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EXHIBIT 1.1
DRAFT DATED 10/21/97
WORLD OMNI 1997-B AUTOMOBILE LEASE SECURITIZATION TRUST
$[ ]
[ ]% Automobile Lease Asset Backed Notes, Class A-1
$[ ]
[ ]% Automobile Lease Asset Backed Notes, Class A-2
$[ ]
[ ]% Automobile Lease Asset Backed Notes, Class A-3
$[ ]
[ ]% Automobile Lease Asset Backed Notes, Class A-4
UNDERWRITING AGREEMENT
October __, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
As Representative of the
Several Underwriters
Eleven Madison Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
1. Introductory. World Omni Lease Securitization L.P., a Delaware
limited partnership (the "Transferor"), Auto Lease Finance L.P., a Delaware
limited partnership ("ALFI L.P."), and World Omni Financial Corp., a Florida
corporation ("World Omni"), hereby confirm their respective agreements with you
and each of the other underwriters named in Schedule I hereto (the
"Underwriters"), for whom you are acting as representative (the
"Representative"), with respect to the sale by the Transferor to the
Underwriters of $260,000,000 aggregate principal amount of [ ]% Automobile
Lease Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), $220,000,000
aggregate principal amount of [ ]% Automobile Lease Asset Backed Notes, Class
A-2 (the "Class A-2 Notes"), $390,000,000 aggregate principal amount of [ ]%
Automobile Lease Asset Backed Notes, Class A-3 (the "Class A-3 Notes") and
$239,128,644 aggregate principal amount of [ ]% Automobile Lease Asset Backed
Notes, Class A-4 (the "Class A-4 Notes" and, together with the Class A-1
Notes, the Class A-2 Notes and the Class A-3 Notes, the "Class A Notes") of
the World Omni 1997-B Automobile Lease Securitization Trust
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(the "Trust") under the terms and conditions herein contained. The sole general
partner of the Transferor is World Omni Lease Securitization, Inc. ("WOLSI" or
the "WOLSI General Partner"), a Delaware corpora tion and a wholly owned,
special purpose finance subsidiary of World Omni, and the sole limited partner
of the Transferor is World Omni (in such capacity, the "WOLSI Limited Partner").
The sole general partner of ALFI L.P. is Auto Lease Finance, Inc. ("ALFI" or the
"ALFI General Partner"), a Delaware corporation and a wholly owned, special
purpose finance subsidiary of World Omni, and the sole limited partner of ALFI
L.P. is World Omni (in such capacity, the "ALFI Limited Partner").
Simultaneously with the issuance of the Class A Notes, the Transferor
will cause the Trust to issue $65,948,190 aggregate principal amount of
Automobile Lease Asset Backed Notes, Class B (the "Class B Notes" and, together
with the Class A Notes, the "Notes"). The Notes will be issued pursuant to an
indenture, dated as of October 1, 1997 (the "Indenture"), between the Trust and
U.S. Bank National Association ("U.S. Bank") as indenture trustee (in such
capacity, the "Indenture Trustee"). The Transferor will own the undivided
equity interest in the Trust (the "Transferor Interest"). The Transferor
Interest will be evidenced by a certificate (the "Transferor Certificate")
issued pursuant to a securitization trust agreement, dated as of October 1,
1997 (the "Securitization Trust Agreement"), among the Transferor, PNC Bank,
Delaware ("PNC Bank"), as owner trustee (in such capacity, the "Owner Trustee")
and the Indenture Trustee. The Class B Notes will be subordinated to the
Class A Notes, and the Transferor Certificate will be subordinated to the
Notes, in each case to the extent described in the Securitization Trust
Agreement and the Indenture. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Indenture.
The property of the Trust will consist primarily of an undivided 99.8%
interest (the "SUBI Interest") in a special unit of beneficial interest (the
"SUBI"), which, in turn, will evidence a beneficial interest in certain
specified assets of World Omni LT, an Alabama business trust (the "Origination
Trust"), and monies on deposit in the Reserve Fund, and in certain other
accounts (collectively, the "SUBI Assets"). The assets of the Origination Trust
(the "Origination Trust Assets") will consist primarily of retail closed-end
lease contracts assigned to the Origination Trust by motor vehicle dealers in
the World Omni network of dealers, the automobiles and light duty trucks
relating thereto and the proceeds thereof, and payments made under certain
insurance policies relating to such lease contracts, the related lessees or such
leased vehicles, including payments made under a residual value insurance
policy, policy number [ ], dated as of October 1, 1997 (the "Residual Value
Insurance Policy") issued by American International Specialty Lines Insurance
Company (the "Insurer") in respect of the Leased Vehicles. The SUBI will not
evidence a direct interest in the SUBI Assets, nor will it represent a
beneficial interest in any Origination Trust Assets other than the SUBI Assets.
The Owner Trustee and the Trust will pledge the SUBI Interest and the other
property of the Trust to the Indenture Trustee to secure the Notes pursuant to
the Indenture.
The SUBI Interest will be evidenced by a certificate (the "SUBI
Certificate") issued to ALFI L.P. by the Origination Trust pursuant to a trust
agreement as amended and restated as of July 1, 1994, as amended by Amendment
No. 1 thereto dated as of November 1, 1994, and as supplemented by a supplement
dated as of October 1, 1997 (collectively, the "SUBI Trust Agreement"), in each
case among ALFI L.P., as initial grantor and initial beneficiary, VT Inc., as
trustee (the "Origination Trustee"), and (for certain limited purposes only)
U.S. Bank, as trust
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agent (in such capacity, the "Trust Agent"). The SUBI Certificate will be sold
by ALFI L.P. to the Transferor pursuant to the SUBI certificate purchase and
sale agreement, dated as of October 1, 1997 (the "Certificate Purchase and Sale
Agreement"), between the Transferor and ALFI L.P. The Origination Trust Assets
(including the SUBI Assets) will be serviced by World Omni pursuant to a second
amended and restated servicing agreement dated as of July 1, 1994, as
supplemented by a servicing supplement dated as of October 1, 1997
(collectively, the "Servicing Agreement"), in each case between the Origination
Trustee and World Omni. The Securitization Trust Agreement, the SUBI Trust
Agreement, the Certificate Purchase and Sale Agreement, the Indenture, the
Servicing Agreement, the backup security agreement, dated as of October 1, 1997
(the "Backup Security Agreement"), among World Omni, ALFI L.P., the Origination
Trustee, the Transferor, the Owner Trustee and the Indenture Trustee, the
support agreement, dated as of October 1, 1995, as amended (the "Support
Agreement"), by World Omni in favor of the Transferor, the intercreditor
agreement, dated as of November 1, 1994, among World Omni, ALFI L.P., the
Transferor, the Indenture Trustee, the Origination Trustee, the Trust Agent,
the Owner Trustee and the other parties named in Appendix A thereto, together
with an accession agreement thereto (collectively, the "Intercreditor
Agreement"), between the Indenture Trustee and the Transferor, and the premium
payment agreement, dated as of October 1, 1997, between World Omni and the
Insurer, are referred to herein collectively as the "Basic Documents".
2. Representations and Warranties of the Transferor, ALFI L.P. and
World Omni.
(a) Each of the Transferor, ALFI L.P. and World Omni, jointly and
severally, represents and warrants to, and agrees with, each of the Underwriters
that:
(i) A registration statement on Form S-1 (No. 333-35523),
including a form of prospectus, relating to the registration of the
Class A Notes 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, either (1) has been declared effective under the
Securities Act of 1933, as amended (the "Act"), and is not proposed to
be amended or (2) is proposed to be amended by amendment or
post-effective amendment. If the Transferor or ALFI L.P. 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 and ALFI L.P. have advised the Representative
that they (1) do 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) propose to file an amendment or post-effective
amendment to such registration statement, the date and time as of
which such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by
the Commission. "Effective Date" means the date of the Effective Time.
Such registration statement, as amended at the Effective Time,
including all information, if any, deemed to
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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 form of prospectus relating to the Class A Notes, in the form
transmitted to the Commission for filing 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 Class A Notes will be
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval ("XXXXX") 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 and ALFI L.P. by any Underwriter through the Representative
specifically for use therein. The Prospectus delivered to you for use
in connection with the offering of the Class A Notes will be identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to the XXXXX system, except to the extent permitted
by Regulation S-T.
(iii) The Basic Documents, the SUBI Certificate, the
certificate evidencing the remaining 0.2% undivided interest in the
SUBI other than the SUBI Interest (the "Retained SUBI Certificate") and
the Residual Value Insurance Policy conform in all material respects to
the descriptions thereof and the statements in relation thereto
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contained in the Prospectus; the SUBI Certificate and the Retained SUBI
Certificate have been duly and validly authorized and, when executed,
issued, authenticated and delivered in accordance with the SUBI Trust
Agreement, will be duly and validly issued and outstanding and entitled
to the benefits of the SUBI Trust Agreement.
(iv) The Notes and the Transferor Certificate conform in
all material respects to the description thereof and the statements in
relation thereto contained in the Prospectus; the Notes and the
Transferor Certificate have been duly and validly authorized and, when
executed, issued, authenticated and delivered in accordance with the
Indenture and the Securitization Trust Agreement, respectively, and,
in the case of the Class A Notes, when delivered to the Underwriters,
against payment of the consideration specified herein, will be duly
and validly issued and outstanding and entitled to the benefits of the
Indenture.
(v) None of the Transferor, World Omni, WOLSI, ALFI, ALFI
L.P., the Origination Trust or the Trust is now or, as a result of the
transactions contemplated by this Agreement, will become, an
"investment company", nor is any of them "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act").
(vi) Each of the Contracts and Leased Vehicles allocated
as a SUBI Asset on the Closing Date or on the related Transfer Date
will meet the eligibility criteria for selection described in the
SUBI Trust Agreement.
(vii) Each Initial Contract is, and each Subsequent Contract
will be, in substantially one of the forms attached as an Exhibit to
the SUBI Trust Agreement and constitutes or will constitute on the
related Transfer Date the legal, valid, binding and enforceable
agreement of the parties thereto; and each Contract complies or will
comply on the Closing Date or on the related Transfer Date in all
material respects as to content and form with all applicable state and
federal laws, including without limitation, consumer protection laws.
(viii) At or prior to the Closing Date, the Origination
Trustee will have allocated Contracts and Leased Vehicles as SUBI
Assets that have an Aggregate Net Investment Value as of the Initial
Cutoff Date equal to $1,201,460,915.
(b) The Transferor and World Omni, as the WOLSI Limited Partner, as the
ALFI Limited Partner and on behalf of WOLSI as the WOLSI General Partner and on
behalf of ALFI L.P. as the ALFI General Partner, jointly and severally represent
and warrant to, and agree with, each of the Underwriters that:
(i) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise set forth therein, (A) there has been no material adverse
change or development resulting in a prospective material adverse
change in the condition, financial or otherwise, of the Transferor, the
WOLSI General Partner, ALFI L.P. or the ALFI General Partner, whether
or not arising in the
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ordinary course of business and (B) there have been no transactions
entered into by the Transferor, the WOLSI General Partner, ALFI L.P. or
the ALFI General Partner, other than those in the ordinary course of
their respective businesses, that are material with respect to the
Transferor, the WOLSI General Partner, ALFI L.P. or the ALFI General
Partner.
(ii) Each of the Transferor and ALFI L.P. has been duly
formed and is validly existing as a limited partnership under the
Delaware Revised Uniform Limited Partnership Act, 6 Del. C. ss. 17-101
et seq. (the "Delaware Act"), and all filings required at the date
hereof under the Delaware Act with respect to the due formation and
valid existence of the Transferor and ALFI L.P. as a limited
partnership have been made; each of the Transferor and ALFI L.P. has
all requisite power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
or in the World Omni Lease Securitization L.P. Amended and Restated
Limited Partnership Agreement, dated as of July 1, 1994 (the "WOLSI
Partnership Agreement"), between the WOLSI General Partner and the
WOLSI Limited Partner or the Auto Lease Finance L.P. Amended and
Restated Limited Partnership Agreement, dated as of July 1, 1994 (the
"ALFI Partnership Agreement" and, together with the WOLSI Partnership
Agreement, the "Partnership Agreements"), between the ALFI General
Partner and the ALFI Limited Partner, as the case may be, and to enter
into and to perform its obligations under the related Partnership
Agreement, this Agreement, each Basic Document to which the Transferor
or ALFI L.P. is a party or by which it may be bound, the Notes and the
Transferor Certificate; each of the Transferor and ALFI L.P. is duly
qualified or registered as a foreign partnership to transact business
and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on its
condition, financial or otherwise.
(iii) The WOLSI General Partner is the sole general partner of
the Transferor and the WOLSI Limited Partner is the sole limited
partner of the Transferor and, at the Closing Date, each of the WOLSI
General Partner and the WOLSI Limited Partner will own its respective
partnership interest in the Transferor (each of which is a
nontransferable interest to the extent provided under the WOLSI
Partnership Agreement) free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest
(collectively, "Liens") except as permitted by the Basic Documents.
(iv) The ALFI General Partner is the sole general partner of
ALFI L.P. and the ALFI Limited Partner is the sole limited partner of
ALFI L.P. and, at the Closing Date, each of the ALFI General Partner
and the ALFI Limited Partner will own its respective partnership
interests in ALFI L.P. (each of which is a nontransferable interest to
the extent provided under the ALFI Partnership Agreement) free and
clear of any Lien except as permitted by the Basic Documents.
(v) None of the Transferor, the WOLSI General Partner, ALFI
L.P. or the ALFI General Partner is in violation of its organizational
or charter documents, bylaws or the related Partnership Agreement, as
the case may be, or in default in the performance or
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observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it may be
bound, or to which any of its properties or assets is subject; the
execution, delivery and performance by each of the Transferor, the
WOLSI General Partner, ALFI L.P. and the ALFI General Partner, as the
case may be, of this Agreement, the related Partnership Agreement, each
Basic Document to which it is a party, the Notes and the Transferor
Certificate, 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 the related Partnership Agreement, or any
applicable law, administrative regulation or administrative or court
decree.
(vi) 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 any of the Transferor, the WOLSI General
Partner, the WOLSI Limited Partner, ALFI L.P., the ALFI General
Partner, the ALFI Limited Partner and World Omni, threatened, against
or affecting the Transferor, the WOLSI General Partner, ALFI L.P. or
the ALFI General Partner 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, either Partnership 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 the Transferor, the
WOLSI General Partner, ALFI L.P. or the ALFI General Partner 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 the Transferor, the WOLSI General Partner,
the WOLSI Limited Partner, ALFI L.P., the ALFI General Partner or the
ALFI Limited Partner 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.
(vii) 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, govern mental authority or agency or any other
Person is necessary in connection with (A) the issuance of the SUBI
Certificate or the Retained SUBI Certificate, (B) the issuance of the
Notes and the Transferor Certificate or the offering and sale of the
Notes, (C) the execution, delivery and performance by the Transferor
or ALFI L.P. of this Agreement, any Basic Document to which it is a
party, the Notes or the Transferor
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Certificate or (D) the consummation by the Transferor or ALFI L.P. 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.
(viii) Each of the Transferor, the WOLSI General Partner, ALFI
L.P. and the ALFI General Partner possesses all material certificates,
authorities, licenses and permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies as are necessary to
conduct the business now operated by it, and none of such entities has
received notice of any proceedings relating to the revocation or
modification of any such certificate, authority, license or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect its
condition, financial or otherwise.
(ix) This Agreement has been duly executed and delivered by
the WOLSI General Partner for the Transferor and by the ALFI General
Partner for ALFI L.P.
(x) As of the Closing Date, each of the Basic Documents to
which any of the Transferor, the WOLSI General Partner, ALFI L.P. or
the ALFI General Partner is a party and the WOLSI Partnership Agreement
or the ALFI Partnership Agreement, as the case may be, has been duly
executed and delivered by each such entity, and, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, will constitute the legal, valid and binding agreement of the
Transferor, the WOLSI General Partner, ALFI L.P. or the ALFI General
Partner, 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).
(xi) The Transferor will use the proceeds of the Class A
Notes as described in the Prospectus under the caption "Use of
Proceeds".
(xii) As of the Closing Date, the representations and
warranties of each of the Transferor, the WOLSI General Partner, ALFI
L.P. and the ALFI General Partner in the related Partnership Agreement
and in each Basic Document to which it is a party and in Officer's
Certificates of any of the Transferor, the WOLSI General Partner, ALFI
L.P. and the ALFI General Partner delivered on the Closing Date or on
each Transfer Date, as the case may be, will be true and correct, and
each Underwriter may rely on such representations and warranties as if
they were set forth herein in full.
(xiii) None of the Transferor, the WOLSI General Partner, the
WOLSI Limited Partner, ALFI L.P., the ALFI General Partner or the ALFI
Limited Partner 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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(c) World Omni, on its own behalf and on behalf of ALFI, WOLSI and the
Origination Trustee, each to the extent indicated below, represents and warrants
to, and agrees with, each of the Underwriters that:
(i) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise set forth therein, (A) there has been no material adverse
change or development resulting in a prospective material adverse
change in the condition, financial or otherwise, or in the earnings or
business affairs of the Origination Trustee (in its capacity as trustee
of the Origination Trust) or World Omni and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of
business and (B) there have been no transactions entered into by the
Origination Trustee (in its capacity as trustee of the Origination
Trust), World Omni or any other subsidiary of World Omni, other than
those in the ordinary course of business, that are material with
respect to the condition, financial or otherwise, or the earnings or
business affairs of the Origination Trustee (in its capacity as trustee
of the Origination Trust) or World Omni and its subsidiaries considered
as one enterprise.
(ii) World Omni has been duly incorporated, is current in the
payment of taxes to the State of Florida and fees to the Florida
Department of State and its status is "active"; World Omni has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter
into and to perform its obligations under this Agreement, the
Partnership Agreements and each Basic Document to which World Omni is a
party or by which it may be bound; and World Omni is duly qualified as
a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify would not have a
material adverse effect on its condition, financial or otherwise, or
its earnings, business affairs or business prospects or its ability to
perform its obligations under each Basic Document to which it is a
party or by which it may be bound.
(iii) Each of WOLSI and ALFI has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware, in each case with 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 each Basic Document to which it is a party or by
which it may be bound; each of WOLSI and ALFI is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on its condition, financial or otherwise, or
its earnings or business affairs; all of the issued and outstanding
capital stock of each of WOLSI and ALFI is owned by World Omni, free
and clear of Liens and neither WOLSI nor ALFI has any subsidiaries.
(iv) The Origination Trust has been qualified as a business
trust under applicable Alabama law and all filings required to be made
in respect of the Origination
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Trust's status as a business trust under the laws of each state in
which such filings are required have been made and are in full force
and effect on the Closing Date, except where the failure so to file
would not have a material adverse effect on its condition, financial or
otherwise, or its earnings, business affairs or business prospects or
its ability to perform its obligations under each Basic Document to
which it is a party or by which it may be bound.
(v) World Omni is not in violation of its organizational or
charter documents, bylaws or either Partnership Agreement, or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it may be bound, or to which any of its property
or assets is subject; the execution, delivery and performance by World
Omni of this Agreement, each Partnership Agreement and each Basic
Document to which it is a party and the consummation of the
transactions contemplated herein and therein and compliance by it with
its obligations hereunder and thereunder have been duly and validly
authorized by all necessary action (corporate or otherwise) and will
not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any Lien (except as permitted
by the Basic Documents) upon any of its properties or assets pursuant
to, any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it may be
bound, or to which any of its properties or assets is subject, nor will
such action result in any violation of the provisions of its charter or
organizational documents, bylaws or each Partnership Agreement, as the
case may be, or any applicable law, administrative regulation or
administrative or court decree.
(vi) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of World Omni, threatened against or affecting
World Omni or the Origination Trustee (in its capacity as trustee of
the Origination Trust), 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, either Partnership Agreement or any Basic Document to which
it is a party or by which it may be bound; and all pending legal or
governmental proceedings to which World Omni or the Origination Trustee
(in its capacity as trustee of the Origination Trust) is a party or of
which any of their respective properties or assets is the subject that
are not described in the Prospectus, including ordinary routine
litigation incidental to their respective businesses, are, considered
in the aggregate, not material.
(vii) No authorization, approval or consent of any court,
governmental authority or agency or any other Person is necessary in
connection with the execution, delivery and performance by World Omni,
ALFI, WOLSI or the Origination Trustee (in its capacity as trustee of
the Origination Trust) of this Agreement, each applicable Partnership
Agreement or any Basic Document to which any of them is a party or the
consummation by any of them of the transactions contemplated hereby or
thereby, except
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such authorizations, approvals or consents as will have been obtained
and are in full force and effect as of the Closing Date.
(viii) Each of World Omni and the Origination Trustee (in its
capacity as trustee of the Origination Trust) possesses all material
certificates, authorities, licenses or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies as
are necessary to conduct the business now operated by it, and neither
of such entities has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority, license
or permit that, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely
affect its condition, financial or otherwise, or its earnings, business
affairs or business prospects or its ability to perform its obligations
under each Basic Document to which it is a party or by which it may be
bound.
(ix) This Agreement has been duly executed and delivered by
World Omni.
(x) As of the Closing Date, each Basic Document to which
World Omni is a party and each Partnership Agreement has been duly
executed and delivered by World Omni and, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, will constitute the legal, valid and binding agreement of
World Omni, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting enforcement
of creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(xi) At the time of execution and delivery of the 1997-B
SUBI Supplement on the Closing Date, the Origination Trustee on behalf
of the Origination Trust will have good and marketable title to the
Initial Contracts, the related Contract Rights, the Initial Leased
Vehicles and other rights relating to the Initial Contracts and the
Initial Leased Vehicles being allocated as SUBI Assets pursuant
thereto, free and clear of Liens (except as permitted by the Basic
Documents and other than the administrative lien in favor of Bank of
America Trust Company of Florida, N.A. or AL Holding Corp. (the
"Administrative Lien")) and will not have assigned to any Person any of
its right, title or interest in any such Contracts, Contract Rights,
Leased Vehicles or other rights, or shall have obtained the release of
any such prior assignment.
(xii) On each Transfer Date the Origination Trustee on behalf
of the Origination Trust will have good and marketable title to the
related Subsequent Contracts, the related Contract Rights, the related
Subsequent Leased Vehicles and other rights relating to such Subsequent
Contracts and Subsequent Leased Vehicles being allocated as SUBI Assets
pursuant thereto, free and clear of Liens (other than the
Administrative Lien), and will not have assigned to any Person any of
its right, title or interest in any such Subsequent Contracts, Contract
Rights, Subsequent Leased Vehicles or other rights, or shall have
obtained the release of any such prior assignment.
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(xiii) As of the Closing Date, the representations and
warranties of World Omni in the Partnership Agreements and in each
Basic Document to which it is a party and in Officer's Certificates of
World Omni delivered on the Closing Date or on each Transfer Date, as
the case may be, will be true and correct, and each Underwriter may
rely on such representations and warranties as if they were set forth
herein in full.
(xiv) At or prior to the Closing Date, World Omni, as
Servicer under the Servicing Agreement, has made the appropriate
allocation of assets within the estate of the Origination Trust as the
SUBI Assets required by the SUBI Trust Agreement.
(xv) As of the Closing Date, the Origination Trustee has not
assigned to any Person any of its right, title or interest in any of
the Contracts, Contract Rights, Leased Vehicles or other related rights
constituting the SUBI Assets, or has obtained the release of each such
prior assignment.
(d) Any Officer's Certificate signed by any officer of the Transferor,
World Omni, WOLSI, ALFI or ALFI L.P. and delivered to the Representative or
counsel for the Underwriters shall be deemed a representation and warranty of
the Transferor, World Omni, WOLSI, ALFI or ALFI L.P., as the case may be, to
each Underwriter as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Class A 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 each Class of Class A Notes set
forth in Schedule I opposite the name of such Underwriter, at a purchase price
equal to the following percentages of the aggregate initial principal balances
thereof, (i) in the case of the Class A-1 Notes, [ ]%, (ii) in the case of the
Class A-2 Notes, [ ]%, (iii) in the case of the Class A-3 Notes, [ ]% and (iv)
in the case of the Class A-4 Notes, [ ]%.
Each Class of Class A Notes will initially be represented by one or
more notes registered in the name of Cede & Co., as the nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of each
Class of Class A Notes will be represented by book entries on the records of DTC
and participating members thereof. Definitive instruments evidencing the Class A
Notes will be available only under the limited circumstances specified in the
Indenture.
The Transferor will deliver the Class A 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 Xxxxx, Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, XX 00000 (or at such other location as agreed upon among the
Transferor, ALFI L.P., World Omni and the Representative) at 10:00 A.M.,
Chicago, Illinois time, on _________, 1997, or at such other time not later
than five full business days thereafter, as the Transferor, ALFI L.P., World
Omni and the Representative determine, such time being herein referred to as
the "Closing Date". The instruments evidencing the Notes and the
Transferor Certificate will be made available for inspection at the above
offices of Xxxxx, Xxxxx & Xxxxx
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(or at such other location agreed upon among the Transferor, ALFI L.P., 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"), the Transferor, ALFI L.P., World Omni and the
Underwriters have agreed that the Closing Date will be not less than five
business days following the date hereof. The Transferor, ALFI L.P., World Omni
and the Underwriters further agree that upon receipt by an investor who has
received an electronic Prospectus or a request by such investor's representative
(whether such request is delivered to an Underwriter, the Transferor or ALFI
L.P.) during the period during which there is an obligation to deliver a
Prospectus, the Underwriters will promptly deliver or cause to be delivered
without charge, a paper copy of the Prospectus.
4. Certain Agreements of the Underwriters.
(a) It is understood that the Underwriters propose to offer the
Class A Notes for sale to the public as set forth in the Prospectus.
(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 has been paid in full, and (ii) all obligations due under any
other Securitized Financing have been paid in full, the Underwriters will not
institute against, or join any other Person in instituting against, ALFI L.P.
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 Class A 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 Class A 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 Class A Notes.
5. Certain Agreements of the Transferor, ALFI L.P. and World Omni. Each
of the Transferor, ALFI L.P. and World Omni 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 and ALFI L.P. will file the
Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by the
Representative, subparagraph (4)) of Rule 424(b), not later than the
second business day following the execution and delivery of this
Agreement. The Transferor and ALFI L.P. will advise the Representative
promptly of any such filing pursuant to Rule 424(b).
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(b) The Transferor and ALFI L.P. 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. The
Transferor and ALFI L.P. 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 and ALFI L.P.
will use their best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Class A
Notes is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it is necessary at any time to amend or supplement the Prospectus
to comply with the Act, the Transferor and ALFI L.P. promptly will
prepare and file, or cause to be prepared and filed, with the
Commission an amendment or supplement that will correct such statement
or omission or effect such compliance. Neither the consent of the
Representative to, nor the delivery by any Underwriter of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Transferor and ALFI L.P. will
cause the Indenture Trustee to make generally available to the Class A
Noteholders an earnings statement covering a period of at least 12
months beginning after the Effective Date that will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter that
includes the Effective Date, except that, if such fourth fiscal quarter
is the last quarter of the fiscal year of the Transferor and ALFI L.P.,
"Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(e) The Transferor and ALFI L.P. will furnish to the
Representative copies of the registration statement as originally filed
with the Commission and each amendment thereto (in each case at least
one of which will be signed and will include all exhibits), each
related preliminary prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as the Representative may reasonably request.
(f) The Transferor and ALFI L.P. will arrange for the
qualification of the Class A 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 Class A Notes, provided that neither the
Transferor nor ALFI L.P. shall be obligated to qualify to do business
nor become subject to service
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of process generally, but only to the extent required for such
qualification, in any jurisdiction in which it is not currently so
qualified.
(g) So long as any Notes are outstanding, the Transferor,
ALFI L.P. 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 each becomes available, copies of (i) each
report relating to the Notes delivered to Noteholders pursuant to
Section 3.06 of the Securitization Trust Agreement, (ii)
the annual statement as to compliance and the annual statement of a
firm of independent public accountants furnished pursuant to Sections
3.02, 3.03 or 10.02 of the Servicing Agreement, (iii) each certificate
or notice delivered by the Servicer pursuant to Section 10.03 of the
Servicing Agreement, (iv) each periodic report required to be filed by
the Transferor or ALFI L.P. 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, ALFI, WOLSI,
ALFI L.P., the Origination Trustee (in its capacity as trustee of the
Origination Trust), the Origination Trust, the Trust, the Notes or
the Transferor Certificate as the Representative may reasonably
request from time to time.
(h) The Transferor, ALFI L.P. and World Omni will pay all
expenses incident to the performance of their respective obligations
under this Agreement, including without limitation, (i) expenses
incident to the word processing, printing, reproduction and
distribution 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 Origination Trustee, the Owner Trustee,
the Indenture Trustee, the Trust Agent, the Insurer and their
respective counsel, (iii) the fees and disbursements of counsel and the
independent public accountants of the Transferor, ALFI L.P., World Omni
and the Insurer, (iv) the fees charged by each of Xxxxx'x Investors
Service, Inc. ("Moody's"), Standard & Poor's ("Standard & Poor's")
and Fitch Investors Service, L.P. ("Fitch and, together with Moody's,
and Standard & Poor's, the "Rating Agencies") in connection with
the rating of each Class of Notes, (v) the fees of DTC in
connection with the book-entry registration of the Class A Notes and
(vi) expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) by the
Underwriters, and will reimburse the Underwriters for any 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 Class A 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 or clause (i) or clause (ii) of
Section 10 hereof, the Transferor, ALFI L.P. and World Omni shall
reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel to the
Underwriters.
(i) For a period of 45 days from the date hereof, none of the
Transferor, ALFI L.P., 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
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announce the offering of, in a public or private transaction, any other
collateralized securities similar to the Class A Notes.
(j) So long as any Class A Notes are outstanding, the
Transferor, ALFI L.P. 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, the Origination
Trustee or either Rating Agency by counsel to the Transferor, ALFI L.P.
or World Omni relating to the transactions contemplated by this
Agreement or the Basic Documents.
(k) To the extent, if any, that the rating provided with
respect to any Class of Class A Notes by any Rating Agency or the
Insurer is conditional upon the furnishing of documents or the taking
of any other actions by the Transferor, ALFI L.P. or World Omni, the
Transferor, ALFI L.P. 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 Class A Notes will be
subject to the accuracy of the respective representations and warranties on the
part of the Transferor, ALFI L.P. and World Omni herein, to the accuracy of the
statements of the respective officers of the Transferor, ALFI L.P. and World
Omni made pursuant to the provisions hereof, to the performance by the
Transferor, ALFI L.P. 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, ALFI L.P.
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 Xxxxxx Xxxxxxxx LLP ("Xxxxxx Xxxxxxxx") 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 Closing Date, the Representative, ALFI L.P. and the Transferor shall have
received a letter or letters, dated as of the Closing Date, from Xxxxxx
Xxxxxxxx, 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
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proceedings for that purpose shall have been instituted or, to the knowledge of
the Transferor, ALFI L.P., 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 WOLSI General Partner on behalf of the Transferor, (ii) the ALFI General
Partner on behalf of ALFI L.P. and (iii) World Omni, each dated the Closing
Date, in which such officer shall state, in the case of (A) the Transferor and
ALFI L.P., that (1) the representations and warranties of the Transferor or ALFI
L.P., as the case may be, in each Basic Document to which it is a party and in
this Agreement are true and correct, (2) to the best knowledge of such officer
after reasonable investigation, the Transferor or ALFI L.P., 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 ALFI L.P.,
as the case may be, except as set forth in or contemplated by the Prospectus and
(B) World Omni, that (1) the representations and warranties of World Omni in
each Basic Document to which it is a party and in this Agreement are true and
correct, (2) to the best knowledge of such officer after reasonable
investigation, World Omni has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder and (3) subsequent
to the date of this Agreement, there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of World Omni except as set forth in or contemplated by the
Prospectus.
(d) The Representative shall have received a certificate, dated the
Closing Date, of a Vice President or another duly authorized officer of the
Insurer, satisfactory in form and substance to the Representative and counsel to
the Underwriters, substantially to the effect that, among other things, (i) the
information provided by the Insurer for use in the Registration Statement and
the Prospectus is true and correct in all material respects and (ii) since the
date of the financial statements of the Insurer included in the Prospectus,
there has been no change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Insurer that would have
a material adverse effect on the ability of the Insurer to meet its obligations
under the Residual Value Insurance Policy.
(e) The Representative shall have received:
(1) The favorable opinions of (A) Xxxxxxxx & Xxxxxxxx, counsel
to the Transferor, ALFI L.P. and World Omni, (B) Hand Xxxxxxxx, L.L.C.,
special Alabama counsel to the Transferor, ALFI L.P. and World Omni,
(C) English, XxXxxxxxx & X'Xxxxx, P.A., special Florida counsel to the
Transferor, ALFI L.P. and World Omni, (D) XxXxxxxxx, Will & Xxxxx,
special Illinois and New York counsel to the Transferor, ALFI L.P. and
World Omni, (E) Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to
the Transferor, ALFI L.P. and World Omni, (F) Xxxxxxx & Xxxxxxx L.L.C.,
special Georgia counsel to the Transferor, ALFI L.P. and World Omni and
(G) Xxxxxxxxxx Xxxxxxxx LLP, special North Carolina counsel to the
Transferor, ALFI L.P. and World
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Omni, in each case dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters, and,
in the aggregate substantially to the effect that:
(i) World Omni has been incorporated under
the Florida General Corporation Act, is current in the payment
of fees due to the Florida Department of State and its status
is active; World Omni has corporate power and authority to
own, lease and operate its properties, to conduct its business
as presently conducted and to enter into and perform its
obligations under this Agreement, each Partnership Agreement
and each Basic Document to which it is a party; to the best of
their knowledge, World Omni is duly qualified as a foreign
corporation to transact business and is in good standing in
Alabama, Georgia, North Carolina and South Carolina; and, to
the best of their knowledge, all of the issued and outstanding
capital stock of WOLSI and ALFI is owned by World Omni, free
and clear of Liens.
(ii) Each of WOLSI and ALFI has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with
corporate power and authority to own, lease and
operate its properties, to conduct its business as described
in the Registration Statement and to enter into and perform
its obligations under the related Partnership Agreement and
each Basic Document to which it is a party; to the best of
such counsel's knowledge and information, each of WOLSI and
ALFI is duly qualified as a foreign corporation to transact
business in Florida and Alabama; and the shares of issued and
outstanding capital stock of each of WOLSI and ALFI have been
duly authorized and validly issued and are fully paid and
non-assessable.
(iii) Each of the Transferor and ALFI L.P.
is duly qualified and registered as a foreign partnership to
transact business and is in good standing in Alabama and
Florida.
(iv) This Agreement has been duly
authorized, executed and delivered by WOLSI, as the WOLSI
General Partner, ALFI, as the ALFI General Partner and World
Omni.
(v) The Origination Trust has been
qualified as a business trust under applicable Alabama law
and what is commonly known as a business trust under Chapter
609 of the Florida Statutes, and all filings required to be
made in respect of the Origination Trust's status as a
business trust under the laws of the States of Alabama and
Florida have been made and are in full force and effect on
the Closing Date.
(vi)(a) The Notes are in due and proper form,
all conditions precedent provided for in the Indenture
relating to the issuance, authentication and delivery of the
Notes have been complied with and the Notes have been duly
and validly authorized and, when executed,
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issued, authenticated and delivered pursuant to the Indenture,
and, in the case of the Class A Notes, when delivered to the
Underwriters against payment of the consideration set forth in
this Agreement, will be duly and validly issued and
outstanding and entitled to the benefits of the Indenture.
(b) The Transferor Certificate is in due and proper
form, all conditions precedent provided for in the
Securitization Trust Agreement relating to the issuance,
authentication and delivery of the Transferor Certificate have
been complied with and the Transferor Certificate has been
duly and validly authorized and, when executed, issued,
authenticated and delivered pursuant to the Securitization
Trust Agreement, will be duly and validly issued and
outstanding and entitled to the benefits of the Securitization
Trust Agreement.
(vii) Each Partnership Agreement and each Basic
Document to which the Transferor, WOLSI, ALFI, ALFI L.P. and
World Omni is a party has been duly authorized, executed and
delivered by the Transferor, WOLSI, ALFI, ALFI L.P. and World
Omni, as the case may be, and, assuming the due authorization,
execution and delivery thereof by the other parties thereto,
will constitute the legal, valid and binding agreement of such
entity 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). (In rendering such opinion as to the
enforceability of a Basic Document, counsel shall state that
in the event of a conflict of law arising under such Basic
Document, the governing law of such Basic Document will apply
without regard to any otherwise applicable principles of
conflicts of laws in the related state).
(viii) To the best knowledge and information of
such counsel, (A) there are no legal or governmental
proceedings pending or threatened that are required to be
disclosed in the Registration Statement other than those
disclosed therein and (B) all pending legal or governmental
proceedings to which the Transferor, WOLSI, ALFI, ALFI L.P.,
the Origination Trustee (in its capacity as trustee of the
Origination Trust) or World Omni is a party or to which any of
their respective properties or assets is subject that are not
described in the Registration Statement, including ordinary
routine litigation incidental to the business of such entity,
are, considered in the aggregate with respect to the
Transferor, WOLSI, ALFI, ALFI L.P., the Origination Trustee
(in its capacity as trustee of the Origination Trust) or World
Omni as the case may be, not material.
(ix) The statements in the Prospectus under
the captions "Summary", "Risk Factors", "Description of the
Notes", "Security for the Notes", "The Residual Value
Insurance Policy" and "Additional Document Provisions",
insofar as such statements purport to summarize certain terms
or provisions of the
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SUBI Interest, the Retained SUBI Interest, the Investor Notes
and the Transferor Certificate, the Basic Documents, the
Residual Value Insurance Policy and the Contingent and Excess
Liability Insurance Policies, provide a fair summary of such
provisions, and the statements in the Prospectus under "The
Origination Trust -- Allocation of Origination Trust
Liabilities", "Risk Factors -- Risks Associated With Consumer
Protection Laws", "-- Risks Associated With ERISA
Liabilities", "-- Risks Associated With Vicarious Tort
Liability" and "-- Risks in the Event of an Insolvency of
World Omni; Substantive Consolidation with World Omni",
"Additional Document Provisions", "Certain Legal Aspects of
the Origination Trust and the SUBI", "Certain Legal Aspects of
the Contracts and the Leased Vehicles" 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 or the laws of
the States of Florida, Georgia or North Carolina have been
prepared or reviewed by such counsel and are correct in all
material respects.
(x) To the best knowledge and information of
such counsel, (A) there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed as exhibits thereto,
(B) the descriptions thereof or references thereto are correct
and (C) no default exists in the due performance or observance
of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so described,
referred to or filed.
(xi) No authorization, approval, consent or
order of any court or governmental authority or agency is
required in connection with the issuance of the SUBI
Certificate, the Retained SUBI Certificate, the Notes or the
Transferor Certificate, the offering of the Notes or the sale
of the Class A Notes to the Underwriters, except those
authorizations, approvals, consents and orders which have
previously been obtained and are in full force and effect as
of the Closing Date; provided, that such counsel need express
no opinion as to state securities laws.
(xii) None of (A) the execution, delivery and
performance by the Transferor, ALFI L.P. or World Omni of this
Agreement or by the Transferor, WOLSI, ALFI, ALFI L.P. or
World Omni of any applicable Partnership Agreement or any
Basic Document to which such entity is a party, (B) the
consummation of the transactions contemplated herein or
therein by any such entity or (C) the fulfillment of the terms
hereof or thereof by any such entity 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 (except as permitted by the Basic
Documents) upon any property or assets of such entity pursuant
to the terms of (i) the organizational, charter or partnership
documents or bylaws of such entity, (ii)
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to the best knowledge and information of such counsel and
except as otherwise provided in the Basic Documents, any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which such entity is a party or by which
it may be bound, or to which any of the properties or assets
of such entity is subject or (iii) any applicable law, statute
or regulation or, to the best knowledge and information of
such counsel, any judgment, order or decree applicable to such
entity of any court, regulatory body or other governmental
instrumentality having jurisdiction over such entity except,
in the case of clauses (ii) and (iii) above, for defaults,
breaches or violations that do not, in the aggregate, have a
material adverse effect on such entity.
(xiii) None of the Transferor, WOLSI, ALFI, ALFI
L.P., World Omni, the Origination Trust or the Trust is an
"investment company" or is "controlled" by an "investment
company" as such terms are defined in the Investment Company
Act.
(xiv) The Registration Statement has become
effective under the Act, and, to the best knowledge and
information of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated under the Act, and the
Registration Statement and the Prospectus, and each amendment
or supplement thereto, as of their respective effective or
issue dates, complied as to form in all material respects with
the requirements of the Act, the Trust Indenture Act of 1939,
as amended, and the Rules and Regulations. Such counsel has
no reason to believe that either the Registration Statement,
at the Effective Time, or any such amendment or supplement,
as of its effective date, contained any untrue statement of
a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, at
the date of this Agreement (or any such amendment or
supplement, as of its respective date) or at the Closing Date
included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it
being understood that such counsel need express no opinion as
to the financial statements or other financial or statistical
data contained in the Registration Statement or the
Prospectus.
(xv) Neither the SUBI Trust Agreement nor the
Securitization Trust Agreement is required to be qualified
under the Trust Indenture Act of 1939, as amended.
(xvi) The Indenture and the Backup Security
Agreement create a valid first priority perfected security
interest in favor of the Indenture Trustee, for the benefit
of the Noteholders, in the SUBI Collection Account,
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the Distribution Account, the Reserve Fund and the proceeds
thereof (including Permitted Investments) for so long as they
are held in such accounts.
(xvii) The transfer of the SUBI Certificate by
ALFI L.P. to the Transferor constitutes a sale of the SUBI
Certificate and the SUBI Assets evidenced thereby. The
transfer of the SUBI Certificate by the Transferor to the
Trust (A) constitutes a sale of the SUBI Certificate and the
SUBI Assets evidenced thereby or (B) if such transfer does not
constitute a sale, then the Securitization Trust Agreement and
the delivery to and possession by the Owner Trustee of the
SUBI Certificate creates a valid first priority perfected
security interest (subject to the rights of the Indenture
Trustee pursuant to the Indenture), for the benefit of the
Owner Trustee on behalf of the Noteholders and the holder of
the Transferor Certificate, in ALFI L.P.'s and the
Transferor's right, title and interest in the SUBI
Certificate. The Indenture and the delivery to and possession
by the Indenture Trustee of the SUBI Certificate creates a
valid first priority perfected security interest, for the
benefit of the Indenture Trustee on behalf of the
Noteholders, in the Trust's and the Owner Trustee's right,
title and interest in the SUBI Certificate.
(xviii) Each of the Transferor, WOLSI, ALFI, ALFI
L.P., World Omni and the Origination Trustee (in its capacity
as trustee of the Origination Trust) possesses such
certificates, authorities, licenses, permits and other
governmental authorizations issued by Alabama and Florida, in
the case of the Transferor, WOLSI, ALFI, ALFI L.P. and World
Omni, and by the States of Alabama, Florida, Georgia and North
Carolina, in the case of the Origination Trustee (on behalf of
the Origination Trust), materially necessary to conduct the
business now operated by it, and none of such entities has
received any notice of proceedings relating to the revocation
or modification of any such certificate, authority, license or
permit that, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and
adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of such
entity.
(xix) The choice of law provisions contained in
each dealer agreement between World Omni and a dealer that
originates lease contracts comprising Origination Trust Assets
are valid and enforceable under the laws of Alabama, Georgia
and North Carolina.
(xx) The assignment provisions contained in
each dealer agreement between World Omni and a dealer that
originates lease contracts comprising Origination Trust Assets
are valid and enforceable under the laws of the State in which
such dealer originates such lease contracts.
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(xxi) Assuming the chief executive office of
the Origination Trustee is located in the State of Illinois
and the timely filing of an appropriate UCC Financing
Statement with the Secretary of the State of Illinois, the
grant by the Origination Trustee to the Indenture Trustee of
a security interest in the 1997-B Leases pursuant to the Back
up Security Agreement will create a valid, first priority
perfected security interest in the 1997-B Leases.
(2) The favorable opinion of Hand Xxxxxxxx, L.L.C., special
Alabama counsel to the Transferor, ALFI L.P. and World Omni, dated the
Closing Date and satisfactory in form and substance to the
Representative and counsel to the Underwriters, and substantially to
the effect that:
(i) The SUBI Certificate and the Retained
SUBI Certificate have been duly and validly authorized and,
when executed, issued, authenticated and delivered pursuant to
the SUBI Trust Agreement, will be duly and validly issued and
outstanding and entitled to the benefits of the SUBI Trust
Agreement.
(ii) The lease contracts originated in
Alabama are "true leases" for purposes of Alabama law.
(iii) Assuming the chief executive office of
the Origination Trustee is located in the State of Alabama
and the timely filing of an appropriate UCC Financing
Statement with the Secretary of the State of Alabama, the
grant by the Origination Trustee to the Indenture Trustee of
a security interest in the 1997-B Leases pursuant to the
Backup Security Agreement will create a valid, first priority
perfected security interest in the 1997-B Leases.
(3) The favorable opinion of Xxxxxxxx, Xxxxxx & Finger,
special Delaware counsel to the Transferor, ALFI L.P. 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:
(i) Each of the Transferor and ALFI L.P. has
been duly formed and is validly existing in good standing as a
limited partnership under the Delaware Act with all requisite
power under the Delaware Act and the related Partnership
Agreement to enter into and perform its obligations under this
Agreement, the related Partnership Agreement and each Basic
Document to which it is a party.
(ii) The execution and delivery of and
performance under the related Partnership Agreement and each
Basic Document to which the Transferor or ALFI L.P. is a party
(A) have been duly authorized by all requisite partnership
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action on the part of the Transferor or ALFI L.P., (B) are
permitted under the Delaware Act and the related Partnership
Agreement and (C) will not violate any Delaware statute or
regulation; provided that such counsel need express no opinion
regarding state securities laws.
(iii) No consent, approval, authorization or
order of, or registration or filing or declaration with, any
Delaware court or governmental agency or body is required in
connection with either the Transferor's or ALFI L.P.'s
execution or delivery of or performance under the related
Partnership Agreement and each Basic Document to which it is a
party.
(4) The favorable opinion of English, XxXxxxxxx & X'Xxxxx,
P.A., special Florida counsel to the Transferor, ALFI L.P. 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:
(i) The Class A Notes will constitute
"indebtedness" for purposes of Florida income tax law, and the
Class B Notes should constitute "indebtedness" for purposes of
Florida income tax law.
(ii) 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.
(iii) The statements in the Prospectus under
"Material Income Tax Considerations -- Florida Income
Taxation", 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.
(iv) The lease contracts originated in
Florida are "true leases" for purposes of Florida law.
(v) Assuming that all other elements
necessary to render a lease contract legal, valid, binding and
enforceable were present in connection with the execution,
delivery and performance of each lease contract, and assuming
that no action was taken in connection with the execution,
delivery and performance of each lease contract that would
give rise to a defense to the legality, validity, binding
effect and enforceability of such lease contract, nothing in
the forms of such lease contracts, as attached as an Exhibit
to the Servicing Agreement, would render such lease contract
other than legal, valid, binding and enforceable; assuming the
validity, binding effect and enforceability in all other
respects, such forms of lease contracts are in sufficient
compliance with
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applicable federal and Florida state consumer protection laws
so as not to be rendered void or voidable at the election of
the related lessee.
(5) The favorable opinion of Cadwalader, Xxxxxxxxxx & Xxxx,
special federal income tax counsel to the Transferor and ALFI
L.P., dated the Closing Date and satisfactory in form and substance to
the Representative and counsel to the Underwriters, to the effect that
(i) the Class A Notes will constitute "indebtedness" for federal
income tax purposes and the Class B Notes should constitute
"indebtedness" for federal income tax purposes and (ii) the statements
in the Prospectus under the captions "Summary -- Tax Status" and
"Material Income Tax Considerations -- Federal Taxation", to the
extent that they constitute matters of law, summaries of legal matters
or legal conclusions, have been reviewed by such counsel and are
correct in all material respects.
(6) 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, ALFI L.P. or World Omni to the Owner
Trustee, the Indenture Trustee, the Origination Trustee or either Rating Agency.
(7) The favorable opinion of Xxxxxx & Whitney, counsel to the
Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel to the Underwriters, to the
effect that:
(i) U.S. Bank has been duly incorporated and
is validly existing as a national banking association, in good
standing under the laws of United States with full power and
authority (corporate and other) to own its properties and
conduct its business, as presently conducted by it, and to
enter into and perform its obligations as Indenture Trustee
and Trust Agent under each Basic Document to which U.S. Bank
is a party.
(ii) Each Basic Document to which U.S. Bank is
a party has been duly authorized, executed and delivered by
U.S. Bank and, assuming the due authorization, execution and
delivery thereof by the other parties thereto, will constitute
a legal, valid and binding obligation of U.S. Bank enforceable
in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting enforcement of
creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(iii) The Notes have been duly authenticated
and delivered by the Indenture Trustee.
(iv) Neither the execution nor delivery by
U.S. Bank of each Basic Document to which it is a party nor
the consummation of any of the transactions by U.S. Bank
contemplated thereby require the consent or approval of, the
giving of notice to, the registration with or the taking of
any other action
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with respect to, any governmental authority or agency under
any existing federal or state law governing the banking or
trust powers of U.S. Bank.
(v) The execution and delivery of each Basic
Document to which U.S. Bank is a party and the performance by
U.S. Bank of its terms do not conflict with or result in a
violation of (A) any federal or state law or regulation
governing the banking or trust powers of U.S. Bank, (B) the
Articles of Association or By-Laws of U.S. Bank or (C) to the
best knowledge of such counsel, any indenture, lease or
material agreement to which U.S. Bank is a party or to which
its assets are subject.
(vi) All of the issued and outstanding
capital stock of the Origination Trustee is owned by U.S.
Bank, free and clear of any Liens.
(8) The favorable opinion of Xxxxxx & Xxxxxxx, counsel to the
Origination Trustee, dated the Closing Date and satisfactory in form
and substance to the Representative and counsel for the Underwriters,
to the effect that:
(i) The Origination Trustee has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Alabama with corporate
power and authority to own, lease and operate its properties,
to conduct its business as described in the Registration
Statement and to enter into and perform its obligations under
each Basic Document to which it is a party; to the best of
their knowledge and information, the Origination Trustee is
duly qualified as a foreign corporation to transact business
and is in good standing in Georgia, Florida, North Carolina,
South Carolina, California and Illinois; and the shares of
issued and outstanding capital stock of the Origination
Trustee have been duly authorized and validly issued, are
fully paid and non-assessable and are owned by U.S. Bank.
(ii) Each Basic Document to which the
Origination Trustee is a party has been duly authorized,
executed and delivered by the Origination Trustee and,
assuming the due authorization, execution and delivery thereof
by the other parties thereto, will constitute legal, valid and
binding obligations of the Origination Trustee enforceable in
accordance with their respective terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws
affecting enforcement of creditors' rights generally and by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(iii) The SUBI Certificate and the Retained
SUBI Certificate have been duly executed, authenticated and
delivered by the Origination Trustee.
(iv) Neither the execution nor delivery by
the Origination Trustee of each Basic Document to which it is
a party nor the consummation of any of the transactions by the
Origination Trustee contemplated thereby require
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the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with
respect to, any Person or entity, including any governmental
authority or agency under any existing federal or state law.
(v) The execution and delivery of each Basic
Document to which the Origination Trustee is a party and the
performance by the Origination Trustee of their respective
terms do not conflict with or result in a violation of its
articles of incorporation or bylaws of the Origination Trustee
or, to the best of such counsel's knowledge, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party, by which it may be bound or
to which any of its property or assets is subject.
(9) The favorable opinion of [name] [title] of the Insurer,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel to the Underwriters, substantially in the
form of the draft opinion previously delivered to the Representative,
to the effect that, among other things, (i) the Insurer has been duly
incorporated and is in good standing in the jurisdiction of its
incorporation, (ii) the Insurer has the corporate power and authority
to issue, execute, deliver and perform its obligations under the
Residual Value Insurance Policy, (iii) no consent, approval,
authorization or order of, or registration or filing or declaration
with, any entity is required in connection with the issuance of the
Residual Value Insurance Policy, (iv) the Residual Value Insurance
Policy is enforceable in accordance with its terms, (v) the Residual
Value Insurance Policy is not required to be registered under the Act
and (vi) although the information in the Prospectus under "The Residual
Value Insurance Policy" is limited and does not purport to provide the
scope of disclosure required to be included in a prospectus with
respect to a registrant under the Act in connection with the public
offering of securities of such registrant, such counsel has no reason
to believe that the information in the Prospectus under "The Residual
Value Insurance Policy" contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(10) The favorable opinion of Ballard, Spahr, Xxxxxxx &
Ingersoll, counsel to the Owner Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel
to the Underwriters, to the effect that:
(i) PNC Bank has been duly incorporated and is
validly existing as a Delaware banking corporation, in good
standing under the laws of the State of Delaware with full
power and authority (corporate and other) to own its
properties and conduct its business, as presently conducted by
it, and to enter into and perform its obligations as Owner
Trustee under each Basic Document to which PNC Bank is a
party; (x) to the best of such counsel's knowledge and
information, the Owner Trustee is duly qualified as a foreign
corporation to transact business and is in good standing in
Georgia, Florida, Alabama, North Carolina and South Carolina.
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(ii) Each Basic Document to which PNC Bank is
a party has been duly authorized, executed and delivered by
PNC Bank and, assuming the due authorization, execution and
delivery thereof by the other parties thereto, will constitute
a legal, valid and binding obligation of PNC Bank enforceable
in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting enforcement of
creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(iii) Each Note has been duly executed and
delivered by the Owner Trustee. The Transferor Certificate
has been duly executed, authenticated and delivered by the
Owner Trustee.
(iv) Neither the execution nor delivery by PNC
Bank of each Basic Document to which it is a party nor the
consummation of any of the transactions by PNC Bank
contemplated thereby require the consent or approval of, the
giving of notice to, the registration with or the taking of
any other action with respect to, any Person or entity,
including any governmental authority or agency under any
existing federal or state law.
(v) The execution and delivery of each Basic
Document to which PNC Bank is a party and the performance by
PNC Bank of its terms do not conflict with or result in a
violation of (A) any federal or state law or regulation
governing the banking or trust powers of PNC Bank, (B) the
Articles of Association or By-Laws of PNC Bank or (C) to the
best knowledge of such counsel, any indenture, lease or
material agreement to which PNC Bank is a party or to which
its assets are subject.
(11) The favorable opinion of Xxxxx, Xxxxx & Xxxxx, counsel
for the Underwriters, dated the Closing Date, with respect to the
existence of the Transferor, ALFI L.P. and World Omni, the validity of
the Notes and the Transferor Certificate and such other related
matters as the Representative shall request. In rendering such
opinion, Xxxxx, Xxxxx & Xxxxx may rely on the opinions of (i) Hand
Xxxxxxxx, L.L.C., as to all matters of Alabama law, (ii) Xxxxxxxx,
Xxxxxx & Finger and Ballard, Spahr, Xxxxxxx & Ingersoll, as to all
matters of Delaware law, (iii) English, XxXxxxxxx & X'Xxxxx, P.A., as
to all matters of Florida law and (iv) XxXxxxxxx, Will & Xxxxx and/or
Xxxxxx & Whitney, as to all matters of Illinois law, which opinions
shall be satisfactory in form and substance to the Representative and
counsel for the Underwriters.
(f) The Insurer shall have issued the Residual Value Insurance
Policy.
(g) Each Class of Class A Notes shall be rated in the highest
rating category by each of Xxxxx'x and Standard & Poor's and the Class B Notes
shall be rated at least Baa2 by Xxxxx'x and at least A- by Standard & Poor's.
(h) 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
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enabling them to pass upon the issuance of the Notes and the Transferor
Certificate and sale of the Class A Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the parties to the Basic Documents in connection
with the issuance of the Notes and the Transferor Certificate and sale of the
Class A Notes as herein contemplated shall be satisfactory in form and
substance to the Representative and counsel for the Underwriters.
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, ALFI L.P. 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.
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7. Indemnification and Contribution.
(a) The Transferor and World Omni will, jointly and severally,
indemnify and hold each Underwriter harmless against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any actual legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that neither the Transferor nor World Omni will be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Transferor or World Omni by any Underwriter through the Representative
specifically for use therein.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Transferor and World Omni against any losses, claims, damages
or liabilities to which the Transferor or World Omni may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Transferor or World Omni
by such Underwriter through the Representative specifically for use therein, and
will reimburse any actual legal or other expenses reasonably incurred by the
Transferor or World Omni in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of written notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
except and to the extent of any prejudice to such indemnifying party arising
from such failure to provide such notice. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the
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indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
8. Contribution.
(a) If the indemnification provided for in Section 7 hereof is
unavailable or insufficient to hold harmless an indemnified party under Section
7 (a) or (b) hereof, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in Section 7 (a) or (b) hereof 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 Class A Notes. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits 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 losses, claims, damages or
liabilities 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 and World Omni bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the 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 losses,
claims, damages or liabilities referred to above in this subsection (a) 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 subsection (a). Notwithstanding the
provisions of this subsection (a), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Class A 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. The Underwriters' obligations in this subsection (a) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
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(b) The obligations of the Transferor and World Omni under this Section
and Section 7 hereof shall be in addition to any liability which the Transferor
or World Omni may otherwise have and shall extend, upon the same terms and
conditions, to each Person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
and Section 7 hereof shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Transferor or World Omni, to each officer of
the Transferor who has signed the Registration Statement and to each Person, if
any, who controls the Transferor or World Omni within the meaning of the Act.
(c) Nothing in this Agreement will be construed to create, affect or in
any manner modify, the liability associated with any action arising under this
Agreement of an outside director (as defined in Section 21D(g) of the Exchange
Act) of any party hereto in respect of any loss, claim, damage or expense, with
the result that such liability varies or differs in any material respect from
the liability of an outside director as determined under Section 21D(g) of the
Exchange Act.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Transferor, ALFI L.P. 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, ALFI
L.P., World Omni or any of their respective representatives, officers or
directors or any controlling Person, and will survive delivery of and payment
for the Class A Notes. If for any reason the purchase of the Class A Notes by
the Underwriters is not consummated, the Transferor, ALFI L.P. 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, ALFI L.P. and the Underwriters pursuant to Section 7
hereof shall remain in effect. If the purchase of the Class A Notes by the
Underwriters is not consummated for any reason other than solely because of the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 10
hereof, the Transferor, ALFI L.P. 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
Class A Notes.
10. Termination of Agreement. The Representative may terminate this
Agreement, by notice to the Transferor, ALFI L.P. 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, World Omni, ALFI L.P., the Origination Trust or the Insurer, 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, ALFI
L.P., World Omni or the Insurer 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, ALFI
L.P., World Omni or the Insurer (other than an announcement with positive
implications of a possible upgrading, and no
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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, Florida, Illinois or Alabama
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 Class A 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
Class A 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 Class A
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 ALFI L.P. 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 Corporation, Eleven Madison Avenue, 6th Floor, New York, New York
10010-3629, Attention: Investment Banking Department, Transactions Advisory
Group (facsimile number (000) 000-0000); (ii) the Transferor, will be mailed,
delivered or sent by facsimile and confirmed to it at World Omni Lease
Securitization L.P., c/o World Omni Lease Securitization, Inc., 000 X.X. 00xx
Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx 00000, Attention: A. Xxxxxx Xxxxx, Vice
President and Corporate Treasurer (facsimile number (954)
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34
429-2685); (iii) ALFI L.P., will be mailed, delivered or sent by facsimile and
confirmed to it at Auto Lease Finance L.P., c/o Auto Lease Finance, Inc., 000
X.X. 00xx Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx 00000, Attention: A. Xxxxxx Xxxxx,
Vice President and Corporate Treasurer (facsimile number (000) 000-0000); or
(iv) World Omni, will be mailed, delivered or sent by facsimile and confirmed to
it at World Omni Financial Corp., 000 X.X. 00xx Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx
00000, Attention: A. Xxxxxx Xxxxx, Vice President and Corporate Treasurer
(facsimile number (000) 000-0000).
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling Persons referred to in Sections 7 and 8 hereof,
and no other Person will have any right or obligation hereunder.
14. 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.
15. 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.
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35
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,
ALFI L.P. and World Omni and the Underwriters in accordance with its terms.
Very truly yours,
WORLD OMNI LEASE SECURITIZATION L.P.
By: WORLD OMNI LEASE SECURITIZATION,
INC., its General Partner
By:
----------------------------------
Xxxxxxx X. Xxxxxxxxx
Assistant Treasurer
AUTO LEASE FINANCE L.P.
By: AUTO LEASE FINANCE INC.,
its General Partner
By:
----------------------------------
Xxxxxxx X. Xxxxxxxxx
Assistant Treasurer
WORLD OMNI FINANCIAL CORP.
By:
----------------------------------
Xxxxxxx X. Xxxxxxxxx
Assistant Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written.
CREDIT SUISSE FIRST BOSTON
CORPORATION
By:
------------------------------------------
Name:
Title:
For itself and as Representative of the other
Underwriters named in Schedule I hereto.
36
SCHEDULE I
Principal Amount Principal Amount Principal Amount Principal Amount
of Class A-1 of Class A-2 of Class A-3 of Class A-4
Name of Underwriter Notes Notes Notes Notes
------------------- ---------------- ---------------- ---------------- ----------------
Credit Suisse First Boston
Corporation............................. $ $ $ $
[ ]..............
Total.......................... $ $ $ $
================ ================ =============== ================
SI-I
