AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
BETWEEN
WORLD OMNI FINANCIAL CORP.
SELLER
AND
WODFI LLC
BUYER
DATED AS OF __________, 2000
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS..............................................................................................1
SECTION 1.1 Definitions...................................................................1
ARTICLE II
CONVEYANCE OF RECEIVABLES................................................................................1
SECTION 2.1 Conveyance of Receivables.....................................................1
SECTION 2.2 Representations and Warranties of World Omni Relating to World
Omni and this Agreement.......................................................3
SECTION 2.3 Representations and Warranties of World Omni Relating to the
Receivables...................................................................5
SECTION 2.4 Addition of Accounts..........................................................7
SECTION 2.5 Covenants of World Omni.......................................................8
SECTION 2.6 Removal of Eligible Accounts..................................................9
SECTION 2.7 Removal of Ineligible Accounts...............................................11
SECTION 2.8 Sale of Ineligible Receivables...............................................11
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES.............................................................11
SECTION 3.1 Acceptance of Appointment and Other Matters Relating to the
Servicer.....................................................................11
SECTION 3.2 Servicing Compensation.......................................................11
ARTICLE IV
RIGHTS OF SECURITYHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS...............................................................11
SECTION 4.1 Allocations and Applications of Collections and Other Funds..................11
ARTICLE V
OTHER MATTERS RELATING TO WORLD OMNI....................................................................12
SECTION 5.1 Merger or Consolidation of, or Assumption, of the Obligations of
World Omni...................................................................12
SECTION 5.2 World Omni Indemnification of WODFI..........................................12
SECTION 5.3 World Omni Acknowledgment of Transfers to the Trust..........................12
ARTICLE VI
TERMINATION.............................................................................................13
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ARTICLE VII
INTERCREDITOR PROVISIONS................................................................................13
ARTICLE VIII
MISCELLANEOUS PROVISIONS...............................................................................14
SECTION 8.1 Amendment..........................................................................14
SECTION 8.2 Protection of Right, Title and Interest to Receivables.............................15
SECTION 8.3 Limited Recourse...................................................................16
SECTION 8.4 No Petition Covenant...............................................................16
SECTION 8.5 GOVERNING LAW......................................................................16
SECTION 8.6 Notices............................................................................16
SECTION 8.7 Severability of Provisions.........................................................16
SECTION 8.8 Assignment.........................................................................16
SECTION 8.9 Further Assurances.................................................................17
SECTION 8.10 No Waiver; Cumulative Remedies....................................................17
SECTION 8.11 Counterparts......................................................................17
SECTION 8.12 Third-Party Beneficiaries.........................................................17
SECTION 8.13 Merger and Integration............................................................17
SECTION 8.14 Headings..........................................................................17
SECTION 8.15 Effect of Amendment and Restatement...............................................17
EXHIBITS
Exhibit A Form of Assignment
Exhibit B Form of Enforceability Opinion of Counsel
Exhibit C Form of Bankruptcy Opinion of Counsel
Exhibit D Form of Reassignment
SCHEDULES
Schedule 1 - List of Accounts
Schedule 2 - List of Proceedings
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THIS RECEIVABLES PURCHASE AGREEMENT was originally made as of
November 22, 1999 (the "Original Receivables Purchase Agreement"), and is
amended and restated effective as of __________, 2000, between WORLD OMNI
FINANCIAL CORP., a Florida corporation ("World Omni"), as seller, and WODFI LLC,
a Delaware limited liability company ("WODFI"), as buyer. In consideration of
the mutual agreements herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Certain capitalized terms used in
this Agreement shall have the respective meanings assigned to them in Part I of
Appendix A to the Trust Sale and Servicing Agreement. All references herein to
"the Agreement" or "this Agreement" are to the Receivables Purchase Agreement as
it may be amended and supplemented from time to time, and all references herein
to Articles, Sections and subsections are to Articles, Sections and subsections
of this Agreement unless otherwise specified. The rules of construction set
forth in Part II of Appendix A to the Trust Sale and Servicing Agreement shall
be applicable to this Agreement.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1 Conveyance of Receivables. By execution of this
Agreement, World Omni does hereby sell, transfer, assign, set over and otherwise
convey, without recourse (except as expressly provided herein), to WODFI on the
Initial Closing Date, in the case of the Initial Accounts, and on the applicable
Addition Date, in the case of Additional Accounts, all of its right, title and
interest in, to and under the Receivables in each Account and all Collateral
Security with respect thereto owned by World Omni at the close of business on
the Initial Cut-Off Date (including all interest thereon accruing after October
31, 1999, whether paid or payable), in the case of the Initial Accounts, and on
the applicable Additional Cut-Off Date, in the case of Additional Accounts, and
all monies due or to become due thereon and all amounts received with respect
thereto and all proceeds of all of the foregoing (including "proceeds" as
defined in Section 9-306 of the UCC as in effect in the State of Florida) and
Recoveries thereof. Subject to Article VI, prior to the earlier of (x) the
occurrence of an Early Amortization Event specified in Section 5.17(b), (c), (d)
or (e) of the Indenture and (y) the Trust Termination Date, as of each Business
Day on which Receivables are created in the Accounts (a "Transfer Date"), World
Omni does hereby sell, transfer, assign, set over and otherwise convey (except
as expressly provided herein) to WODFI, all of its right, title and interest in,
to and under the Receivables in each Account (other than any Receivables created
in any Removed Account from and after the applicable Removal Date) and all
Collateral Security with respect thereto owned by World Omni at the close of
business on such Transfer Date and not theretofore conveyed to WODFI, all monies
due or to become due and all amounts received with respect thereto and all
proceeds of all of the foregoing (including "proceeds" as defined in Section
9-306 of the UCC as in effect in the State of Florida) and Recoveries thereof
and, with respect to any Purchased Participation Receivables, all of its rights,
remedies, powers and privileges with respect to such Receivables
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under the applicable Participation Agreement. The foregoing sale, transfer,
assignment, set-over and conveyance and any subsequent sales, transfers,
assignments, set-overs and conveyances do not constitute, and are not intended
to result in, the creation or an assumption by WODFI of any obligation of the
Servicer, World Omni, or any other Person in connection with the Accounts, the
Receivables or any Participation Interest or under any agreement or instrument
relating thereto (including any Participation Agreement), including any
obligation to any Dealers.
In connection with such sales, World Omni agrees to record and
file, at its own expense, a financing statement on form UCC-1 or any other
applicable form (and continuation statements when applicable) naming World Omni
as "seller" and WODFI as "buyer" thereon with respect to the Receivables now
existing and hereafter created for the sale of chattel paper, general
intangibles or accounts (as defined in Sections 9-105 and 9-106 of the UCC as in
effect in any state where World Omni's or the Servicer's chief executive offices
or books and records relating to the Receivables are located) meeting the
requirements of applicable law in such manner and in such jurisdictions as are
necessary to perfect the sale and assignment of the Receivables and the
Collateral Security to WODFI, and to deliver a file-stamped copy of such
financing statements or other evidence of such filing to WODFI on or prior to
the Initial Closing Date, in the case of Initial Accounts, and (if any
additional filing is so necessary) the applicable Addition Date, in the case of
Additional Accounts. In addition, World Omni shall cause to be timely filed in
the appropriate filing office any form UCC-1 financing statement and
continuation statement necessary to perfect any sale of Receivables to WODFI.
WODFI shall be under no obligation whatsoever to file such financing statement,
or a continuation statement to such financing statement, or to make any other
filing under the UCC in connection with such sales. The parties hereto intend
that the transfers of Receivables effected by this Agreement be sales.
In connection with such sales, World Omni further agrees, at
its own expense, on or prior to the Initial Closing Date, in the case of Initial
Accounts, the applicable Addition Date, in the case of Additional Accounts, and
the applicable Removal Date, in the case of Removed Accounts, (a) to indicate in
its computer files that the Receivables created in connection with the Accounts
(other than Removed Accounts) have been sold, and the Collateral Security
assigned, to WODFI pursuant to this Agreement and sold to the Trust pursuant to
the Trust Sale and Servicing Agreement for the benefit of the Certificateholders
and pledged to the Indenture Trustee under the Indenture for the benefit of the
Noteholders and the other Beneficiaries and (b) to deliver to WODFI a computer
file or microfiche or written list containing a true and complete list of all
such Accounts (other than Removed Accounts) specifying for each such Account, as
of the Initial Cut-Off Date, in the case of Initial Accounts, and the applicable
Additional Cut-Off Date, in the case of Additional Accounts (i) its account
number and (ii) the aggregate amount of Principal Receivables in such Account.
Such file or list, as supplemented from time to time to reflect Additional
Accounts and Removed Accounts, shall be marked as Schedule 1 to this Agreement
and is hereby incorporated into and made a part of this Agreement. In addition,
in connection with such sales, World Omni shall deliver to WODFI all documents
constituting "instruments" (as defined in the UCC as in effect in the applicable
jurisdiction) with such endorsements attached as WODFI may reasonably require.
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In consideration for the sale of $758,759,633.60 of Principal
Receivables, together with the Collateral Security and interest thereon,
transferred to WODFI on the Initial Closing Date, WODFI shall pay to World Omni
$596,700,000 in cash. The remaining $162,059,633.60 of Principal Receivables,
together with the Collateral Security and interest thereon, transferred to WODFI
on the Initial Closing Date is a capital contribution to WODFI. The purchase
price for the Receivables sold by World Omni to WODFI on each Addition Date and
on each Transfer Date thereafter shall be a price agreed to by WODFI and World
Omni at the time of acquisition by WODFI, which price shall not, in the opinion
of WODFI, be materially less favorable to WODFI than prices for transactions of
a generally similar character at the time of the acquisition taking into account
the quality of such Receivables and other pertinent factors; provided that such
consideration shall in any event not be less than reasonably equivalent value
therefor. If and to the extent that WODFI shall not have funds available to pay
World Omni the purchase price for the Receivables transferred, an amount equal
to the purchase price for such Receivables shall be deemed to be a capital
contribution from World Omni to WODFI.
SECTION 2.2 Representations and Warranties of World Omni
Relating to World Omni and this Agreement. World Omni hereby represents and
warrants to WODFI as of each Closing Date that:
(a) Organization and Good Standing. World Omni is a
corporation duly organized and validly existing and in good standing under the
law of the State of Florida and has, in all material respects, full corporate
power, authority and legal right to own its properties and conduct its business
as such properties are presently owned and such business is presently conducted,
and to execute, deliver and perform its obligations under this Agreement.
(b) Due Qualification. World Omni is duly qualified to do
business and, where necessary, is in good standing as a foreign corporation (or
is exempt from such requirement) and has obtained all necessary licenses and
approvals in each jurisdiction in which the conduct of its business requires
such qualification except where the failure to so qualify or obtain licenses or
approvals would not have a material adverse effect on its ability to perform its
obligations hereunder.
(c) Due Authorization. The execution and delivery of this
Agreement and the consummation of the transactions provided for or contemplated
by this Agreement have been duly authorized by World Omni by all necessary
corporate action on the part of World Omni.
(d) No Conflict. The execution and delivery of this Agreement,
the performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof, will not conflict with, result in
any breach of any of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust, or other instrument to
which World Omni is a party or by which it or its properties are bound.
(e) No Violation. The execution and delivery of this
Agreement, the performance of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof and thereof
3
applicable to World Omni, will not conflict with or violate any material
Requirements of Law applicable to World Omni.
(f) No Proceedings. Except as disclosed on Schedule 2 hereto,
there are no proceedings or, to the best knowledge of World Omni,
investigations, pending or threatened against World Omni, before any
Governmental Authority (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement, (iii) seeking any determination or ruling that, in the
reasonable judgment of World Omni, would materially and adversely affect the
performance by World Omni of its obligations under this Agreement, (iv) seeking
any determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement or (v) seeking to affect adversely
the income tax attributes of the Trust under the United States federal or any
other applicable state, local or foreign jurisdiction's income, single business
or franchise tax systems.
(g) All Consents Required. All appraisals, authorizations,
consents, orders, approvals or other actions of any Person or of any
governmental body or official required in connection with the execution and
delivery of this Agreement, the performance of the transactions contemplated by
this Agreement, and the fulfillment of the terms hereof or thereof, have been
obtained.
(h) Enforceability. This Agreement constitutes a legal, valid
and binding obligation of World Omni enforceable against World Omni in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
in general and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity).
(i) Record of Accounts. As of the Initial Closing Date, in the
case of Initial Accounts, as of the applicable Addition Date, in the case of the
Additional Accounts, and, as of the applicable Removal Date, in the case of
Removed Accounts, Schedule 1 to this Agreement is an accurate and complete
listing in all material respects of all the Accounts as of the Initial Cut-Off
Date, the applicable Additional Cut-Off Date or the applicable Removal Date, as
the case may be, and the information contained therein with respect to the
identity of such Accounts and the Receivables existing thereunder is true and
correct in all material respects as of the Initial Cut-Off Date, such applicable
Additional Cut-Off Date or such Removal Date, as the case may be.
(j) Valid Transfer. This Agreement or, in the case of
Additional Accounts, the related Assignment constitutes a valid sale, transfer
and assignment to WODFI of all right, title and interest of World Omni in the
Receivables and the Collateral Security and the proceeds thereof. Upon the
filing of the financing statements described in Section 2.1 with the Secretary
of State of the State of Florida and, in the case of the Receivables hereafter
created and the proceeds thereof, upon the creation thereof, WODFI shall have a
first priority perfected ownership interest in such property. Except as
otherwise
4
provided in the Basic Documents, neither World Omni nor any Person claiming
through or under World Omni has any claim to or interest in the Owner Trust
Estate or the Trust Estate.
The representations and warranties set forth in this Section
2.2 shall survive the transfer and assignment of the Receivables to WODFI. Upon
discovery by World Omni or WODFI of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other party.
In the event a breach of any of the representations and
warranties set forth in this Section 2.2 results in the obligation of WODFI to
redeem the Notes pursuant to Section 2.3 of the Trust Sale and Servicing
Agreement and Section 10.1 of the Indenture, World Omni shall repurchase the
Receivables and the Collateral Security and pay to WODFI on the Business Day
preceding the date on which such redemption of Notes is to be made an amount of
cash equal to the amount WODFI is required to deposit into the applicable
Principal Funding Account pursuant to Section 2.3 of the Trust Sale and
Servicing Agreement. The obligation of World Omni to purchase the retransferred
Receivables pursuant to this Section 2.2 shall constitute the sole remedy
against World Omni respecting an event of the type specified in the first
sentence of this paragraph available to WODFI, the Trust and to the Noteholders
(or the Indenture Trustee on behalf of the Noteholders.)
SECTION 2.3 Representations and Warranties of World Omni
Relating to the Receivables.
(a) Representations and Warranties. World Omni hereby
represents and warrants to WODFI that:
(i) Each Receivable and all Collateral Security existing on
the Initial Closing Date or, in the case of Additional Account, on the
applicable Addition Date, and on each Transfer Date, has been conveyed
to WODFI free and clear of any Lien (other than the Lien held by World
Omni subject to Article VII hereof).
(ii) With respect to each Receivable and all Collateral
Security existing on the Initial Closing Date or, in the case of
Additional Accounts, on the applicable Addition Date, and on each
Transfer Date, all consents, licenses, approvals or authorizations of
or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by World Omni in connection
with the conveyance of such Receivable or Collateral Security to WODFI
have been duly obtained, effected or given and are in full force and
effect.
(iii) On the Initial Cut-Off Date and the Initial Closing
Date, each Initial Account is an Eligible Account or in the case of an
Additional Account, on the applicable Additional Cut-Off Date and
Addition Date, each Account or Additional Account is an Eligible
Account.
5
(iv) On the Initial Closing Date, in the case of the Initial
Accounts, and, in the case of the Additional Accounts, on the
applicable Additional Cut-Off Date, and on each Transfer Date, each
Receivable conveyed to WODFI on such date is an Eligible Receivable or,
if such Receivable is not an Eligible Receivable, such Receivable is
conveyed to WODFI in accordance with Section 2.8.
(v) Each Participation Agreement, if any, relating to
Receivables conveyed by World Omni permits the transfer of such
Receivables to WODFI and the Trust and provides that the undivided
interest of such participant is pari passu in all respects (other than
non-subordinated interest strips and fees) with the remaining undivided
interest in the related Receivables.
(b) Notice of Breach. The representations and warranties set
forth in this Section 2.3 shall survive the transfer and assignment of the
Receivables to WODFI. Upon discovery by World Omni or WODFI of a breach of any
of the representations and warranties set forth in this Section 2.3, the party
discovering such breach shall give prompt written notice to the other party.
(c) Repurchase. In the event any representation or warranty
under Section 2.3(a) is not true and correct as of the date specified therein
with respect to any Receivable or Account and WODFI in connection therewith, is
required to purchase such Receivable or all Receivables in such Account pursuant
to Section 2.4(c) of the Trust Sale and Servicing Agreement, then within 30 days
(or such longer period as may be agreed to by WODFI) of the earlier to occur of
the discovery of any such event by World Omni or WODFI, or receipt by World Omni
or WODFI of written notice of any such event given by the Owner Trustee the
Indenture Trustee, any Agent or Enhancement Providers, World Omni shall
repurchase such Receivable or Receivables which WODFI is required to accept
reassignment pursuant to the Trust Sale and Servicing Agreement on the Business
Day preceding the Determination Date on which such reassignment is to occur.
World Omni shall purchase each such Receivable by making a
payment to WODFI in immediately available funds on the Business Day preceding
the Payment Date on which such reassignment is to occur in an amount equal to
the Purchase Price for such Receivable. Upon payment of the Purchase Price,
WODFI shall automatically and without further action be deemed to sell,
transfer, assign, set over and otherwise convey to World Omni, without recourse,
representation or warranty, all the right, title and interest of WODFI in and to
such Receivable, all Collateral Security and all monies due or to become due
with respect thereto and all proceeds thereof. WODFI shall execute such
documents and instruments of transfer or assignment and take such other actions
as shall reasonably be requested by World Omni to effect the conveyance of such
Receivables pursuant to this Section. The obligation of World Omni to repurchase
any such Receivable shall constitute the sole remedy respecting the event giving
rise to such obligation available to WODFI, the Trust and to the Securityholders
(or the Owner Trustee on behalf of the Certificateholders or the Indenture
Trustee on behalf of the Noteholders).
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SECTION 2.4 Addition of Accounts.
(a) World Omni may from time to time offer to voluntarily
designate additional Eligible Accounts to be included as Accounts, subject to
the conditions specified in paragraph (b) below. If any such offer is accepted
by WODFI, Receivables and the related Collateral Security from such Additional
Accounts shall be sold to WODFI effective on a date (the "Addition Date")
specified in a written notice provided by World Omni (or the Servicer on its
behalf) to WODFI and any Enhancement Providers specifying the Additional Cut-Off
Date and the Addition Date for such Additional Accounts (the "Addition Notice")
on or before the fifth Business Day but not more than the 30th day prior to the
related Addition Date (the "Notice Date").
(b) World Omni shall be permitted to convey to WODFI the
Receivables and all Collateral Security related thereto in any Additional
Accounts designated by World Omni as such pursuant to Section 2.4(a) only upon
satisfaction of each of the following conditions on or prior to the related
Addition Date; provided, however, conditions (i), (vi) and (viii) below shall be
inapplicable to Accounts designated by WODFI as Automatic Additional Accounts
under Section 2.5(b) of the Trust Sale and Servicing Agreement; provided
further, that if an Additional Account contains Purchased Participation
Receivables, whether or not such Account has been designated as an Automatic
Additional Account, the Rating Agency Condition must be satisfied on or prior to
the related Addition Date:
(i) World Omni shall provide WODFI and any Enhancement
Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) World Omni shall have delivered to WODFI a duly executed
written assignment (including an acceptance by WODFI) in substantially
the form of Exhibit A (the "Assignment") and the computer file or
microfiche or written list required to be delivered pursuant to Section
2.1.
(iv) World Omni shall have delivered to WODFI for deposit in
the Collection Account all Collections with respect to such Additional
Accounts since the Additional Cut-Off Date.
(v) (A) No selection procedures believed by World Omni to be
adverse to the interests of WODFI or the Beneficiaries were used in
selecting such Additional Accounts; (B) the list of Additional Accounts
delivered pursuant to clause (iii) above is true and correct in all
material respects as of the Additional Cut-Off Date and (C) as of each
of the Notice Date and the Addition Date, neither World Omni, WODFI nor
the Servicer are insolvent nor will have been made insolvent by such
transfer nor are aware of any pending insolvency.
(vi) The Rating Agency Condition shall have been satisfied
with respect to such addition.
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(vii) The addition of the Receivables arising in such
Additional Accounts shall not result in the occurrence of an Early
Amortization Event or Investment Event.
(viii) World Omni shall have delivered to WODFI and any
Enhancement Providers a certificate of an Executive Officer confirming
the items set forth in paragraphs (ii) through (vii) above.
(ix) On or before each Addition Date, World Omni shall deliver
to WODFI and any Enhancement Providers an Opinion of Counsel for World
Omni with respect to the Receivables in the Additional Accounts
substantially in the form of Exhibit C.
With respect to Automatic Additional Accounts, World Omni
shall deliver to WODFI and any Enhancement Providers an Opinion of Counsel for
the same time periods as the Transferor is required to deliver under Section
2.5(b) of the Trust Sale and Servicing Agreement.
(c) World Omni hereby represents and warrants as of the
applicable Addition Date as to the matters set forth in Section 2.4(b)(v) and
(vii). The representations and warranties set forth in Section 2.4(b)(v) shall
survive the sale and assignment of the respective Receivables and the related
Collateral Security to WODFI. Upon discovery by World Omni or WODFI of a breach
of any of the foregoing representations and warranties, the party discovering
the breach shall give prompt written notice to the other party and to any
Enhancement Providers.
SECTION 2.5 Covenants of World Omni. World Omni hereby
covenants that:
(a) No Liens. Except for the conveyances hereunder and under
the other Basic Documents and the conveyance of Participation Interests pursuant
to the terms of any Participation Agreements, World Omni will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume or
suffer to exist any Lien on, any Receivable or any Collateral Security, whether
now existing or hereafter created, or any interest therein other than a Note or
Certificate (other than the Lien held by World Omni subject to Article VII
hereof) and World Omni shall defend the right, title and interest of WODFI and
the Trust in, to and under the Receivables and the Collateral Security, whether
now existing or hereafter created, against all claims of third parties claiming
through or under World Omni.
(b) Floorplan Financing Agreements, Asset Based Lending
Financing Agreements and Guidelines. World Omni shall comply with and perform
its servicing obligations with respect to the Accounts and Receivables in
accordance with the applicable Floorplan Financing Agreements or Asset Based
Lending Financing Agreements relating to the Accounts and the applicable
Floorplan Financing Guidelines, except insofar as any failure to so comply or
perform would not materially and adversely affect the rights of WODFI, the Trust
the Certificateholders, the Noteholders or any Enhancement Providers. Subject to
compliance with all Requirements of Law, World Omni, in its capacity of
Servicer, may change the terms and provisions of the Floorplan Financing
Agreement, the Asset Based Lending Financing Agreements or the Floorplan
Financing Guidelines in any respect (including the calculation of the amount
8
or the timing of charge-offs and the rate of the finance charge assessed
thereon) only if such change would be permitted pursuant to Section 3.1(d) of
the Trust Sale and Servicing Agreement.
(c) Account Allocations. In the event that World Omni is
unable for any reason to transfer Receivables to WODFI, then World Omni agrees
that it shall allocate, after the occurrence of such event, payments on each
Account with respect to the principal balance of such Account first to the
oldest principal balance of such Account and to have such payments applied as
Collections in accordance with the terms of the Trust Sale and Servicing
Agreement. The parties hereto agree that Non-Principal Receivables, whenever
created, accrued in respect of Principal Receivables which have been conveyed to
WODFI and by WODFI to the Trust shall continue to be a part of the Trust
notwithstanding any cessation of the transfer of additional Principal
Receivables to WODFI and Collections with respect thereto shall continue to be
allocated and paid in accordance with Section 8.2 of the Indenture.
(d) Delivery of Collections. In the event that World Omni
receives Collections, World Omni agrees to pay the Servicer or any Successor
Servicer all payments received by World Omni in respect of the Receivables as
soon as practicable after receipt thereof by World Omni, but in no event later
than two Business Days after the receipt by World Omni thereof.
(e) Notice of Liens. World Omni shall notify in writing WODFI,
the Owner Trustee and the Indenture Trustee promptly after becoming aware of any
Lien on any Receivable other than the conveyances hereunder or under the Trust
Sale and Servicing Agreement, the Indenture or any Participation Agreement.
(f) Compliance with Law. World Omni hereby agrees to comply in
all material respects with all Requirements of Law applicable to World Omni.
SECTION 2.6 Removal of Eligible Accounts.
(a) On each Determination Date on which Accounts, including
all amounts then held by the Trust or thereafter received by the Trust with
respect to such Accounts, are removed from the Trust pursuant to Section 2.7 of
the Trust Sale and Servicing Agreement, WODFI shall be deemed to have offered to
World Omni automatically and without notice to or action by or on behalf of
WODFI, the right to remove Eligible Accounts from the operation of this
Agreement in the manner prescribed in Section 2.6(b).
(b) To accept such offer and remove Accounts, including all
amounts then held by the Trust or thereafter received by the Trust with respect
to such Accounts, World Omni (or the Servicer on its behalf) shall take the
following actions and make the following determinations:
(i) not less than five Business Days prior to the Removal
Commencement Date, furnish to WODFI, the Owner Trustee, the Indenture
Trustee, any Enhancement Providers and the Rating Agencies a written
notice (the "Removal Notice") specifying the Determination Date (which
may
9
be the Determination Date on which such notice is given) on which
removal of the Receivables of one or more Accounts (the "Designated
Accounts") will commence (a "Removal Commencement Date");
(ii) determine on the Removal Commencement Date the aggregate
principal balance of Receivables in respect of each Designated Account
(the "Designated Balance");
(iii) from and after such Removal Commencement Date, cease to
transfer to WODFI any and all Receivables arising in such Designated
Accounts;
(iv) from and after the Removal Commencement Date, allocate
all Principal Collections in respect of each Designated Account, first
to the oldest outstanding principal balance of the Designated Account,
until the Determination Date on which the Designated Balance in the
Designated Account is reduced to zero (the "Removal Date");
(v) on each business day from and after the Removal
Commencement Date to and until the related Removal Date, allocate (A)
to the Trust (to be further allocated pursuant to the Trust Sale and
Servicing Agreement), Non-Principal Collections in respect of each
Designated Account for Receivables in all Designated Accounts
transferred to the Trust and (B) to the Transferor the remainder of the
Non-Principal Collections in the Designated Accounts;
(vi) represent and warrant that the removal of any Eligible
Account on any Removal Date shall not, in the reasonable belief of
World Omni, cause an Early Amortization Event or Investment Event to
occur or cause the Pool Balance to be less than the Required Pool
Balance;
(vii) represent and warrant that no selection procedures
believed by World Omni to be adverse to the interests of the
Certificateholders, the Noteholders or any Enhancement Providers were
utilized in selecting the Accounts to be removed;
(viii) represent and warrant that the removal will not result
in a reduction or withdrawal of the rating of any outstanding Series or
class of Notes; and
(ix) on or before the related Removal Date, deliver to the
Indenture Trustee and any Enhancement Provider an Officer's Certificate
confirming the items set forth in clauses (vi), (vii) and (viii) above.
(c) Subject to Section 2.6(b), and upon the satisfaction of
the conditions therein, on the Removal Date with respect to any such Designated
Accounts, such Designated Accounts shall be deemed removed by operation of this
Agreement for all purposes (a "Removed Account"). After the Removal Date and
upon the written request of the Servicer, WODFI shall deliver to World Omni a
reassignment in substantially the form of Exhibit D (the "Reassignment").
10
SECTION 2.7 Removal of Ineligible Accounts. On any date on
which an Account becomes an Ineligible Account (which date will be deemed the
Removal Commencement Date for such Account), the Transferor will commence the
removal of the Account from the Trust by taking each of the actions specified in
clauses (i) through (ix) of Section 2.6(b) for the Ineligible Account.
SECTION 2.8 Sale of Ineligible Receivables. World Omni shall
sell to WODFI on each Transfer Date any and all Receivables arising in any
Eligible Accounts that are Ineligible Receivables, provided that on the Initial
Cut-Off Date or, in the case of Receivables arising in Additional Accounts, on
the related Additional Cut-Off Date, and on the applicable Transfer Date, the
Account in which such Receivables arise is an Eligible Account.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.1 Acceptance of Appointment and Other Matters
Relating to the Servicer.
(a) World Omni agrees to act as the Servicer under this
Agreement and the Trust Sale and Servicing Agreement, and WODFI consents to
World Omni acting as the Servicer. World Omni will have ultimate responsibility
for servicing, managing and making collections on the Receivables and will have
the authority to make any management decisions relating to such Receivables, to
the extent such authority is granted to the Servicer under the Basic Documents.
(b) The Servicer shall service and administer the Receivables
in accordance with the provisions of the Basic Documents.
SECTION 3.2 Servicing Compensation. As full compensation for
its servicing activities hereunder and under the Trust Sale and Servicing
Agreement, the Servicer shall be entitled to receive the Servicing Fee on each
Payment Date. The Servicing Fee shall be paid in accordance with the terms of
the Trust Sale and Servicing Agreement.
ARTICLE IV
RIGHTS OF SECURITYHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 4.1 Allocations and Applications of Collections and
Other Funds. The Servicer will apply all Collections with respect to the
Receivables and all funds on deposit in the Collection Account as described in
Article IV of the Trust Sale and Servicing Agreement and Article VIII of the
Indenture.
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ARTICLE V
OTHER MATTERS RELATING TO WORLD OMNI
SECTION 5.1 Merger or Consolidation of, or Assumption, of the
Obligations of World Omni. World Omni shall not consolidate with or merge into
any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(a) the corporation formed by such consolidation or into which
World Omni is merged or the Person which acquires by conveyance or transfer the
properties and assets of World Omni substantially as an entirety shall be a
corporation organized and existing under the laws of the United States of
America or any State or the District of Columbia and, if World Omni is not the
surviving entity, such corporation shall assume, without the execution or filing
of any paper or any further act on the part of any of the parties hereto, the
performance of every covenant and obligation of World Omni hereunder; and
(b) World Omni has delivered to WODFI, the Owner Trustee and
the Indenture Trustee an Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, merger, conveyance or transfer comply with this
Section 5.1 and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 5.2 World Omni Indemnification of WODFI. World Omni
shall, out of its own funds, indemnify and hold harmless WODFI, from and against
any loss, liability, expense, claim, damage or injury suffered or sustained by
reason of any acts, omissions or alleged acts or omissions arising out of
activities of World Omni pursuant to this Agreement arising out of or based on
the arrangement created by this Agreement and the activities of World Omni taken
pursuant thereto, including any judgment, award, settlement, reasonable
attorneys' fees and other costs or expenses incurred in connection with the
defense of any actual or threatened action, proceeding or claim; provided,
however, that World Omni shall not indemnify WODFI if such acts, omissions or
alleged acts or omissions constitute fraud, gross negligence or wilful
misconduct by WODFI; and provided further, that World Omni shall not indemnify
WODFI for any liabilities, cost or expense of WODFI with respect to any federal,
state or local income or franchise taxes (or any interest or penalties with
respect thereto) required to be paid by WODFI in connection herewith to any
taxing authority. Any indemnification under this Section 5.2 shall survive the
termination of the Agreement.
SECTION 5.3 World Omni Acknowledgment of Transfers to the
Trust. By its execution of the Trust Sale and Servicing Agreement, World Omni
acknowledges that WODFI shall, pursuant to the Trust Sale and Servicing
Agreement, transfer the Receivables purchased hereunder and the Collateral
Security to the Trust and assign its rights associated therewith under this
Agreement to the Trust, subject to the terms and conditions of the Trust Sale
and Servicing Agreement, and that the Trust shall in turn further pledge, assign
or transfer its rights in such property and this Agreement to the Indenture
Trustee under the Indenture.
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ARTICLE VI
TERMINATION
This Agreement will terminate immediately after the Trust
terminates pursuant to the Trust Agreement. In addition, WODFI shall not
purchase Receivables nor shall World Omni designate Additional Accounts if World
Omni shall become an involuntary party to (or be made the subject of) any
proceeding provided for by any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to World Omni or
relating to all or substantially all of its property (an "Involuntary Case") and
such Involuntary Case shall have continued for a period of twenty Business Days
from and including the day of receipt by World Omni at its principal corporate
office of notice of such Involuntary Case; provided that during such twenty
Business Day period, WODFI shall suspend its purchase of Receivables and shall
hold all Collections of Principal Receivables that would have been available to
purchase Receivables in the Collection Account and (a) if by the first Business
Day after such twenty Business Day period, neither World Omni nor WODFI has
obtained an order from the court having jurisdiction of such case or filing
which order approves the continuation of the sale of Receivables by World Omni
to WODFI and which provides that WODFI and any of its transferees (including the
Owner Trustee and the Indenture Trustee) may conclusively rely on such order for
the validity and nonavoidance of such transfer (the "Order"), WODFI shall hold
such Collections in the Collection Account until such time as they may be paid
as elsewhere provided herein and shall not purchase Receivables thereafter, or
(b) if by such first Business Day, World Omni or WODFI has obtained such Order,
World Omni may continue selling Receivables, and WODFI may continue purchasing
Receivables, pursuant to the terms hereof, as modified by the immediately
succeeding sentence. During the period after the twenty Business Day period
described above and before the end of the 60-day period described below, the
purchase price of the Receivables transferred during such period,
notwithstanding anything in this Agreement to the contrary, shall be paid to
World Omni by WODFI in cash not later than the same Business Day of any sale of
Receivables. During such period, Receivables will be considered transferred to
WODFI only to the extent that the purchase price therefor has been paid in cash
on the same Business Day. If an Order is obtained but subsequently is reversed
or rescinded or expires, World Omni shall immediately cease selling Receivables
to WODFI, and WODFI shall immediately cease buying Receivables. World Omni shall
give prompt written notice to each of WODFI, the Owner Trustee and the Indenture
Trustee immediately upon becoming a party to an Involuntary Case. If by the
first Business Day after the 60-day period after such involuntary filing, such
Involuntary Case has not been dismissed, WODFI shall not purchase thereafter
Receivables or designated Additional Accounts for transfer to the Issuer.
ARTICLE VII
INTERCREDITOR PROVISIONS
With respect to a Dealer which is the obligor under
Receivables that have been or will be sold to WODFI hereunder, World Omni may be
or become a lender to such Dealer under an agreement or arrangement (a
"Nonfloorplan Agreement") other than a Floorplan Financing Agreement or Asset
Based Lending Financing Agreement pursuant to which World Omni has been granted
a security interest in the same collateral (the "Common Collateral") in which
the Floorplan Financing Agreement or Asset Based
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Lending Financing Agreement for such Dealer creates a security interest, which
Common Collateral may include the same Vehicle (the "Common Vehicle Collateral")
in which such Floorplan Financing Agreement or Asset Based Lending Financing
Agreement creates a security interest. The Common Collateral other than the
related Common Vehicle Collateral is referred to herein as the "Common
Non-Vehicle Collateral." World Omni agrees that with respect to each Receivable
of each such Dealer (i) the security interest in such Common Vehicle Collateral
granted to World Omni pursuant to any Nonfloorplan Agreement is junior and
subordinate to the security interest created by the related Floorplan Financing
Agreement or Asset Based Lending Financing Agreement, (ii) World Omni has no
legal right to realize upon such Common Vehicle Collateral or exercise its
rights under the Nonfloorplan Agreement in any manner that is materially adverse
to WODFI, the Trust, the Certificateholders or the Noteholders in respect of the
Common Vehicle Collateral until all required payments in respect of such
Receivable under the Floorplan Financing Agreement or Asset Based Lending
Financing Agreement have been paid, and (iii) in realizing upon such Common
Vehicle Collateral, neither WODFI nor the Trust shall have any obligation to
protect or preserve the rights of World Omni in such Common Vehicle Collateral.
WODFI agrees that with respect to each Receivable of each such Dealer (a) the
security interest in such Common Non-Vehicle Collateral created by the Floorplan
Financing Agreement or the Asset Based Lending Financing Agreement and hereby
assigned to WODFI is junior and subordinate to the security interest therein
created by the Nonfloorplan Agreement, (b) WODFI has no legal right to realize
upon such Common Non-Vehicle Collateral or exercise its rights under the
Floorplan Financing Agreement or the Asset Based Lending Financing Agreement in
any manner that is materially adverse to World Omni until all required payments
in respect of the obligation created or secured by the Nonfloorplan Agreement
have been made, and (c) in realizing on such Common Non-Vehicle Collateral,
World Omni shall not be obligated to protect or preserve the rights of WODFI or
the Trust in such Common Non-Vehicle Collateral. The Trust Sale and Servicing
Agreement and the Indenture shall provide that the Trust and the Indenture
Trustee on behalf of the Noteholders is subject to the preceding sentence. If
World Omni in any manner assigns or transfers any rights under, or any
obligation evidenced or secured by, a Nonfloorplan Agreement, World Omni shall
make such assignment or transfer subject to the provisions of this Article VII
and shall require such assignee or transferee to acknowledge that it takes such
assignment or transfer subject to the provisions of this Article VII and to
agree that it will require the same acknowledgment from any subsequent assignee
or transferee.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 Amendment. Subject to Article VIII of the Trust
Agreement, this Agreement may be amended from time to time (with prior written
notice to the Rating Agencies and the Indenture Trustee) by a written amendment
duly executed and delivered by World Omni and WODFI.
14
SECTION 8.2 Protection of Right, Title and Interest to
Receivables.
(a) World Omni shall cause this Agreement, all amendments
hereto and/or all financing statements and continuation statements and any other
necessary documents covering WODFI's right, title and interest to the
Receivables and Collateral Security (other than the Lien held by World Omni
subject to Article VII hereof) relating thereto to be promptly recorded,
registered and filed, and at all times to be kept recorded, registered and
filed, all in such manner and in such places as may be required by law fully to
preserve and protect the right, title and interest of WODFI hereunder. World
Omni shall deliver to WODFI file-stamped copies of, or filing receipts for, any
document recorded, registered or filed as provided above, as soon as available
following such recording, registration or filing. WODFI shall cooperate fully
with World Omni in connection with the obligations set forth above and will
execute any and all documents reasonably required to fulfill the intent of this
Section 8.2(a).
(b) Within 30 days after World Omni makes any change in its
name, identity or corporate structure which would make any financing statement
or continuation statement filed in accordance with Section 8.2(a) seriously
misleading within the meaning of Section 9-402(7) of the UCC as in effect in the
State of Florida (or, if applicable, the corresponding Section of the UCC as may
be in effect in such other jurisdiction where World Omni's principal executive
offices or books or records relating to the Receivables are located), World Omni
shall give WODFI and any Agent notice of any such change and shall file such
financing statements or amendments as may be necessary to continue the
perfection of WODFI's security interest in the Receivables and the proceeds
thereof.
(c) World Omni will give WODFI prompt written notice of any
relocation of any office at which it keeps records concerning the Receivables or
of its principal executive office and whether, as a result of such relocation,
the applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement and shall file such financing statements or amendments as
may be necessary to perfect or to continue the perfection of WODFI's security
interest in the Receivables and the proceeds thereof. World Omni will at all
times maintain its principal executive offices within the United States of
America.
(d) World Omni will deliver to WODFI:
(i) upon the execution and delivery of each amendment of this
Agreement, an Opinion of Counsel to the effect specified in Exhibit B;
(ii) on each Addition Date on which any Additional Accounts
are to be included as the Accounts pursuant to Section 2.4 hereof, an
Opinion of Counsel as specified in Section 2.4; provided, however, that
no such Opinion of Counsel shall be necessary in the case of Automatic
Additional Accounts as contemplated in Section 2.5 of the Trust Sale
and Servicing Agreement; and
15
(iii) on or before April 30 of each year, beginning with April
30, 2000, an Opinion of Counsel dated as of a date during such
four-month period, substantially in the form of Exhibit C.
SECTION 8.3 Limited Recourse. Notwithstanding anything to the
contrary contained herein, the obligations of WODFI hereunder shall not be
recourse to WODFI (or any person or organization acting on behalf of WODFI or
any affiliate, officer or director of WODFI), other than to any assets of WODFI
not pledged to third parties or otherwise encumbered in a manner permitted by
WODFI's Limited Liability Company Agreement; provided, however, that any payment
by WODFI made in accordance with this Section 8.3 shall be made only after
payment in full of any amounts that World Omni is obligated to deposit in the
Collection Account pursuant to this Agreement; provided further that the
Noteholders shall be entitled to the benefits of the subordination of the
Collections allocable to the Certificates to the extent provided in the Series
Supplement.
SECTION 8.4 No Petition Covenant. World Omni hereby covenants
and agrees that it will not at any time institute against WODFI any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law.
SECTION 8.5 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 8.6 Notices. All demands, notices and communications
hereunder shall be in writing and shall be delivered as specified in Appendix B
to the Trust Sale and Servicing Agreement.
SECTION 8.7 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed enforceable to the fullest extent permitted, and if not
so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of the
Notes or rights of the Noteholders.
SECTION 8.8 Assignment. Notwithstanding anything to the
contrary contained herein, this Agreement may not be assigned by World Omni
without the prior consent of WODFI and the Trust. WODFI may assign its rights,
remedies, powers and privileges under this Agreement to the Trust pursuant to
the Trust Sale and Servicing Agreement which may be assigned to the Indenture
Trustee pursuant to the Indenture.
16
SECTION 8.9 Further Assurances. World Omni agrees to do and
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by WODFI more fully to effect the
purposes of this Agreement, including the execution of any financing statements
or continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
SECTION 8.10 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of WODFI, any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
under this Agreement preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
SECTION 8.11 Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
SECTION 8.12 Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto, the Trust, the
Owner Trustee, the Indenture Trustee, the Securityholders, the Enhancement
Providers and their respective successors and permitted assigns. Except as
otherwise provided in this Agreement, no other Person will have any right or
obligation hereunder.
SECTION 8.13 Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 8.14 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 8.15 Effect of Amendment and Restatement. It is the
intent of the parties hereto that this Receivables Purchase Agreement, as
amended and restated as of __________, 2000, shall as of such date, replace in
its entirety the Original Receivables Purchase Agreement; provided that, with
respect to the period of time from November 22, 1999 through __________, 2000,
the rights and obligations of the parties shall be governed by the Original
Receivables Purchase Agreement; provided further, that the amendment and
restatement of the Original Receivables Purchase Agreement shall not effect any
of the grants, transfers or conveyances contemplated by the Original Receivables
Purchase Agreement to have occurred prior to __________, 2000.
* * * *
17
IN WITNESS WHEREOF, World Omni and WODFI have caused this Amended and
Restated Receivables Purchase Agreement to be duly executed by their respective
officers as of the day and year first above written.
WORLD OMNI FINANCIAL CORP.,
Seller
By___________________________________
Name: Eric M. Gebhard
Title: Assistant Secretary
WODFI LLC,
Buyer
By___________________________________
Name: Eric M. Gebhard
Title: Assistant Secretary
Schedule 1
----------
List of Accounts
Schedule 2
----------
List of Proceedings
As part of its regular examination process of the consolidated federal
income tax returns of JM Family Enterprises and its subsidiaries (including
World Omni) for certain prior years, the IRS has reviewed, among other things,
transactions that were consummated between 1990 and 1994 relating to retail
lease contracts and not to wholesale floorplan receivables. The IRS has proposed
treating the lease transactions as sales rather than financings for federal
income tax purposes, which would affect World Omni's depreciation deductions. It
has also proposed treating the origination trust and each securitization trust
created for those transactions as an association taxable as a corporation rather
than a trust for federal income tax purposes. In connection with each
transaction, World Omni received an opinion of tax counsel to the effect that
these transactions were properly treated as financings for federal income tax
purposes and that neither the origination trust nor the relevant securitization
would be treated as an association taxable as a corporation for federal income
tax purposes. While management believes that a challenge by the IRS would be
unsuccessful, we cannot assure you of this result. The IRS has also proposed
changes to a number of other positions that were taken on the tax returns it is
examining.
Management is vigorously defending its positions and believes that the
ultimate resolution of all of the issues will not have a material adverse effect
on securityholders, JM Family Enterprises' or World Omni's operations and
financial condition or the financial condition of the Trust. However, if the IRS
were to prevail on certain of these issues, it could have a material adverse
effect on JM Family Enterprises' or World Omni's operations and financial
condition or the financial condition of the Trust. Nevertheless, management
believes that, even if the IRS were to prevail on all of these issues it would
not result in any material impairment of World Omni's ability to perform its
obligations and its duties as Servicer under the Basic Documents. Management
cannot, however, assure you of this result.
The IRS recently began a routine examination of World Omni's 1995-1997
tax returns. World Omni expects that this examination may include a review of
the 1996 transaction in which World Omni's dealer receivables were securitized.
EXHIBIT A
TO RPA
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.4(b)(iii) of the Receivables Purchase Agreement)
ASSIGNMENT No. ___ OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of
___________, among WODFI LLC ("WODFI"), as buyer, and WORLD OMNI FINANCIAL CORP.
("World Omni"), as seller, pursuant to the Receivables Purchase Agreement
referred to below.
W I T N E S S E T H :
WHEREAS, World Omni and WODFI are parties to an Amended and Restated
Receivables Purchase Agreement dated as of ___________, 2000 (as amended or
supplemented, the "Receivables Purchase Agreement"):
WHEREAS, pursuant to the Receivables Purchase Agreement, World Omni
wishes to designate Additional Accounts to be included as Accounts and to convey
the Receivables and Collateral Security of such Additional Accounts, whether now
existing or hereafter created, to WODFI as part of the corpus of the Trust (as
each such term is defined in the Receivables Purchase Agreement); and
WHEREAS WODFI is willing to accept such designation and conveyance
subject to the terms and conditions hereof;
NOW, THEREFORE, World Omni and WODFI hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have
the meanings ascribed to them in Appendix A of the Trust Sale and Servicing
Agreement (as amended or Supplemented, the "Trust Sale and Servicing Agreement")
unless otherwise defined herein. "Addition Date" shall mean, with respect to the
Additional Accounts designated hereby, __________, _____.
2. Designation of Additional Accounts. World Omni hereby
delivers herewith a computer file or microfiche or written list containing a
true and complete list of all such Additional Accounts specifying for each such
Account, as of the Additional Cut-Off Date, its account number, the aggregate
amount of Receivables outstanding in such Account and the aggregate amount of
Principal Receivables in such Account. Such file or list shall, as of the date
of this Assignment, supplement Schedule 1 to the Receivables Purchase Agreement.
A-1
3. Conveyance of Receivables.
a. World Omni does hereby sell, transfer, assign, set over and
otherwise convey, without recourse (except as expressly provided in the
Receivables Purchase Agreement), to WODFI, on the Addition Date all of its
right, title and interest in, to and under the Receivables in such Additional
Accounts and all Collateral Security with respect thereto, owned by World Omni
and existing at the close of business on the Additional Cut-Off Date and
thereafter created from time to time, all monies due or to become due and all
amounts received with respect thereto and all proceeds (including "proceeds" as
defined in Section 9-306 of the UCC as in effect in the State of Florida) and
Recoveries thereof. The foregoing sale, transfer, assignment, set-over and
conveyance does not constitute and is not intended to result in the creation or
an assumption by WODFI of any obligation of the Servicer, World Omni or any
other Person in connection with the Accounts, the Receivables or any
Participation Interest or under any agreement or instrument relating thereto
(including any Participation Agreement), including any obligation to any
Dealers.
b. In connection with such sale, World Omni agrees to record
and file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) with respect to the Receivables now
existing and hereafter created for the sale of chattel paper, general
intangibles or accounts (as defined in Sections 9-105 and 9-106 of the UCC as in
effect in any state where World Omni's or the Servicer's chief executive offices
or books and records relating to the Receivables are located) meeting the
requirements of applicable state law in such manner and in such jurisdictions as
are necessary to perfect the sale and assignment of the Receivables and the
Collateral Security to WODFI, and to deliver a file-stamped copy of such
financing statements or other evidence of such filing to WODFI on or prior to
the Addition Date. In addition, World Omni shall cause to be timely filed in the
appropriate filing office any form UCC-1 financing statement and continuation
statement necessary to perfect any sale of Receivables to World Omni. WODFI
shall be under no obligation whatsoever to file such financing statement, or a
continuation statement to such financing statement, or to make any other filing
under the UCC in connection with such sale. The parties hereto intend that the
sales of Receivables effected by this Agreement be sales.
c. In connection with such sale, World Omni further agrees, at
its own expense, on or prior to the Addition Date, to indicate in its computer
files that the Receivables created in connection with the Additional Accounts
designated hereby have been sold and the Collateral Security assigned to WODFI
pursuant to this Assignment and sold to the Trust pursuant to the Trust Sale and
Servicing Agreement for the benefit of the Noteholders, the Certificateholders
and any Enhancement Providers. In addition, in connection with such sales, World
Omni shall deliver within 10 days after the Addition Date to WODFI all documents
constituting "instruments" (as defined in the UCC as in effect in the applicable
jurisdiction) with such endorsements attached as WODFI may reasonably require.
A-2
4. Acceptance by WODFI. Subject to the satisfaction of the
conditions set forth in Section 6 of this Assignment, WODFI hereby acknowledges
its acceptance of all right, title and interest to the property, now existing
and hereafter created, conveyed to WODFI pursuant to Section 3(a) of this
Assignment. WODFI further acknowledges that, prior to or simultaneously with the
execution and delivery of this Assignment, World Omni delivered to WODFI the
computer file or microfiche or written list relating to the Additional Accounts
described in Section 2 of this Assignment.
5. Representations and Warranties of World Omni. World Omni
hereby represents and warrants to WODFI, on behalf of the Trust, as of the date
of this Assignment and as of the Addition Date that:
a. Legal, Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of World Omni, enforceable
against World Omni in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting creditors' rights in
general and except as such enforceability may be limited by general principles
of equity (whether considered in a suit at law or in equity);
b. Organization and Good Standing. World Omni is a corporation
duly organized and validly existing and in good standing under the law of the
State of Florida and has, in all material respects, full corporate power,
authority and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Assignment;
c. Due Qualification. World Omni is duly qualified to do
business and, where necessary, is in good standing as a foreign corporation (or
is exempt from such requirement) and has obtained all necessary licenses and
approvals in each jurisdiction in which the conduct of its business requires
such qualification except where the failure to so qualify or obtain licenses or
approvals would not have a material adverse effect on its ability to perform its
obligations hereunder;
d. Eligible Accounts. Each Additional Account designated
hereby is an Eligible Account;
e. Selection Procedures. No selection procedures believed by
World Omni to be adverse to the interests of the Noteholders, the
Certificateholders or any Enhancement Providers were utilized in selecting the
Additional Accounts designated hereby;
f. Insolvency. As of the Notice Date and the Addition Date,
World Omni is not insolvent nor, after giving effect to the conveyance set forth
in Section 3 of this Assignment, will it have been made insolvent, nor is it
aware of any pending insolvency;
A-3
g. Valid Transfer. This Assignment constitutes a valid sale,
transfer and assignment to WODFI of all right, title and interest of World Omni
in the Receivables and the related Collateral Security and the proceeds thereof
and upon the filing of the financing statements described in Section 3 of this
Assignment with the Secretary of State of the State of Florida and other
applicable states and, in the case of the Receivables and the related Collateral
Security hereafter created and the proceeds thereof, upon the creation thereof,
WODFI shall have a first priority perfected ownership interest in such property;
h. Due Authorization. The execution and delivery of this
Assignment and the consummation of the transactions provided for or contemplated
by this Assignment have been duly authorized by World Omni by all necessary
corporate action on the part of World Omni;
i. No Conflict. The execution and delivery of this Assignment,
the performance of the transactions contemplated by this Assignment and the
fulfillment of the terms hereof, will not conflict with, result in any breach of
any of the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust, or other instrument to which World
Omni is a party or by which it or its properties are bound;
j. No Violation. The execution and delivery of this Assignment
by World Omni, the performance of the transactions contemplated by this
Assignment and the fulfillment of the terms hereof will not conflict with or
violate any material Requirements of Law applicable to World Omni;
k. No Proceedings. Except as described in Schedule 2 hereto,
there are no proceedings or, to the best knowledge of World Omni, investigations
pending or threatened against World Omni before any Governmental Authority (i)
asserting the invalidity of this Assignment, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Assignment, (iii)
seeking any determination or ruling that, in the reasonable judgment of World
Omni, would materially and adversely affect the performance by World Omni of its
obligations under this Assignment, (iv) seeking any determination or ruling that
would materially and adversely affect the validity or enforceability of this
Assignment or (v) seeking to affect adversely the income tax attributes of the
Trust under the United States federal or any State income, single business or
franchise tax systems;
l. Record of Accounts. As of the Addition Date, Schedule 1 to
this Assignment is an accurate and complete listing in all material respects of
all the Additional Accounts as of the Additional Cut-Off Date and the
information contained therein with respect to the identity of such Accounts and
the Receivables existing thereunder is true and correct in all material respects
as of the Additional Cut-Off Date;
m. No Liens. Each Receivable and all Collateral Security
existing on the Addition Date has been conveyed to WODFI free and clear of any
Lien;
n. All Consents Required. With respect to each Receivable and
all Collateral Security existing on the Addition Date, all material consents,
licenses, approvals or authorizations of or registrations
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or declarations with any Governmental Authority required to be obtained,
effected or given by World Omni in connection with the conveyance of such
Receivable or Collateral Security to the Trust, the execution and delivery of
this Assignment and the performance of the transactions contemplated hereby have
been duly obtained, effected or given and are in full force and effect; and
o. Eligible Receivables. On the Additional Cut-Off Date, each
Receivable conveyed to the Trust as of such date is an Eligible Receivable or,
if such Receivable is not an Eligible Receivable, such Receivable is conveyed to
WODFI in accordance with Section 2.8 of the Receivables Purchase Agreement.
6. Conditions Precedent. The acceptance of WODFI set forth in
Section 4 of this Assignment is subject to the satisfaction, on or prior to the
Addition Date, of the following conditions precedent:
a. Representations and Warranties. Each of the representations
and warranties made by World Omni in Section 5 of this Assignment shall be true
and correct as of the date of this Assignment and as of the Addition Date;
b. Agreement. Each of the conditions set forth in Section
2.4(b) of the Receivables Purchase Agreement (other than Sections 2.4(b)(vi),
(viii) and (ix) in the case of Automatic Additional Accounts designated by World
Omni pursuant to Section 2.5(b) of the Trust Sale and Servicing Agreement)
applicable to the designation of the Additional Accounts to be designated hereby
shall have been satisfied; and
c. Addition Information. World Omni shall have delivered to
WODFI such information as was reasonably requested by WODFI to satisfy itself as
to the accuracy of the representation and warranty set forth in Section 5(d) of
this Assignment.
7. Ratification of Agreement. As supplemented by this
Assignment, the Receivables Purchase Agreement is in all respects ratified and
confirmed and the Receivables Purchase Agreement as so supplemented by this
Assignment shall be read, taken and construed as one and the same instrument.
8. Counterparts. This Assignment may be executed in two or
more counterparts (and by different parties in separate counterparts),each of
which shall be an original but all of which together shall constitute one and
the same instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS OR ANY
OTHER JURISDICTION'S CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
* * * *
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IN WITNESS WHEREOF, World Omni and WODFI have caused this Assignment
to be duly executed and delivered by their respective duly authorized officers
as of the day and the year first above written.
WORLD OMNI FINANCIAL CORP.,
By:__________________________________
Name: Eric M. Gebhard
Title: Assistant Secretary
WODFI LLC,
By:__________________________________
Name: Eric M. Gebhard
Title: Assistant Secretary
A-6
EXHIBIT B
TO RPA
FORM OF OPINION OF COUNSEL
(As required by Section 8.2(d)(i) of the Receivables Purchase Agreement)
(a) The Amendment to the Receivables Purchase Agreement, attached
hereto as Schedule 1 (the "Amendment"), has been duly authorized, executed and
delivered by World Omni and constitutes the legal, valid and binding agreement
of World Omni, enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
from time to time in effect. The enforceability of World Omni's obligations is
also subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(b) The Amendment has been entered into in accordance with the terms
and provisions of Section 8.1 of the Receivables Purchase Agreement.
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EXHIBIT C
TO RPA
FORM OF OPINION OF COUNSEL
Provisions to be included in Opinion of Counsel to be delivered
pursuant to Section 2.4 of the Receivables Purchase Agreement.
The opinions set forth below may be subject to all the qualifications,
assumptions, limitations and exceptions taken or made in the opinion of counsel
to World Omni Financial Corp. ("World Omni"), delivered on any Closing Date.
Capitalized terms used but not defined herein are used as defined in Part I of
Appendix A to the Trust Sale and Servicing Agreement, dated as of November 22,
1999 and amended and restated on _________, 2000 (the "Trust Sale and Servicing
Agreement"), between WODFI LLC ("WODFI"), as transferor, and World Omni as
Servicer.
(a) The Assignment has been duly authorized, executed and delivered by
World Omni, and constitutes the valid and legally binding obligation of World
Omni, enforceable against World Omni in accordance with its terms.
(b) Assuming the Receivables in the Additional Accounts are created
under, and are evidenced solely by, Floorplan Financing Agreements, such
Receivables will constitute "either "instruments","general intangibles" or
"chattel paper" as defined under Section 9-105 of the UCC.
(c) With respect to Receivables in the Additional Accounts in existence
on the date hereof [and with respect to Receivables in the Additional Accounts]
that come into existence after the date hereof, upon the creation of such
Receivables and the subsequent transfer of such Receivables to WODFI free and
clear of any Liens in accordance with the Receivables Purchase Agreement and
receipt by World Omni of the consideration therefor required pursuant to the
Receivables Purchase Agreement, a bankruptcy court having jurisdiction over
World Omni (i) would not be entitled to compel the turnover of such Receivables
or the proceeds thereof to World Omni under Section 542 of the Bankruptcy Code
and (ii) would not be entitled to treat such Receivables or the proceeds thereof
as assets included in the estate of World Omni pursuant to Section 541 of the
Bankruptcy Code or subject to the automatic stay provision of Section 362(a) of
the Bankruptcy Code.
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EXHIBIT D
TO RPA
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVAL ACCOUNTS
(As required by Section 2.6(c) of the Receivables Purchase Agreement referred
to below)
REASSIGNMENT NO. ____ OF RECEIVABLES, dated as of______________, by and between
WODFI LLC ("WODFI"), as buyer, and WORLD OMNI FINANCIAL CORP. ("World Omni"), as
seller, pursuant to the Receivables Purchase Agreement referred to below.
W I T N E S S E T H:
WHEREAS World Omni and WODFI are parties to the Amended and Restated
Receivables Purchase Agreement dated as of __________, 2000 (as amended or
supplemented, the "Receivables Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, World Omni
wishes to remove all Receivables from certain Accounts and the Collateral
Security thereof (the "Removed Accounts") and to cause WODFI to reconvey the
Receivables of such Removal Accounts and such Collateral Security, whether now
existing or hereafter created, and all amounts currently held by WODFI or
thereafter received by the Trust in respect of such Removed Accounts, from WODFI
to World Omni (as each such term is defined in the Receivables Purchase
Agreement); and
WHEREAS WODFI is willing to accept such removal and to reconvey the
Receivables in the Removed Accounts, such Collateral Security and any related
amounts held or received by the Trust subject to the terms and conditions
hereof.
NOW, THEREFORE, World Omni and WODFI hereby agree as follows:
1. Defined Terms. All terms defined in the Receivables
Purchase Agreement and used herein shall have such defined meanings when used
herein, unless otherwise defined herein.
"Removal Date" shall mean, with respect to the Removal Accounts
designated hereby, ________________, ____.
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2. Notice of Removal Accounts.
a. Not less than five Business Days prior to the Removal Date,
World Omni shall furnish to WODFI, any Agent, any Enhancement Providers and the
Rating Agencies a written notice specifying the Determination Date (which may be
the Determination Date on which such notice is given) on which removal of the
Receivables of one or more Accounts will occur, such date being a Removal Date.
b. On or before the fifth business day after the Removal Date,
World Omni shall furnish to the Owner Trustee and the Indenture Trustee a
computer file, microfiche list or other list of the Removed Accounts that were
removed on the Removal Date, specifying for each Removed Accounts as of the date
of the Removal Notice its number, the aggregate amount outstanding in such
Removed Accounts and the aggregate amount of Principal Receivables therein and
represent that such computer file, microfiche list or other list of the Removed
Accounts is true and complete in all material respects. Such file or list shall
be marked as Schedule 1 to this Reassignment and shall be incorporated into and
made a part of this Reassignment as of the Removal Date and shall amend Schedule
1 to the Receivables Purchase Agreement.
3. Conveyance of Receivables and Accounts.
a. WODFI does hereby transfer, assign, set over and otherwise
convey to World Omni, without recourse, representation or warranty on and after
the Removal Date, all right, title and interest of the Trust in, to and under
all Receivables now existing at the close of business on the Removal Date and
thereafter created from time to time until the termination of the Trust in
Removed Accounts designated hereby, all Collateral Security thereof, all monies
due or to become due and all amounts received with respect thereto (including
all Non-Principal Receivables), all proceeds (as defined in Section 9-306 of the
UCC as in effect in the State of Florida and Recoveries) thereof relating
thereto.
b. If requested by World Omni, in connection with such
transfer, WODFI agrees to execute and deliver to World Omni on or prior to the
date of this Reassignment, a termination statement with respect to the
Receivables existing at the close of business on the Removal Date and thereafter
created from time to time and Collateral Security thereof in the Removed
Accounts reassigned hereby (which may be a single termination statement with
respect to all such Receivables and Collateral Security) evidencing the release
by the Trust of its lien on the Receivables in the Removed Accounts and the
Collateral Security, and meeting the requirements of applicable state law, in
such manner and such jurisdictions as are necessary to remove such lien.
4. Acceptance by WODFI. WODFI hereby acknowledges that, prior
to or simultaneously with the execution and delivery of this Reassignment, World
Omni delivered to WODFI the computer file or such microfiche or written list
described in Section 2(b) of this Reassignment.
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5. Representations and Warranties of World Omni. World Omni
hereby represents and warrants to WODFI as of the date of this Reassignment and
as of the Removal Date:
a. Legal, Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of World Omni, enforceable
against World Omni in accordance with its terms except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights generally and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in equity);
b. No Early Amortization Event or Investment Event. The
removal of the Accounts hereby removed shall not, in the reasonable belief of
World Omni, cause an Early Amortization Event or Investment Event to occur or
cause the Pool Balance to be less than the Required Pool Balance;
c. Selection Procedures. No selection procedures believed by
World Omni to be adverse to the interests of the Noteholders, Certificateholders
or any Enhancement Providers were utilized in selecting the Accounts to be
removed; and
d. True and Complete List. The list of Removed Accounts
described in Section 2(b) of this Assignment is, as of the Removal Date, true
and complete in all material respects.
Provided, however, that in the event that the removal on such Removal Date
relates solely to Ineligible Accounts, World Omni shall be deemed to make only
the representations and warranties contained in paragraph 5(a) above.
6. Condition Precedent. In addition to the conditions
precedent set forth in Section 2.6 of the Receivables Purchase Agreement, the
obligation of WODFI to execute and deliver this Reassignment is subject to World
Omni having delivered on or prior to the Removal Date to WODFI, any Agent, the
Owner Trustee, the Indenture Trustee and any Enhancement Providers an Officers`
Certificate certifying that (i) as of the Removal Date, all requirements set
forth in Section 2.6 of the Receivables Purchase Agreement for removing such
Accounts and reconveying the Receivables of such Removal Accounts and the
Collateral Security, whether existing at the close of business on the Removal
Date or thereafter created from time to time until the termination of the Trust,
have been satisfied, and (ii) each of the representations and warranties made by
World Omni in Section 5 hereof is true and correct as of the date of this
Reassignment and as of the Removal Date. WODFI may conclusively rely on such
Officers' Certificate, shall have no duty to make inquiries with regard to the
matters set forth therein and shall incur no liability in so relying.
7. Ratification of Agreement. As supplemented by this
Reassignment, the Receivables Purchase Agreement as so supplemented by this
Reassignment shall be read, taken and construed as one and the same instrument.
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8. Counterparts. This Reassignment may be executed in two or
more counterparts, and by different parties on separate counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS OR
ANY OTHER JURISDICTION'S CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
* * * *
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IN WITNESS WHEREOF, the undersigned have caused this Reassignment to
be duly executed and delivered by their respective duly authorized officer on
the day and year first above written.
WORLD OMNI FINANCIAL CORP.,
By:____________________________________
Name: Eric M. Gebhard
Title: Assistant Secretary
WODFI LLC,
By:__________________________________
Name: Eric M. Gebhard
Title: Assistant Secretary
C-6