale receivables generated by
World Omni from time to time in certain revolving financing arrangements with
automobile dealers to finance their automobile, light duty truck and other motor
vehicle inventory and collections on the Receivables. Certain Receivables
existing at the opening of business on November 22, 1999 have been, and
specified Receivables arising thereafter have
been and will continue to be, sold, assigned, transferred and conveyed by World
Omni to the Transferor pursuant to the Amended and Restated Receivables Purchase
Agreement, dated as of April 6, 2000, as amended by Amendment No. 1 thereto
dated August 11, 2000 (the "RPA") between World Omni and the Transferor. The
Transferor has sold, assigned, transferred and conveyed and will continue to
sell, assign, transfer and convey such property to the Issuer pursuant to the
Amended and Restated Trust Sale and Servicing Agreement, dated as of April 6,
2000, as amended by Amendment No. 1 thereto dated as of August 11, 2000 (the
"Sale and Servicing Agreement") among World Omni, the Transferor and the Issuer
and the Issuer has pledged such property to the Indenture Trustee.
The Trust Agreement, the Sale and Servicing Agreement, the Indenture, the
Series Supplement, the RPA and the Administration Agreement (the "Administrative
Agreement"), dated as of November 22, 1999, among the Issuer, World Omni and the
Indenture Trustee, are referred to herein collectively as the "Basic Documents".
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto in the Underwriting Agreements (as defined below).
Simultaneously with the sale of the Direct Purchase Notes, the Transferor
will sell $157,000,000 aggregate principal amount of the Class A Notes and
$23,000,000 aggregate principal amount of the Class B Notes (the "Underwritten
Notes" and, together with the Direct Purchase Notes, the "Offered Notes"), with
respect to the Class A Notes, to the several underwriters (the "Class A
Underwriters") named in (and pursuant to) the Underwriting Agreement relating to
the Class A Notes, dated February 21, 2001 (the "Class A Underwriting
Agreement"), among the Seller, the Servicer, and the Class A Underwriters and,
with respect to the Class B Notes, to the underwriter (the "Class B
Underwriter", and with the Class A Underwriters, the "Underwriters") named in
(and pursuant to) the Underwriting Agreement relating to the Class B Notes,
dated February 21, 2001 (the "Class B Underwriting Agreement", and with the
Class A Underwriting Agreement, the "Underwriting Agreements"), among the
Seller, the Servicer, and the Class B Underwriter.
1. Appointment. Subject to the terms and conditions stated herein and
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subject to the reservation by the Transferor and World Omni of the right to sell
the Offered Notes to the Underwriters, the Transferor and World Omni hereby
agree that, to the extent they sell the Direct Purchase Notes in a direct
placement, the Direct Purchase Notes will be sold only through the Agent.
1.1 Agent Not Acting as Principal. The Agent, in its capacity as a
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placement agent hereunder, shall not have any obligation to purchase the Direct
Purchase Notes from the Transferor and World Omni as principal.
1.2 Solicitations as Agent. If agreed upon between the Agent and the
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Transferor and World Omni, the Agent, acting solely as an agent for the
Transferor and World Omni and not as principal, will solicit offers for the
purchase of the Direct Purchase Notes. The Agent will communicate to the
Transferor and World Omni, orally, each offer for the purchase of the Direct
Purchase Notes solicited by it on an agency basis other than those offers
rejected by the Agent. The Agent shall have the right, in its discretion
reasonably exercised, to reject any
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offer for the purchase of the Direct Purchase Notes, in whole or in part, and
any such rejection shall not be deemed a breach of its agreement contained
herein. The Transferor and World Omni may accept or reject any offer for the
purchase of the Direct Purchase Notes, in whole or in part. The Agent shall make
reasonable efforts to assist the Transferor and World Omni in obtaining
performance by each purchaser whose offer for the purchase of the Direct
Purchase Notes has been solicited by it on an agency basis and accepted by the
Transferor and World Omni. The Agent shall not have any liability to the
Transferor and World Omni in the event that any such purchase is not
consummated. If the Transferor and World Omni shall default on its obligation to
deliver Direct Purchase Notes to a purchaser whose offer has been solicited by
the Agent on an agency basis and accepted by the Transferor and World Omni, the
Transferor and World Omni shall hold the Agent harmless against any loss, claim
or damage arising from or as a result of such default by the Transferor and
World Omni.
2. Representations, Warranties and Covenants.
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2.1 Representations, Warranties and Covenants of the Transferor and
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World Omni. Each of the Transferor and World Omni, jointly and severally,
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represents and warrants to the Agent, as of the date of this Agreement and as of
the Closing Date, as follows:
(i) A registration statement on Form S-3 (No. 333-84579), including a form
of prospectus, relating to the registration of the Notes, and a pre-effective
Amendment No. 1 thereto has been filed with the Securities and Exchange
Commission (the "Commission") and, the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission, was
declared effective on March 9, 2000 under the Securities Act of 1933, as amended
(the "Act"), and either (1) is not proposed to be amended or (2) is proposed to
be amended by amendment or post-effective amendment. If the Transferor does not
propose to amend such registration statement and if any post-effective amendment
to such registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent such post-effective
amendment has been declared effective by the Commission. For purposes of this
Agreement, "Effective Time" means if the Transferor has advised the Agent that
it (1) does not propose to amend such registration statement, the date and time
as of which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or (2) proposes to file an
amendment or post-effective amendment to such registration statement, the date
and time as of which such registration statement, as amended by such amendment
or post-effective amendment, as the case may be, is declared effective by the
Commission. "Effective Date" means the date of the Effective Time. Such
registration statement, as amended at the Effective Time, including all
information, if any, deemed to be a part of such registration statement as of
the Effective Time pursuant to Rule 430A(b) under the Act, and including the
exhibits thereto, is hereinafter referred to as the "Registration Statement",
and the prospectus supplement (the "Prospectus Supplement") and prospectus (the
"Base Prospectus") relating to the Notes, in the form first transmitted to the
Commission for filing after the date of this Agreement pursuant to and in
accordance with Rule 424(b) under the Act ("Rule 424(b)"), or (if no such filing
is required) as included in the Registration Statement, is hereinafter referred
to as the "Prospectus". The Prospectus delivered to you for use in connection
with the offering of the Notes will be identical to the electronically
transmitted copies thereof filed with
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the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
("EDGAR") system, except to the extent permitted by Regulation S-T.
(ii) If the Effective Time is prior to the execution and delivery of this
Agreement: (A) on the Effective Date, the Registration Statement conformed, and
on the date of this Agreement the Registration Statement will conform, in all
material respects with the requirements of the Act and the rules and regulations
of the Commission promulgated under the Act (the "Rules and Regulations") and at
such times did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading; and (B) on the date of this Agreement, at the
time of the filing of the Prospectus pursuant to Rule 424(b) and at the Closing
Date, the Prospectus will conform in all material respects to the requirements
of the Act and the Rules and Regulations and does not include, or will not
include, any untrue statement of a material fact, nor does the Prospectus omit,
nor will it omit, any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If the Effective Time is subsequent to the execution and delivery of
this Agreement: (A) on the Effective Date, the Registration Statement and the
Prospectus will conform in all material respects to the requirements of the Act
and the Rules and Regulations and the Registration Statement will not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; and (B) on the Effective Date, at the time of the filing of the
Prospectus pursuant to Rule 424(b), if required, and at the Closing Date, the
Prospectus will not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The
two immediately preceding sentences do not apply to statements in or omissions
from the Registration Statement or Prospectus based upon written information
furnished to the Transferor by the Agent specifically for use therein.
(iii) The Basic Documents conform in all material respects to the
descriptions thereof and the statements in relation thereto contained in the
Prospectus.
(iv) The Direct Purchase Notes conform in all material respects to the
description thereof and the statements in relation thereto contained in the
Prospectus; the Direct Purchase Notes have been duly and validly authorized and,
when executed, issued, authenticated and delivered in accordance with the
Indenture and when delivered to the Agent, against payment of the consideration
specified herein, will be duly and validly issued and outstanding and entitled
to the benefits of the Indenture.
(v) None of the Issuer, Transferor or World Omni is now or, as a result
of the transactions contemplated by this Agreement, will become, an "investment
company", nor is any of them "controlled" by an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended.
(vi) As of the Closing Date, (A) each representation and warranty of World
Omni made as of the Closing Date in the RPA will be true and correct, the Agent
may rely on such representations and warranties and neither World Omni nor the
Transferor will be in breach of the RPA; (B) each representation and warranty of
the Transferor and World Omni in the Sale and
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Servicing Agreement made as of the Closing Date will be true and correct, the
Agent may rely on such representations and warranties and neither World Omni,
the Transferor nor the Trust will be in breach of the Sale and Servicing
Agreement; and (C) each representation and warranty of the Transferor in the
Trust Agreement will be true and correct, the Agent may rely on such
representations and warranties and the Transferor will not be in breach of the
Trust Agreement.
(vii) The representations and warranties in Officer's Certificates of
World Omni or the Transferor delivered on the Closing Date were or will be true
and correct as of the date of such Officer's Certificate, and the Agent may rely
on such representations and warranties as if they were set forth herein in full.
(viii) The Pool Balance as of the Closing Date will be equal to at least
the Required Pool Balance.
(ix) Since the respective dates as of which information is given in the
Prospectus, except as otherwise set forth therein, (A) there has been no
material adverse change or development resulting in a prospective material
adverse change in the condition, financial or otherwise, or business prospects,
of World Omni or the Transferor, whether or not arising in the ordinary course
of business and (B) there have been no transactions entered into by World Omni
or the Transferor, other than those in the ordinary course of their respective
businesses, that are material with respect to World Omni or the Transferor.
(x) The execution, delivery and performance by each of World Omni and
the Transferor, as the case may be, of this Agreement, the Basic Documents to
which it is a party and the Direct Purchase Notes, the consummation of the
transactions contemplated herein and therein and compliance by it with its
obligations hereunder and thereunder have been duly and validly authorized by
all necessary action (corporate or otherwise) and will not conflict with or
constitute a breach of or default under, or result in the creation or imposition
of any Lien (except as permitted by the Basic Documents) upon any of its
property or assets pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it may be a party, by which
it may be bound or to which any of its properties or assets is subject, nor will
such action result in any violation of the provisions of its charter or
organizational documents, bylaws, or any applicable law, administrative
regulation or administrative or court decree.
(xi) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending or, to the
knowledge of either World Omni or the Transferor threatened, against or
affecting World Omni or the Transferor, that is required to be disclosed in the
Registration Statement and that is not disclosed or that might result in any
material adverse change in its condition, financial or otherwise, or in its
earnings, business affairs or business prospects or that might materially and
adversely affect its properties or assets or that might materially and adversely
affect the consummation of this Agreement or any Basic Document to which any of
such entities is a party or by which it may be bound; all pending legal or
governmental proceedings to which World Omni or the Transferor is a party or of
which any of their respective properties or assets is the subject that are not
described in the Registration Statement, including ordinary routine litigation
incidental to their respective businesses, are, considered in the aggregate, not
material; and there are no contracts or documents of World
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Omni or the Transferor, that are required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations that have not
been so filed.
(xii) Except such as may be required by the Act, the Rules and
Regulations or state securities laws, no authorization, approval or consent of
any court, governmental authority or agency or any other Person is necessary in
connection with (A) the issuance of the Direct Purchase Notes or the offering
and sale of the Direct Purchase Notes, (B) the execution, delivery and
performance by World Omni or the Transferor of this Agreement, any Basic
Document to which it is a party, or the Direct Purchase Notes or (C) the
consummation by World Omni or the Transferor of the transactions contemplated
hereby or thereby, except such authorizations, approvals or consents as will
have been obtained and are in full force and effect as of the Closing Date.
(xiii) This Agreement has been duly executed and delivered by World Omni
and the Transferor.
(xiv) As of the Closing Date, each of the Basic Documents to which either
World Omni or the Transferor is a party has been duly executed and delivered by
each such entity, as applicable, and, assuming the due authorization, execution
and delivery thereof by the other parties thereto, will constitute the legal,
valid and binding agreement of World Omni or the Transferor, as the case may be,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws affecting enforcement of creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(xv) The Transferor will use the proceeds of the Direct Purchase Notes
as described under the caption "Use of Proceeds" in each of the Prospectus
Supplement and the Base Prospectus.
(xvi) Neither World Omni nor the Transferor conducts business or has
affiliates who conduct business in Cuba or with the government of Cuba within
the meaning of Section 517.075 of the Florida Securities and Investors
Protection A ct or Regulation Section 3E-900.001 promulgated thereunder.
(xvii) World Omni is current in the payment of taxes to the State of
Florida and fees to the Florida Department of State and its status is "active"
and the Transferor is current in the payment of any taxes required to be paid by
it.
(xviii) Each of World Omni and the Transferor has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and to perform its obligations
under this Agreement and each Basic Document to which it is a party or by which
it may be bound.
(b) Any Officer's Certificate signed by any officer of World Omni or
the Transferor and delivered to the Agent shall be deemed a representation and
warranty of World Omni or the Transferor, as the case may be, to the Agent as to
the matters covered thereby.
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2.2 Representations, Warranties and Covenants of Agent. The Agent
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represents and warrants to the Transferor and World Omni as follows:
(a) Due Organization. The Agent has been duly incorporated and is
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validly existing as a corporation in good standing under the laws of the
State of Delaware and has power and authority to enter into and perform its
obligations under this Agreement.
(b) Authorization of this Agreement. This Agreement has been duly
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authorized, executed and delivered by the Agent.
(c) Placements. The Agent represents and agrees that it will not
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place any of the Direct Purchase Notes in any jurisdiction except under
circumstances that will result in compliance with the applicable laws
thereof.
3. Certain Agreements of the Transferor and World Omni. Each of the
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Transferor and World Omni as the case may be, jointly and severally,
covenants and agrees with the Agent that:
(a) If the Effective Time is prior to the execution and delivery of
this Agreement, the Transferor will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (2) (or, if applicable and
if consented to by the Agent, subparagraph (5)) of Rule 424(b), not later
than date required under Rule 424(b). The Transferor will advise the Agent
promptly of any such filing pursuant to Rule 424(b).
(b) The Transferor will advise the Agent promptly of any proposal to
amend or supplement the registration statement as filed or the related
prospectus or the Registration Statement or the Prospectus and will not
effect any such amendment or supplement without the consent of the Agent.
The Transferor will advise the Agent promptly of the effectiveness of the
Registration Statement (if the Effective Time is subsequent to the
execution and delivery of this Agreement), of any amendment or supplement
of the Registration Statement or the Prospectus and of the institution by
the Commission of any stop order proceedings in respect of the Registration
Statement. The Transferor will use its best efforts to prevent the issuance
of any such stop order and to obtain as soon as possible its lifting, if
issued. The Transferor will comply with the Act, the Exchange Act, the
Trust Indenture Act of 1939, as amended and the rules and regulations
contemplated thereunder so as to permit the completion of the distribution
of the Direct Purchase Notes as contemplated in this Agreement and in the
Prospectus. The Transferor will file with the Commission all documents
required to be filed pursuant to the Exchange Act within the time periods
specified in the Exchange Act or the rules and regulations promulgated
thereunder.
(c) If, at any time when a prospectus relating to the Direct Purchase
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
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if it is necessary at any time to amend or supplement the Prospectus to
comply with the Act, the Transferor promptly will prepare and file, or
cause to be prepared and filed, with the Commission an amendment or
supplement that will correct such statement or omission or effect such
compliance. Neither the consent of the Agent to, nor the delivery by the
Agent of, any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Transferor will cause the Indenture Trustee to make
generally available to the Noteholders an earnings statement with respect
to the Issuer covering a period of at least 12 months beginning after the
effective date of the Registration Statement (as defined in Rule 158 under
the Act) that will satisfy the provisions of Section 11(a) of the Act. For
the purpose of the preceding sentence, "Availability Date" means the 45th
day after the end of the fourth fiscal quarter following the fiscal quarter
that includes the effective date of the Registration Statement, except
that, if such fourth fiscal quarter is the last quarter of the fiscal year
of the Issuer, "Availability Date" means the 90th day after the end of such
fourth fiscal quarter.
(e) The Transferor will furnish to the Agent copies of the
registration statement as originally filed with the Commission and each
amendment thereto (in each case at least one of which will include all
exhibits), each related preliminary prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Agent may reasonably request.
(f) The Transferor will arrange for the qualification of the Direct
Purchase Notes for sale under the laws of such jurisdictions in the United
States as the Agent may designate and will continue such qualifications in
effect so long as required for the distribution of the Notes, provided that
neither the Transferor nor the Issuer shall be obligated to qualify to do
business nor become subject to service of process generally, but only to
the extent required for such qualification, in any jurisdiction in which it
is not currently so qualified.
(g) So long as any Direct Purchase Notes are outstanding, the
Transferor or World Omni, as the case may be, will make good faith efforts
to deliver or cause to be delivered to the Agent, as soon as practicable
after each becomes available, copies of (i) each report relating to the
Direct Purchase Notes required to be prepared under Sections 7.3 and 7.4 of
the Indenture, (ii) the annual statement as to compliance and the annual
statement of a firm of independent public accountants furnished pursuant to
Section 3.09 of the Indenture and Section 3.6 of the Sale and Servicing
Agreement, respectively, (iii) each certificate or notice delivered by the
Servicer pursuant to Sections 3.4 and 3.5 of the Sale and Servicing
Agreement and Section 5.02 of the Series Supplement, (iv) each periodic
report required to be filed by the Transferor or the Issuer with the
Commission pursuant to the Exchange Act, or any order of the Commission
thereunder and (v) such other information concerning the Transferor, World
Omni, the Issuer or the Direct Purchase Notes as the Agent may reasonably
request from time to time.
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(h) [Reserved]
(i) For a period of 45 days from the date hereof, neither the
Transferor nor World Omni or any of their respective affiliates will,
without the prior written consent of the Representative, directly or
indirectly, offer, sell or contract to sell or announce the offering of, in
a public or private transaction, any other collateralized securities
similar to the Direct Purchase Notes (it being understood that this Section
3(i) shall not apply to (a) any securities issued by a trust formed by
World Omni Auto Receivables LLC or securities backed by such securities,
(b) any securities issued by a trust formed by World Omni or an affiliate
of World Omni for the purpose of securitizing lease receivables, (c) the
Underwritten Notes and (d) renewals of or amendments to existing financing
arrangements).
(j) So long as any Direct Purchase Notes are outstanding, the
Transferor and World Omni will cause to be delivered to the Representative
a reliance letter relating to each Opinion of Counsel delivered to the
Owner Trustee, the Indenture Trustee or any Rating Agency by counsel to the
Transferor or World Omni relating to the transactions contemplated by this
Agreement or the Basic Documents.
(k) To the extent, if any, that the rating provided with respect to
any Notes by any Rating Agency is conditional upon the furnishing of
documents or the taking of any other actions by the Transferor, the Issuer
or World Omni, the Transferor, the Issuer or World Omni, as the case may
be, shall furnish such documents and take any such other actions.
4. Fee. The Transferor and World Omni agree to pay the Agent a fee
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in the amount of 0.25% of the principal amount of the Direct Purchase Notes sold
through the Agent. Such fee shall be paid from the proceeds to the Transferor
on the date of such sale.
5. Payment of Expenses. The Transferor and World Omni will pay all
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their expenses, if any, incident to the issuance of the Direct Purchase Notes
and the performance of its obligations, if any, under this Agreement.
6. Indemnification, Contribution and Limit on Liability.
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(a) Each of World Omni and the Transferor agrees, jointly and
severally, to indemnify and hold harmless the Agent and each person, if any, who
controls the Agent within the meaning of Section 15 of the Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information deemed to
be part of the Registration Statement pursuant to Rule 430A(b) of the Rules
and Regulations, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged
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omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Transferor and World Omni; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by the Agent), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any such
expense is not paid under clause (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Transferor by
the Agent expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the indemnified
parties shall be selected by the Agent. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as
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to or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(c) If the indemnification provided for in this Section 6 hereof is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) above, 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) above, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Transferor and World Omni on the one hand and the Agent on the other from
the offering of the Direct Purchase Notes, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Transferor and World Omni on the one
hand and the Agent on the other in connection with the statements or omissions
which resulted in such loss, liability, claim, damage or expense as well as any
other relevant equitable considerations. The relative benefits received by the
Transferor and World Omni on the one hand and the Agent on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Transferor bear to the placement
fees received by the Agent. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Transferor, World Omni or the Agent 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 6(c). Notwithstanding the provisions of this Section
6(c), the Agent shall not be required to contribute any amount in excess of the
amount by which the total price at which the Notes placed by it and distributed
to the public were offered to the public exceeds the amount of any damages which
the Agent 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 6(c), each person, if any, who controls the Agent within the meaning of
Section 15 of the Act shall have the same rights to contribution as the Agent
and each director of the Transferor and World Omni, each officer of the
Transferor who signed the Registration Statement and each person, if any, who
controls either the Transferor or World Omni within the meaning of Section 15 of
the Act shall have the same rights to contribution as the Transferor or World
Omni, as the case may be.
(d) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Transferor and World
Omni and of the Agent in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by any Agent or on behalf of the Agent or any person
controlling the Agent or by or on behalf of the Transferor and World Omni and
their respective directors or officers or any person controlling the Transferor
and World Omni and (iii) placement of the Direct Purchase Notes.
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7. Opinions and Accountant's Letters.
---------------------------------
The Transferor and World Omni agree that all opinions and accountant's
letters with respect to the transaction that are addressed to Merrill, as the
Representative of the Class A Notes and the Class B Underwriter, will also
include as addressee: Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
Placement Agent.
8. Notices.
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Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Transferor:
WODFI LLC
190 N.W. 12th Avenue
Deerfield Beach, Florida 33442
Attention: Patrick C. Ossenbeck, Vice President and Treasurer Telecopy
No.: (954) 429-2685
If to World Omni:
World Omni Financial Corp.
190 N.W. 12th Avenue
Deerfield Beach, Florida 33442
Attention: Patrick C. Ossenbeck, Vice President and Treasurer Telecopy
No.: (954) 429-2685
in each case with respect to the Transferor and World Omni, with a copy to:
Susan Jane Chester, Senior Counsel-Treasury
Telecopy No.: (954) 429-2298
If to the Agent:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
Attention: Manager-Asset Backed Finance Group
Telephone No.: (212) 449-0349
Telecopy No.: (212) 449-9015
9. Parties.
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This Agreement shall inure to the benefit of and be binding upon the
Agent, the Transferor and World Omni and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons referred to in Section 6
hereof and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and their
respective successors, and said controlling persons and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of the Direct Purchase Notes shall be deemed to be a successor by
reason merely of such purchase.
10. Counterparts.
------------
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
11. Termination of this Agreement.
-----------------------------
This Agreement and each Party's obligations hereunder may be terminated by
the Agent or by the Transferor and World Omni by notice thereof to the other
party at any time prior to such time as the Agent shall have arranged the
purchase by any purchaser of the Direct Purchase Notes or subsequent to such
time if any purchaser has defaulted on its obligation to purchase such Direct
Purchase Notes; provided, however, that in the event the Transferor and World
Omni does not perform any obligation under this Agreement or any representation
and warranty hereunder is incomplete or inaccurate in any respect, this
Agreement and all of the Agent's obligations hereunder may be immediately
terminated by the Agent by notice thereof to the Transferor and World Omni.
Notwithstanding any termination of or under this Agreement as provided herein,
there shall be no liability of any party to any other party, except as otherwise
provided in the Section 6 relating to the payment of fees and expenses and it
being further understood that the Sections relating to indemnification,
limitations on the liability of indemnified parties, contribution, settlements
and choice of law will survive any such termination.
12. Survival of Certain Provisions.
------------------------------
The representations, warranties, indemnities, and agreements of the
Transferor, World Omni and the Agent shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of the
Transferor, World Omni or the Agent or any affiliates or controlling person, and
shall survive the consummation of the sale of the Direct Purchase Notes.
13. Writing Required to Waive, Amend or Modify.
------------------------------------------
No waiver, amendment or other modification of this Agreement shall be
effective unless in writing and signed by each party to be bound thereby.
14. Parties.
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This Agreement incorporates the entire understanding of the parties with
respect to this engagement of the Agent by the Transferor and World Omni, and
supersedes all previous agreements regarding such engagement, should they exist.
15. Governing Law.
-------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us one of the counterparts hereof, whereupon this
Placement Agency Agreement, along with all counterparts, will become a binding
agreement between the Transferor and World Omni and the Agent in accordance with
its terms.
Very truly yours,
WODFI LLC
By: __________________________
Eric M. Gebhard
Assistant Treasurer
WORLD OMNI FINANCIAL CORP.
By: ___________________________
Eric M. Gebhard
Assistant Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: _________________________________
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