Exhibit 1.1
EXECUTION COPY
WORLD OMNI MASTER OWNER TRUST
$350,000,000
Series 2004-1 Floating Rate Automobile Dealer Floorplan
Asset Backed Notes, Class A
UNDERWRITING AGREEMENT
January 7, 2004
CREDIT SUISSE FIRST BOSTON LLC
As Representative of the
Several Underwriters
Eleven Madison Avenue
New York, New York 10010
Dear Sirs:
1. Introductory. 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 you and each of the
other underwriters named in Schedule I hereto (the "Underwriters"), for whom you
are acting as representative (the "Representative"), with respect to the sale by
the Transferor to the Underwriters of $350,000,000 aggregate principal amount of
Floating Rate Asset Backed Notes, Class A (the "Notes") of the World Omni Master
Owner Trust (the "Issuer" or the "Trust") under the terms and conditions herein
contained.
The Issuer was created as a Delaware statutory 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 2004-1
Supplement (the "Series Supplement"), to be dated as of the Closing Date (as
defined in Section 3 hereof), 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 (the "Initial Closing Date") 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 as of August 11, 2000
and Amendment No. 2 thereto dated as of December 30, 2002 (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, Amendment No. 2 thereto dated as of
December 30, 2002 and Amendment No. 3 thereto dated as of the Closing Date (the
"Sale and Servicing Agreement") among World Omni, the Transferor and the Issuer
and the Issuer has pledged such property to the Indenture Trustee. Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in Appendix A to the Sale and Servicing Agreement.
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".
2. Representations and Warranties of World Omni and the Transferor.
(a) Each of World Omni and the Transferor, jointly and severally,
represents and warrant to, and agrees with, each of the Underwriters that on the
date hereof and on the Closing Date:
(i) A registration statement on Form S-3 (No. 333-97487), 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 September 6, 2003 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 posteffective 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 Representative 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
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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 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 (as such term is defined in Section 3 hereof), the Prospectus will conform
in all material respects to the requirements of the Act and the Rules and
Regulations and does not include, or will not include, any untrue statement of a
material fact, nor does the Prospectus omit, nor will it omit, any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the Effective Time
is subsequent to the execution and delivery of this Agreement: (A) on the
Effective Date, the Registration Statement and the Prospectus will conform in
all material respects to the requirements of the Act and the Rules and
Regulations and the Registration Statement will not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; and (B) on
the Effective Date, at the time of the filing of the Prospectus pursuant to Rule
424(b), if required, and at the Closing Date, the Prospectus will not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The two immediately
preceding sentences do not apply to statements in or omissions from the
Registration Statement or Prospectus based upon written information furnished to
the Transferor by any Underwriter through the Representative 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 Notes conform in all material respects to the description
thereof and the statements in relation thereto contained in the Prospectus; the
Notes have been duly and validly authorized and, when executed, issued,
authenticated and delivered in accordance with the Indenture and when delivered
to the Underwriters, against payment of the consideration
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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 (the
"Investment Company Act").
(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, each
Underwriter 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 Servicing
Agreement made as of the Closing Date will be true and correct, each Underwriter
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, each Underwriter 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 each Underwriter
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 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.
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(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 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 Notes or the offering and sale of the
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
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 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 Act or Regulation Section 3E-900.001 promulgated thereunder.
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(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 Representative or counsel for the Underwriters
shall be deemed a representation and warranty of World Omni or the Transferor,
as the case may be, to each Underwriter as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Notes. On the basis of and in reliance
on the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Transferor agrees to sell to
each Underwriter, severally and not jointly, and each Underwriter, severally and
not jointly, agrees to purchase from the Transferor the aggregate principal
amount of the Notes set forth in Schedule I opposite the name of such
Underwriter, at a purchase price equal to 99.77500% of the aggregate initial
principal balance thereof.
The Notes will initially be represented by one or more notes registered in
the name of Cede & Co., as the nominee of The Depository Trust Company ("DTC").
The interests of beneficial owners of the Notes will be represented by book
entries on the records of DTC and participating members thereof. Definitive
instruments evidencing the Notes will be available only under the limited
circumstances specified in the Indenture.
The Transferor will deliver the Notes to the Representative for the
respective accounts of the Underwriters, against payment of the purchase price
therefor in immediately available funds payable to the order of the Transferor,
at the office of Kirkland & Ellis LLP, 200 East Randolph Drive, Chicago,
Illinois 60601 (or at such other location as agreed upon among World Omni and
the Representative) at 10:00 A.M., New York time, on January 21, 2004, or at
such other time not later than five full business days thereafter, as World Omni
and the Representative determine, such time being herein referred to as the
"Closing Date". The instruments evidencing the Notes will be made available for
inspection at the above offices of Kirkland & Ellis LLP (or at such other
location agreed upon among World Omni and the Representative) at least 24 hours
prior to the Closing Date.
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), World Omni, the Transferor and the Underwriters
have agreed that the Closing Date will be not less than nine business days
following the date hereof.
4. Certain Agreements of the Underwriters.
(a) It is understood that the Underwriters propose to offer the Notes for
sale to the public as set forth in the Prospectus.
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(b) The Underwriters covenant and agree that prior to the date which is
one year and one day after the last date upon which (i) each Class of Notes of
the Issuer has been paid in full, and (ii) the Trust Agreement has terminated,
the Underwriters will not institute against, or join any other Person in
instituting against, the Transferor or Issuer, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other proceeding under any
federal or state bankruptcy or similar law. The foregoing shall not limit the
right of any Underwriter to file any claim in or otherwise take actions with
respect to any such proceeding instituted by any Person not under such a
constraint.
(c) Until the Representative informs the Transferor in writing that all of
the Notes have been sold by the Underwriters, each Underwriter covenants and
agrees to provide to the Transferor each day, with respect to sales of the Notes
made by such Underwriter on such date at any price other than the public
offering price set forth on the cover page of the Prospectus, the information in
writing (which may be in the form of a telecopy) necessary to enable the
Transferor to prepare and file or transmit for filing with the Commission the
information requested by the Commission to be filed with respect to the
distribution of the Notes.
5. Certain Agreements of the Transferor and World Omni. Each of World Omni and
the Transferor jointly and severally covenants and agrees with each of the
Underwriters that:
(a) If the Effective Time is prior to the execution and delivery of this
Agreement, the Transferor will file the Prospectus with the Commission pursuant
to and in accordance with subparagraph (2) (or, if applicable and if consented
to by the Representative, subparagraph (5)) of Rule 424(b), not later than date
required under Rule 424(b). The Transferor will advise the Representative
promptly of any such filing pursuant to Rule 424(b).
(b) The Transferor will advise the Representative promptly of any proposal
to amend or supplement the registration statement as filed or the related
prospectus or the Registration Statement or the Prospectus and will not effect
any such amendment or supplement without the consent of the Representative
(provided that such consent shall not be required if the Transferor is amending
or supplementing pursuant to paragraph (c) below). The Transferor will advise
the Representative 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 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 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
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which they were made, not misleading, or if it is necessary at any time to amend
or supplement the Prospectus to comply with the Act, the Transferor promptly
will prepare and file, or cause to be prepared and filed, with the Commission an
amendment or supplement that will correct such statement or omission or effect
such compliance; provided that, no consent of the Representatives as set forth
in Section 5(b) hereof will be required to file an amendment or supplement under
this Section 5(c) if the Transferor receives an opinion of counsel that such
amendment or supplement is required to comply with the Act. Neither the consent
of the Representative to, nor the delivery by any Underwriter of, any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 6 hereof.
(d) The Transferor will furnish to the Representative copies of the
registration statement as originally filed with the Commission and each
amendment thereto (in each case at least one of which will include all
exhibits), each related preliminary prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Representative may reasonably request.
(e) The Transferor will arrange for the qualification of the Notes for
sale under the laws of such jurisdictions in the United States as the
Representative may designate and will continue such qualifications in effect so
long as required for the distribution of the Notes, provided that 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.
(f) So long as any 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 Representative, as soon as practicable after each becomes
available, copies of (i) each report relating to the 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 Notes as the Representative may reasonably request from time
to time.
(g) World Omni and the Transferor will pay all expenses incident to the
performance of their respective obligations under this Agreement, including
without limitation, (i) expenses incident to the word processing, printing and
reproduction of the registration statement as originally filed with the
Commission and each amendment thereto, preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto), (ii) the fees and
disbursements of the Indenture Trustee, the Owner Trustee and their respective
counsel, (iii) the fees and disbursements of counsel and the independent public
accountants of the Transferor, the Issuer and World Omni, (iv) the fees charged
by each of Moody's Investors Service, Inc. ("Moody's") and Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies, Inc. ("Standard &
Poor's" and, together with Moody's, the "Rating Agencies") in connection with
the rating of the Notes, (v) the fees of DTC in connection with the book-entry
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registration of the Notes and (vi) expenses (including reasonable fees and
disbursements of counsel) incurred by the Underwriters pursuant to Section 5(f)
hereof in connection with the qualification of the Notes for sale under the laws
of such jurisdictions in the United States as the Representative may designate.
If this Agreement is terminated by the Representative in accordance with the
provisions of Section 6(g) or clause (i) or clause (ii) of Section 10 hereof,
the Transferor and World Omni shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel to the Underwriters.
(h) 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 Notes (it being
understood that this Section 5(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, and
(c) renewals of or amendments to existing financing arrangements, including but
not limited to renewals or amendments to Variable Funding Notes outstanding as
of the date hereof).
(i) So long as any 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.
(j) To the extent, if any, that the rating provided with respect to any
Notes by any Rating Agency is conditional upon the furnishing of documents or
the taking of any other actions by the 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.
6. Conditions of the Obligations of the Underwriters. The obligation of the
several Underwriters to purchase and pay for the Notes will be subject to the
accuracy of the respective representations and warranties on the part of the
Transferor and World Omni herein, to the accuracy of the statements of the
respective officers of the Transferor and World Omni made pursuant to the
provisions hereof, to the performance by the Transferor and World Omni of their
respective obligations hereunder and to the following additional conditions
precedent:
(a) On (i) the date of this Agreement, the Representative, World Omni, the
Issuer and the Transferor shall have received a letter or letters, dated the
date of delivery thereof (which, if the Effective Time is prior to the execution
and delivery of this Agreement, shall be on or prior to the date of this
Agreement or, if the Effective Time is subsequent to the execution and delivery
of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed shortly prior
to the Effective Time), of PricewaterhouseCoopers LLP ("PWC") confirming that
they are independent public accountants within the meaning of the Act and the
Rules and Regulations, substantially in the form of the draft or drafts to which
the Representative has previously agreed and otherwise in form and in substance
satisfactory to the Representative and counsel for the Underwriters and (ii) on
the
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Closing Date, the Representative, World Omni, the Issuer and the Transferor
shall have received a letter or letters, dated as of the Closing Date, from PWC,
updating each letter delivered pursuant to clause (i) above, in form and
substance satisfactory to the Representative and counsel for the Underwriters.
(b) If the Effective Time has not occurred prior to the date of this
Agreement, the Effective Time shall be the date of execution and delivery of
this Agreement, or the next business day after the date of this Agreement or
such later date as shall have been consented to by the Representative. If the
Effective Time is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) hereof. Prior to the Closing Date, no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Transferor, World Omni or the Representative, shall be
contemplated by the Commission.
(c) The Representative shall have received certificates of the President,
any Vice President or the Treasurer or any Assistant Treasurer of (i) the
Transferor and (ii) World Omni, each dated the Closing Date, in which such
officer shall state that (1) the representations and warranties of the
Transferor and World Omni, as the case may be, in each Basic Document to which
it is a party and in this Agreement are true and correct on the Closing Date,
(2) to the best knowledge of such officer after reasonable investigation, the
Transferor or World Omni, as the case may be, has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission and (3) subsequent to
the date of this Agreement, there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Transferor or World Omni, as the case may be, except
as set forth in or contemplated by the Prospectus.
(d) The Representative shall have received:
(i) The favorable opinion of Kirkland & Ellis LLP, special counsel to
the Transferor and World Omni, dated the Closing Date and satisfactory in form
and substance to the Representative and counsel for the Underwriters, and
substantially to the effect that:
(1) Assuming the due authorization, execution and delivery
thereof by the other parties thereto, each Basic Document will constitute a
valid and binding agreement of the Issuer, the Transferor and World Omni, as the
case may be, enforceable against such entity in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(2) Assuming the Notes have been duly and validly authorized,
when executed, authenticated and delivered as specified in the Indenture and the
Series Supplement and when delivered to the Underwriters against payment of the
consideration specified herein, the Notes will constitute a valid and binding
obligation of the Issuer, enforceable in accordance
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with their terms and the holder of the Notes will be entitled to the benefits
accorded by the Indenture and the Series Supplement.
(3) The statements in the Prospectus Supplement under the
captions "Summary of Terms" and "Series Provisions", and in the Base Prospectus
under the captions "Summary", "The Trust", "The Accounts", "The Notes" and "The
Transfer and Servicing Agreements", insofar as such statements purport to
summarize certain terms or provisions of the Notes, the Transferor Certificate
and the Basic Documents, provide a fair summary of such provisions, and the
statements in the Prospectus Supplement under "Certain Federal Income Tax
Consequences" and "ERISA Considerations", and the Base Prospectus under "Certain
Legal Aspects of the Receivables--Certain Matters Relating to Bankruptcy",
"Certain Federal Income Tax Consequences" and "ERISA Considerations", to the
extent that they constitute matters of law, summaries of legal matters,
documents or proceedings or legal conclusions relating to U.S. federal law have
been prepared or reviewed by such counsel and are correct in all material
respects.
(4) Neither the Transferor nor the Issuer is an "investment
company" as defined in the Investment Company Act.
(5) The Issuer, the Transferor and World Omni are not required
to obtain any consent, approval, authorization or order of any federal court or
federal governmental agency in order to obtain the right to enter into any of
the Basic Documents or to take any of the actions taken by the Issuer, the
Transferor or World Omni on the Closing Date to consummate the closing under the
Basic Documents, except such as may be required under the Act, the Rules and
Regulations or state securities laws, and those authorizations, approvals,
consents and orders which have previously been obtained and are in full force
and effect as of the Closing Date; provided, that such counsel need express no
opinion as to state securities laws.
(6) The Commission's Division of Corporation Finance, pursuant
to authority delegated to it by the Commission, has entered an order declaring
the Registration Statement effective under the Act on September 6, 2003 and such
counsel has no knowledge that any stop order suspending its effectiveness has
been issued or that any proceedings for that purpose are pending before, or
overtly threatened by, the Commission. Section 309(a) of the Trust Indenture Act
provides that the Indenture shall be deemed to have been qualified under the
Trust Indenture Act when the Registration Statement became effective under the
Act. Nothing has come to such counsel's attention that has caused them to
conclude (i) the Registration Statement at its effective date contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or (ii) the Prospectus at the date it bears or on the Closing Date contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading or (iii) as of the effective date,
either the Registration Statement or the Prospectus appeared on its face not to
be responsive in all material respects to the requirements of Form S-3.
(ii) The favorable opinion of Bilzin Sumberg Baena Price & Axelrod
LLP, counsel to World Omni, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters, and
substantially to the effect that:
11
(1) World Omni has been incorporated under the Florida General
Corporation Act, and its status is active; World Omni has the corporate power to
execute, deliver and perform its obligations and conduct its business as
described in the Prospectus.
(2) To its knowledge, World Omni has obtained all licenses and
approvals required for the conduct of its business or the ownership or leasing
of its property, to the extent that failure to obtain such licenses and
approvals would render any Receivable or any other material part of the corpus
of the Trust unenforceable or would materially and adversely affect the ability
of World Omni to perform any of its obligations under, or the enforceability of,
any Basic Document or this Agreement.
(3) This Agreement and each Basic Document to which World Omni
is a party has been duly authorized, executed and delivered by World Omni.
(4) None of (1) the transfer of the Receivables and the other
property of the Issuer transferred by World Omni to the Transferor pursuant to
the RPA, (2) the compliance by World Omni with all of the provisions of the
Basic Documents or (3) the consummation of the transactions herein and therein
contemplated, will conflict with, result in a breach of, or constitute a default
under, or with the giving of notice or the passage of time or both, would
constitute a default under or result in the creation or imposition of any Lien
upon any property or assets of World Omni pursuant to the terms of (i) its
articles of incorporation or bylaws, (ii) except as otherwise provided in the
Basic Documents, any contract, indenture, mortgage, loan agreement, note, lease
or other instrument (other than any document relating to any other supplement
for the Trust) to which World Omni is a party or by which it may be bound (such
opinion being limited to all such agreements, contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments as specifically certified by
a representative of World Omni in a certificate or a document to be material to
the business or financial condition of World Omni), or to which any of the
property or assets of World Omni is subject, or (iii) any applicable Florida or
federal law, statute or regulation or, to the best of their knowledge and
information, any judgment, order or decree applicable to World Omni of any
court, regulatory body or other governmental instrumentality having jurisdiction
over World Omni except, in the case of clause (ii) and the second part of clause
(iii) above, for defaults, breaches or violations that do not, in the aggregate,
have a material adverse effect on World Omni.
(5) To its knowledge and information, (A) there are no actions,
proceedings or investigations pending or threatened, other than those disclosed
in the Registration Statement, (w) asserting the invalidity of this Agreement,
any Basic Document or the Notes, (x) seeking to prevent the issuance of the
Notes or the consummation of any of the transactions contemplated by this
Agreement or the Basic Documents, (y) that might materially and adversely affect
the performance by World Omni of its respective obligations under, or the
validity or enforceability of, this Agreement or any Basic Document or (z)
seeking adversely to affect the federal or state income tax attributes of the
Notes as described in the Prospectus Supplement under the captions "Certain
Federal Income Tax Consequences" and "Florida Income Taxation", and in the Base
Prospectus under the captions "Certain Federal Income Tax Consequences" and
"State and Local Tax Consequences".
12
(iii) The favorable opinion of Richards, Layton & Finger, P.A.,
special Delaware counsel to the Transferor, the Issuer and World Omni, dated the
Closing Date and satisfactory in form and substance to the Representative and
counsel to the Underwriters, to the effect that:
(1) The Transferor has been duly formed and is validly existing
in good standing as a limited liability company under the Delaware Limited
Liability Company Act (6 Del. C., ss.18-101, et seq.) (the "LLC Act").
(2) Under the LLC Act and the Second Amended and Restated
Limited Liability Company Agreement of the Transferor, dated as of March 31,
2000 (the "Company Agreement"), the Transferor has all requisite limited
liability company power and authority to execute and deliver, and to perform its
legal obligations under, this Agreement and each Basic Document to which it is a
party.
(3) The Issuer has been duly created and is validly existing in
good standing as a statutory trust under the Delaware Statutory Trust Act (12
Del C., ss.3801 et seq.) (the "Trust Act").
(4) Under the Trust Act and the Trust Agreement, the Issuer has
all requisite trust power and authority to execute and deliver, and to perform
its obligations under, each Basic Document to which it is a party.
(5) Under the LLC Act and the Company Agreement, the execution
and delivery by the Transferor of this Agreement and each Basic Document to
which it is a party, and the performance by the Transferor of its obligations
thereunder, have been duly authorized by all requisite limited liability company
action on the part of the Transferor.
(6) Under the Trust Act and the Trust Agreement, the execution
and delivery by the Issuer of each Basic Document to which it is a party, and
the performance by the Issuer of its obligations thereunder, have been duly
authorized by all requisite trust action on the part of the Issuer.
(7) The execution and delivery by the Transferor of each Basic
Document to which it is a party, and the performance by the Transferor of its
obligations thereunder, do not violate, conflict with, result in a breach of or
constitute a default under (i) the Certificate of Formation of the Transferor,
(ii) the Company Agreement, or (iii) any Delaware law, statute or regulation,
except that no opinion is expressed herein concerning any statute or regulation
relating to securities laws.
(8) The execution and delivery by the Issuer of each Basic
Document to which it is a party, and the performance by the Issuer of its
obligations thereunder, do not violate, conflict with, result in a breach of or
constitute a default under (i) the Certificate of Trust of the Issuer, (ii) the
Trust Agreement, or (iii) any Delaware law, statute or regulation, except that
no opinion is expressed herein concerning any statute or regulation relating to
securities laws.
13
(9) No consent, approval, authorization or order of, or
registration, filing or declaration with, any Delaware court or governmental
agency or body is required solely in connection with the Transferor's execution
and delivery of, and the performance of its obligations under, each Basic
Document to which it is a party other than the filing of the Certificate of
Formation of the Transferor with the Secretary of State of Delaware (which has
been filed) and the filing of any required financing statement.
(10) No consent, approval, authorization or order of, or
registration, filing or declaration with, any Delaware court or governmental
agency or body is required solely in connection with the Issuer's execution and
delivery of, and the performance of its obligations under, each Basic Document
to which it is a party other than the filing of the Certificate of Trust of the
Issuer with the Secretary of State of Delaware (which has been filed) and the
filing of any required financing statement.
(iv) (i) The favorable opinion of Kirkland & Ellis LLP, special
counsel to the Transferor, dated the Closing Date and to the effect that (A) the
Notes will properly be characterized as indebtedness for Federal income tax
purposes and (B) the Trust will not be classified as an association (or a
publicly traded partnership) taxable as a corporation for federal income tax
purposes; and (ii) The favorable opinion of Bilzin Sumberg Baena Price & Axelrod
LLP, special Florida tax counsel to the Transferor, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel to the
Underwriters, to the effect that (A) assuming that the Trust will have no
Federal income tax liability, the Trust will not have Florida corporate income
tax liability, provided, however, it may be subject to filing an informational
tax return with the Florida Department of Revenue, (B) the loan rule promulgated
under the Florida Corporate Income Tax Code and included in the Florida
Administrative Code relating to interest on loans by "financial organizations"
(as such term is defined therein), should not apply to an investment in the
Notes by such a financial organization and (C) the statements in the Prospectus
Supplement under the caption "Florida Income Taxation" and in the Base
Prospectus under the caption "State and Local Tax Consequences", to the extent
that they constitute matters of law, summaries of legal matters, documents or
proceedings or legal conclusions, have been reviewed by such counsel and are
correct in all material respects.
(v) Reliance letters relating to each legal opinion relating to the
transactions contemplated by this Agreement and the Basic Documents rendered by
counsel to the Transferor, the Issuer or World Omni to the Owner Trustee, the
Indenture Trustee or any Rating Agency, including a reliance letter with respect
to a legal opinion relating to (i) the transfer of the Receivables and related
property from World Omni to the Transferor, from the Transferor to the Issuer
and the pledge of such property by the Issuer to the Indenture Trustee and (ii)
the perfection of the Indenture Trustee's security interest in the Collateral.
(vi) The favorable opinion of special counsel to the Indenture
Trustee, dated the Closing Date and satisfactory in form and substance to the
Representative and counsel to the Underwriters, to the effect that:
(1) The Indenture Trustee is validly existing as a banking
corporation, in good standing under the laws of the State of Illinois with full
power and authority (corporate
14
and other) to execute, deliver and perform its obligations as Indenture Trustee
under each Basic Document to which the Indenture Trustee is a party.
(2) Each Basic Document to which the Indenture Trustee is a
party has been duly authorized, executed and delivered by the Indenture Trustee
and, assuming the due authorization, execution and delivery thereof by the other
parties thereto, will constitute a legal, valid and binding obligation of the
Indenture Trustee enforceable in accordance with its terms, except that certain
of such obligations may be enforceable solely against the Trust Estate and
except as the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization, liquidation or other similar laws affecting
enforcement of creditors' rights generally and by general principles of equity
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
(3) The Notes have been duly authenticated and delivered by the
Indenture Trustee in accordance with the terms of the Indenture.
(4) No approval, authorization or other action by or filing with
any governmental authority of the United States of America, having jurisdiction
over the banking or trust powers of the Indenture Trustee is required in
connection with the execution and delivery by the Indenture Trustee of the
Supplement
(5) The execution and delivery of the Supplement, and the
performance by the Indenture Trustee of the terms of the Supplement, do not
conflict with or result in a violation of (a) any United States of America law
governing the banking or trust powers of the Indenture Trustee or (b) the
Articles of Incorporation or By-Laws of the Indenture Trustee.
(vii) The favorable opinion of special counsel to the Owner Trustee,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel to the Underwriters, to the effect that:
(1) The Owner Trustee has been duly organized and is validly
existing and in good standing as a national banking association under the laws
of the United States.
(2) The Owner Trustee has the power and authority to execute,
deliver and perform its obligations under the Trust Agreement, and, on behalf of
the Trust, to execute and deliver the Notes and the 2004-1 Series Supplement.
(3) Assuming the due authorization, execution and delivery
thereof by the other parties thereto, the Trust Agreement will constitute a
valid and binding agreement of the Owner Trustee, enforceable against the Owner
Trustee 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).
15
(4) The 2004-1 Series Supplement, and the Notes have been duly
executed and delivered by the Owner Trustee on behalf of the Trust.
(5) Neither the execution or delivery by the Owner Trustee of
the Trust Agreement, nor the consummation by the Owner Trustee of any of the
transactions contemplated thereby, nor compliance by the Owner Trustee with the
terms or provisions of the Trust Agreement, (i) will violate any Delaware or
United States federal law, rule or regulation governing the trust powers of the
Owner Trustee or the Owner Trustee's articles of association or by-laws, or, to
our knowledge and without independent investigation, any judgment or order
applicable to it or its assets or properties, or any indenture, mortgage,
contract, or other agreement or instrument to which the Owner Trustee is a
party, or (ii) require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with respect to, any
governmental authority or agency under the laws of the State of Delaware or the
United States governing the trust powers of the Owner Trustee, other than the
filing of the Certificate of Trust with the Secretary of State of the State of
Delaware.
(viii) The favorable opinion of McKee Nelson LLP, counsel for the
Underwriters, dated the Closing Date, with respect to the validity of the Notes
and such other related matters as the Representative shall request, which
opinions shall be satisfactory in form and substance to the Representative and
counsel for the Underwriters.
(e) The Notes shall be rated in the highest rating category for long-term
debt obligations by each of Moody's and Standard & Poor's.
(f) On or prior to the Closing Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance of the Notes
and the Transferor Certificate and sale of the Notes as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the parties to the Basic
Documents in connection with the issuance of the Notes and sale of the Notes as
herein contemplated shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(g) If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representative by notice to the Transferor and World Omni at any time at
or prior to the Closing Date, and such termination shall be without liability of
any party to any other party except as provided in Section 5(h) hereof.
7. Indemnification and Contribution.
(a) Each of World Omni and the Transferor agrees, jointly and severally, to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the information
16
deemed to be part of the Registration Statement pursuant to Rule 430A(b) of the
Rules and Regulations, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the written consent
of the Transferor and World Omni; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 7(c) hereof, the fees and disbursements of counsel chosen by
the Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under
clause (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Transferor by
any Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); provided, that the
foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter (or to the benefit of the person controlling
such Underwriter) from whom the person asserting any such losses, liabilities,
claims, damages or expenses purchased Notes if such untrue statement or omission
or alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (as amended or supplemented if the
Transferor or World Omni shall have furnished to the Underwriters any amendments
or supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented if the Transferor or World Omni shall have furnished to
the Underwriters any amendments or supplements thereto) shall not have been
furnished to such person at or prior to the written confirmation of the sale of
such Notes to such person.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Transferor and World Omni, each of their respective directors, each
of their respective officers who signed the Registration Statement and each
person, if any, who controls each of the Transferor and World Omni,
respectively, within the meaning of Section 15 of the Act, against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or
17
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Transferor by such
Underwriter directly or through the Representative expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it 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 7(a) above, counsel to the indemnified parties shall be
selected by the Representative, and, in the case of parties indemnified pursuant
to Section 7(b) above, counsel to the indemnified parties shall be selected by
the World Omni. 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 7 or Section 8 hereof (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 to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
8. Contribution. If the indemnification provided for in Section 7 hereof is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) thereof, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the loss,
liability, claim, damage or expense referred to in subsection (a) or (b) of
Section 7, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Transferor and World Omni on the one hand and the
Underwriters on the other from the offering of the Notes, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Transferor
and World Omni on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such loss, liability, claim,
damage or expense as well as any other relevant equitable considerations. The
relative benefits received by the Transferor and World Omni on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Transferor bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault
18
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 Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the loss, liability, claim, damage or expense referred to in the first sentence
of this Section shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this Section.
Notwithstanding the provisions of this Section, no Underwriter shall be required
to contribute any amount in excess of the amount by which the total price at
which the Notes underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the other provisions of this Section, each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the Act shall have the same rights to contribution as such Underwriter and each
director of the Transferor and World Omni, each officer of the Transferor who
signed the Registration Statement and each person, if any, who controls either
the Transferor or World Omni within the meaning of Section 15 of the Act shall
have the same rights to contribution as the Transferor or World Omni, as the
case may be. The Underwriters' respective obligations to contribute pursuant to
this Section are several in proportion to the principal amount of the Notes set
forth opposite their respective names in Schedule I hereto and not joint.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Transferor and World Omni or their respective officers and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Transferor, World Omni or any of
their respective representatives, officers or directors or any controlling
Person, and will survive delivery of and payment for the Notes. If for any
reason the purchase of the Notes by the Underwriters is not consummated, the
Transferor and World Omni shall remain responsible for the expenses to be paid
or reimbursed by them pursuant to Section 5(h) hereof and the respective
obligations of the Transferor, World Omni and the Underwriters pursuant to
Section 7 and 8 hereof shall remain in effect. If the purchase of the Notes by
the Underwriters is not consummated for any reason other than solely because of
the occurrence of any event specified in clause (iii), (iv) or (v) of Section 10
or Section 11 (b) hereof, the Transferor and World Omni will reimburse the
Underwriters for all out-of-pocket expenses (including the reasonable fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Notes.
10. Termination of Agreement. The Representative may terminate this Agreement,
by notice to the Transferor and World Omni, at any time prior to or at the
Closing Date (i) if there has been, since the date of this Agreement or since
the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Transferor or
World
19
Omni, whether or not arising in the ordinary course of business; (ii) if there
has occurred any downgrading in the rating of the debt securities of the
Transferor or World Omni by any "nationally recognized statistical rating
organization" (as such term is defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Transferor or
World Omni (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating); (iii)
if there has occurred any material adverse change in the financial markets in
the United States or any outbreak of hostilities or other calamity or crisis,
the effect of which is such as to make it, in the judgment of the
Representative, impracticable to market any Class of Notes or to enforce
contracts for the sale of any Class of Notes; (iv) if trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed or maximum
ranges for prices for securities have been required, by either of said Exchanges
or by order of the Commission or any other governmental authority; or (v) if a
banking moratorium has been declared by either federal, New York, Delaware,
Florida or Illinois authorities.
11. Default By One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Date to purchase the Notes which it or
they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, but not the obligation,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the total aggregate principal amount of the Notes, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in such proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10%
of the total aggregate principal amount of the Notes, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action pursuant to this Section shall relieve any defaulting Underwriter
from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representative or World Omni and the Transferor shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangement.
12. Notices. All communications hereunder will be in writing and, if sent to (i)
the Underwriters, shall be directed to the Representative and will be mailed,
delivered or sent by facsimile and confirmed to it at Credit Suisse First Boston
LLC, Eleven Madison Avenue New York, New York 10010, Attention: Transactions
Advisory Group, (facsimile number (212)
20
325-4296); (ii) the Transferor, will be mailed, delivered or sent by facsimile
and confirmed to it at WODFI LLC, 190 N.W. 12th Avenue, Deerfield Beach, Florida
33442, Attention: Patrick C. Ossenbeck, Treasurer (facsimile number (954)
429-2685); (iii) the Issuer, will be mailed, delivered or sent by facsimile and
confirmed to it at c/o WODFI LLC, 190 N.W. 12th Avenue, Deerfield Beach, Florida
33442, Attention: Patrick C. Ossenbeck, Treasurer (facsimile number (954)
429-2685); or (iv) World Omni, will be mailed, delivered or sent by facsimile
and confirmed to it at World Omni Financial Corp., 190 N.W. 12th Avenue,
Deerfield Beach, Florida 33442, Attention: Patrick C. Ossenbeck, Treasurer
(facsimile number (954) 429-2685) in each case (ii), (iii) and (iv) with a copy
to Susan Jane Chester, Chief Corporate Counsel-Treasury, Mergers and
Acquisitions (facsimile number (954) 429-2298).
13. Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and controlling Persons referred to in Sections 7 and 8 hereof, and no
other Person will have any right or obligation hereunder.
14. Severability of Provisions. Any covenant, provision, agreement or term of
this Agreement that is prohibited or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof.
15. Miscellaneous. This Agreement constitutes the entire agreement and
understanding of the parties hereto with respect to the matters and transactions
contemplated hereby and supersedes all prior agreements and understandings
whatsoever relating to such matters and transactions. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. The headings in this
Agreement are for the purposes of reference only and shall not limit or
otherwise affect the meaning hereof.
16. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
17. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to any
otherwise applicable principles of conflicts of laws.
21
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us one of the counterparts duplicate hereof, whereupon
it will become a binding agreement between the Transferor and World Omni and the
Underwriters in accordance with its term.
Very truly yours,
WODFI LLC
By: /s/ Alan J. Browdy
-----------------------------------
Name: Alan J. Browdy
Title: Assistant Treasurer
WORLD OMNI FINANCIAL CORP.
By: /s/ Alan J. Browdy
-----------------------------------
Name: Alan J. Browdy
Title: Assistant Treasurer
CONFIRMED AND ACCEPTED, as of
the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
By: /s/ John L. McWilliams IV
------------------------------
Name: John L. McWilliams IV
Title: Managing Director
For itself and as Representative of the other Underwriters named in Schedule I
hereto.
SCHEDULE I
- --------------------------------------------------------------------------------
Name of Underwriter Principal
Amount of Notes
- --------------------------------------------------------------------------------
Credit Suisse First Boston LLC ................. $245,000,000
- --------------------------------------------------------------------------------
Barclays Capital Inc. .......................... $ 70,000,000
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Lazard Freres & Co. LLC ........................ $ 35,000,000
- --------------------------------------------------------------------------------
Total ................................. $350,000,000
============
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