Exhibit 1.1
WORLD OMNI 1999-A AUTOMOBILE LEASE SECURITIZATION TRUST
$_________
Floating Rate Automobile Lease Asset Backed Notes, Class A-1
$_________
Floating Rate Automobile Lease Asset Backed Notes, Class A-2
$_________
Floating Rate Automobile Lease Asset Backed Notes, Class A-3
$_________
Floating Rate Automobile Lease Asset Backed Notes, Class A-4
UNDERWRITING AGREEMENT
August __, 1999
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
As Representative of the
Several Underwriters
World Financial Center
North Tower
New York, New York 10281-1201
Dear Sirs:
1. Introductory. World Xxxx Xxxxx Securitization L.P., a Delaware
limited partnership (the "Transferor"), Auto Lease Finance L.P., a Delaware
limited partnership ("ALF 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 $_________ aggregate principal amount of Floating Rate
Automobile Lease Asset Backed Notes, Class A-1 (the "Class A-1 Notes"),
$_________ aggregate principal amount of Floating Rate Automobile Lease Asset
Backed Notes, Class A-2 (the "Class A-2 Notes"), $_________ aggregate principal
amount of Floating Rate Automobile Lease Asset Backed Notes, Class A-3 (the
"Class A-3 Notes") and $_________ aggregate principal amount of Floating Rate
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 1999-A Automobile
Lease Securitization Trust (the "Trust") under the terms and conditions herein
contained. The Class A-1 Notes will bear an annual percentage rate equal to
One-Month LIBOR (as defined in the Prospectus) plus ___%. The Class A-2 Notes
will bear an annual percentage rate equal to One-Month LIBOR (as defined in the
Prospectus) plus ____%. The Class A-3 Notes will bear an annual percentage rate
equal to One-Month LIBOR (as defined in the Prospectus) plus ___%. The Class A-4
Notes will bear an annual percentage rate equal to One-Month LIBOR (as defined
in the Prospectus) plus ____%. The sole general partner of the Transferor is
World Omni Lease Securitization LLC (as successor by merger to World Omni Lease
Securitization, Inc.) ("XXXX LLC" or the "XXXX XX General Partner"), a Delaware
limited liability company 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 "XXXX XX Limited Partner"). The sole general partner of XXX
X.X. is Auto Lease Finance LLC (as successor by merger to Auto Lease Finance,
Inc.) ("ALF LLC" or the "ALF L.P. General Partner"), a Delaware limited
liability company and a wholly owned, special purpose finance subsidiary of
World Omni, and the sole limited partner of XXX X.X. is World Omni (in such
capacity, the "ALF L.P. Limited Partner").
Simultaneously with the issuance of the Class A Notes, the Transferor
will cause the Trust to issue $__________ 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 August 1, 1999 (the "Indenture"), between the Trust and
Xxxxxx Trust & Savings 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 or an affiliate thereof
will initially own the Class B Notes. The Transferor Interest will be evidenced
by a certificate (the "Transferor Certificate") issued pursuant to a
securitization trust agreement, dated as of August 1, 1999 (the "Securitization
Trust Agreement"), among the Transferor, Chase Manhattan Bank, Delaware 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 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"), payments to the Trust by Credit Lyonnais New York
Branch (the "Class A Cap Counterparty") pursuant to the interest rate cap
agreement (the "Class A Interest Rate Cap") between the Class A Cap Counterparty
and the Trust dated August __, 1999 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, dated as of August 1, 1999 (the "Residual Value Insurance
Policy") issued by American International Specialty Lines Insurance
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Company, a subsidiary of subsidiaries of American International Group, Inc. (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 and the other property of the Trust to the
Indenture Trustee to secure the Notes pursuant to the Indenture.
The SUBI will be evidenced by a certificate (the "SUBI Certificate")
issued to XXX X.X. 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
August 1, 1999 (collectively, the "SUBI Trust Agreement"), in each case among
ALF L.P., as initial grantor and initial beneficiary, VT Inc., as trustee (the
"Origination Trustee"), and (for certain limited purposes only) U.S. Bank
National Association, as trust agent (in such capacity, the "Trust Agent"). The
SUBI Certificate will be sold by XXX X.X. to the Transferor pursuant to the SUBI
certificate purchase and sale agreement, dated as of August 1, 1999 (the
"Certificate Purchase and Sale Agreement"), between the Transferor and ALF 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 amended and as supplemented by a servicing supplement
dated as of August 1, 1999 (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 Class A Interest Rate
Cap, the backup security agreement, dated as of August 1, 1999 (the "Backup
Security Agreement"), among World Omni, ALF 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 Amended and Restated Intercreditor Agreement,
dated as of December 31, 1997, among World Omni, XXX X.X., 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 Reimbursement and Indemnification
Agreement, dated as of August 1, 1999, between World Omni and the Insurer, are
referred to herein collectively as the "Basic Documents".
2. Representations and Warranties of the Transferor, XXX X.X. and World
Omni.
(a) Each of the Transferor, XXX X.X. 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. 333-74455), 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 ALF L.P. does not propose to amend such registration
statement and if any post-effective amendment to such
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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 ALF 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 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
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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 XXX X.X. 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 and the Residual
Value Insurance Policy conform in all material respects to the
descriptions thereof and the statements in relation thereto contained
in the Prospectus; the SUBI Certificate has 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, XXXX LLC, ALF LLC, XXX
X.X., 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 $1,160,510,742.
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(b) The Transferor and World Omni, as the XXXX XX Limited Partner, as
the XXX X.X. Limited Partner and on behalf of XXXX LLC as the XXXX XX General
Partner and on behalf of ALF LLC as the XXX X.X. 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, or business prospects, of the
Transferor, the XXXX XX General Partner, XXX X.X. or the ALF L.P.
General Partner, whether or not arising in the ordinary course of
business and (B) there have been no transactions entered into by the
Transferor, the XXXX XX General Partner, XXX X.X. or the ALF L.P.
General Partner, other than those in the ordinary course of their
respective businesses, that are material with respect to the
Transferor, the XXXX XX General Partner, XXX X.X. or the ALF L.P.
General Partner.
(ii) Each of the Transferor and XXX X.X. has been duly formed and
is validly existing as a limited partnership under the Delaware Revised
Uniform Limited Partnership Act, 6 Del. C. ? 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 ALF L.P. as a limited partnership have been made;
each of the Transferor and ALF 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, as amended by that certain Assignment of
General Partnership Interest and Amendment to Amended and Restated
Agreement of Limited Partnership dated as of September 23, 1998 (the
"XXXX LLC Partnership Agreement"), between the XXXX XX General Partner
and the XXXX XX Limited Partner or the Auto Lease Finance L.P. Amended
and Restated Limited Partnership Agreement, dated as of July 1, 1994 as
amended by that certain Assignment of General Partnership Interest and
Amendment to Amended and Restated Agreement of Limited Partnership
dated as of September 23, 1998 (the "ALF LLC Partnership Agreement"
and, together with the XXXX LLC Partnership Agreement, the "Partnership
Agreements"), between the ALF L.P. General Partner and the ALF L.P.
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 ALF L.P. is a
party or by which it may be bound, the Notes and the Transferor
Certificate; each of the Transferor and ALF 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, or business prospects.
(iii) The XXXX XX General Partner is the sole general partner of
the Transferor and the XXXX XX Limited Partner is the sole limited
partner of the Transferor
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and, at the Closing Date, each of the XXXX XX General Partner and the
XXXX XX Limited Partner will own its respective partnership interest in
the Transferor (each of which is a nontransferable interest to the
extent provided under the XXXX LLC 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 ALF L.P. General Partner is the sole general partner of
XXX X.X. and the ALF L.P. Limited Partner is the sole limited partner
of XXX X.X. and, at the Closing Date, each of the ALF L.P. General
Partner and the ALF L.P. Limited Partner will own its respective
partnership interests in ALF L.P. (each of which is a nontransferable
interest to the extent provided under the ALF LLC Partnership
Agreement) free and clear of any Lien except as permitted by the Basic
Documents.
(v) None of the Transferor, the XXXX XX General Partner, XXX X.X.
or the ALF L.P. General Partner is in violation of its organizational
or charter documents, limited liability company agreement or the
related Partnership Agreement, as the case may be, or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which it is a party
or by which it may be bound, or to which any of its properties or
assets is subject; the execution, delivery and performance by each of
the Transferor, the XXXX XX General Partner, XXX X.X. and the ALF L.P.
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 XXXX XX General Partner,
the XXXX XX Limited Partner, XXX X.X., the ALF L.P. General Partner,
the ALF L.P. Limited Partner and World Omni, threatened, against or
affecting the Transferor, the XXXX XX General Partner, XXX X.X. or the
ALF L.P. 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
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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 XXXX XX General
Partner, XXX X.X. or the ALF L.P. 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 XXXX XX General Partner, the XXXX
XX Limited Partner, XXX X.X., the ALF L.P. General Partner or the ALF
L.P. 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, governmental authority or agency or any other
Person is necessary in connection with (A) the issuance of the 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 ALF L.P. of this
Agreement, any Basic Document to which it is a party, the Notes or the
Transferor Certificate or (D) the consummation by the Transferor or ALF
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 XXXX XX General Partner, XXX
X.X. and the ALF L.P. 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
XXXX XX General Partner for the Transferor and by the ALF L.P. General
Partner for XXX X.X.
(x) As of the Closing Date, each of the Basic Documents to which
any of the Transferor, the XXXX XX General Partner, XXX X.X. or the ALF
L.P. General Partner is a party and the XXXX LLC Partnership Agreement
or the ALF LLC 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 XXXX XX General Partner, XXX X.X. or the ALF L.P.
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).
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(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 XXXX XX General Partner, XXX X.X. and the
ALF L.P. 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 XXXX XX General Partner, XXX
X.X. and the ALF L.P. 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 XXXX XX General Partner, the
XXXX XX Limited Partner, XXX X.X., the ALF L.P. General Partner or the
ALF L.P. 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.
(c) World Omni, on its own behalf and on behalf of ALF LLC, XXXX LLC
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
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its obligations under each Basic Document to which it is a party or by
which it may be bound.
(iii) Each of XXXX LLC and ALF LLC has been duly incorporated and
is validly existing as a limited liability company in good standing
under the laws of the State of Delaware, in each case with 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 XXXX LLC and ALF LLC is duly
qualified as a foreign limited liability company 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 membership interests of each of XXXX
LLC and ALF LLC is owned by World Omni, free and clear of Liens and
neither XXXX LLC nor ALF LLC has any subsidiaries. Each of XXXX LLC and
ALF LLC is current in the payment of any taxes required to be paid by
each of XXXX LLC and ALF LLC.
(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 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.
10
(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,
ALF LLC, XXXX LLC 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 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
Xxxx.
(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).
11
(xi) At the time of execution and delivery of the 1999-A 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.
(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 to 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.
(xvi) On each Transfer Date the Origination Trustee will not have
assigned to any Person any of its right, title or interest in any of
the related Subsequent Contracts, Contract Rights, Subsequent Leased
Vehicles or other related rights constituting the SUBI Assets, or shall
have obtained the release of each such prior assignment.
(d) Any Officer's Certificate signed by any officer of the Transferor,
World Omni, XXXX LLC, ALF LLC or XXX X.X. and delivered to the Representative or
counsel for the Underwriters shall be deemed a representation and warranty of
the Transferor, World Omni, XXXX LLC, ALF LLC or ALF L.P., as the case may be,
to each Underwriter as to the matters covered thereby.
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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 Xxxxxxxx & Xxxxxxxx, 000 Xxxxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000-5901 (or at such other location as agreed upon among the
Transferor, ALF L.P., World Omni and the Representative) at 10:00 A.M., New York
time, on ________, 1999, or at such other time not later than five full business
days thereafter, as the Transferor, XXX X.X., 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 Xxxxxxxx & Xxxxxxxx (or at such
other location agreed upon among the Transferor, ALF 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, ALF L.P., World Omni and the
Underwriters have agreed that the Closing Date will be not less than nine
business days following the date hereof. The Transferor, XXX X.X., 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 ALF
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, XXX X.X. any
13
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, XXX X.X. and World Omni. Each
of the Transferor, XXX X.X. 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 XXX X.X. 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 XXX X.X. will advise the Representative promptly of any
such filing pursuant to Rule 424(b).
(b) The Transferor and XXX X.X. 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 XXX X.X. 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 XXX X.X.
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. The
Transferor and XXX X.X. will comply with the Act, the Exchange Act, the
Trust Indenture Act of 1939, as amended and the rules and regulations
contemplated thereunder so as to permit the completion of the
distribution of the Class A Notes as contemplated in this Agreement and
in the Prospectus. The Transferor and XXX X.X. will file with the
Commission all documents required to be filed pursuant to the Exchange
Act within the time periods specified in the Exchange Act or the rules
and regulations promulgated thereunder.
(c) If, at any time when a prospectus relating to the Class A Notes
is required to be delivered under the Act, any event occurs as a result
of which the Prospectus as then
14
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
ALF 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 XXX X.X. 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 XXX X.X.,
"Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(e) The Transferor and XXX X.X. 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 XXX X.X. xxxx 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 ALF L.P.
shall be obligated to qualify to do business nor become subject to
service of process generally, but only to the extent required for such
qualification, in any jurisdiction in which it is not currently so
qualified.
(g) So long as any Notes are outstanding, the Transferor, XXX X.X.
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 ALF 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,
ALF LLC, XXXX LLC, XXX X.X., the Origination Trustee (in
15
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, XXX X.X. and World Omni will pay all expenses
incident to the performance of their respective obligations under this
Agreement, including without limitation, (i) expenses incident to the
word processing, printing and reproduction of the registration
statement as originally filed with the Commission and each amendment
thereto, preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto), (ii) the fees and disbursements of
the 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, XXX X.X. and World Omni, (iv) the fees charged by each
of Xxxxx'x Investors Service, Inc. ("Xxxxx'x"), Standard & Poor's, a
division of The XxXxxx-Xxxx Companies, Inc. ("Standard & Poor's") and
Fitch IBCA, Inc. ("Fitch" and, together with Xxxxx'x 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 (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, XXX X.X. 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, XXX X.X., World Omni or any of their respective affiliates
will, without the prior written consent of the Representative, directly
or indirectly, offer, sell or contract to sell or announce the offering
of, in a public or private transaction, any other collateralized
securities (other than the Class B Notes) similar to the Class A Notes.
(j) So long as any Class A Notes are outstanding, the Transferor,
XXX X.X. 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 any Rating Agency by counsel to the Transferor, XXX X.X. 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, XXX X.X. or World Omni, the Transferor, XXX
X.X. or World Omni, as the case may be, shall furnish such documents
and take any such other actions.
16
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, XXX X.X. and World Omni herein, to the accuracy of the
statements of the respective officers of the Transferor, XXX X.X. and World Omni
made pursuant to the provisions hereof, to the performance by the Transferor,
XXX X.X. 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, XXX X.X. 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, XXX X.X. 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 proceedings for that purpose shall have been instituted or,
to the knowledge of the Transferor, ALF 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 XXXX XX General Partner on behalf of the Transferor, (ii) the ALF L.P.
General Partner on behalf of XXX X.X. and (iii) World Omni, each dated the
Closing Date, in which such officer shall state, in the case of (A) the
Transferor and ALF L.P., that (1) the representations and warranties of the
Transferor or ALF 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 ALF 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
17
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 ALF 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 Xxxx 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, XXX X.X. and World Omni, (B) Hand Xxxxxxxx, L.L.C.,
special Alabama counsel to the Transferor, XXX X.X. and World Omni, (C)
English, XxXxxxxxx & X'Xxxxx, P.A., special Florida counsel to the
Transferor, XXX X.X. and World Omni, (D) XxXxxxxxx, Xxxx & Xxxxx,
special Illinois and New York counsel to the Transferor, XXX X.X. and
World Omni, (E) Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to
the Transferor, XXX X.X. and World Omni, (F) Xxxxxxx & Xxxxxxx L.L.C.,
special Georgia counsel to the Transferor, XXX X.X. and World Omni and
(G) Xxxxx Xxxxx Mulliss & Xxxxx, special North Carolina counsel to the
Transferor, XXX X.X. and World 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 membership interest of XXXX LLC and ALF LLC is owned by
World Omni, free and clear of Liens.
18
(ii) Each of XXXX LLC and ALF LLC has been duly incorporated
and is validly existing as a limited liability company in good
standing under the laws of the State of Delaware, with power and
authority to 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 XXXX LLC
and ALF LLC is duly qualified as a foreign limited liability
company to transact business in Florida and Alabama; and the shares
of issued and outstanding member interest of each of XXXX LLC and
ALF LLC have been duly authorized and validly issued and are fully
paid and non-assessable.
(iii) Each of the Transferor and XXX X.X. 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 XXXX LLC, as the XXXX XX General Partner, ALF LLC, as
the ALF L.P. 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, 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, XXXX LLC, ALF LLC, XXX X.X. and World Omni is
a
19
party has been duly authorized, executed and delivered by the
Transferor, XXXX LLC, ALF LLC, XXX X.X. 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, XXXX
LLC, ALF LLC, ALF 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, XXXX
LLC, ALF LLC, XXX X.X., 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", "Security for the Notes--The Residual Value
Insurance Policy", "Additional Document Provisions" and "The Class
A Interest Rate Cap", insofar as such statements purport to
summarize certain terms or provisions of the SUBI, the Notes and
the Transferor Certificate, the Basic Documents, the Residual Value
Insurance Policy, the Contingent and Excess Liability Insurance
Policies and the Class A Interest Rate Cap, provide a fair summary
of such provisions, and the statements in the Prospectus under "The
Origination Trust--Allocation of Origination Trust Liabilities",
"Risk Factors-- Possible Effects of Consumer Protection Laws",
"--Possible Liens to Satisfy ERISA Liabilities", "--Possible
Liability as a Result of Lessee's Operation of Leased Vehicles" and
"--Possible Effects of Insolvency or Bankruptcy of World Omni, the
Transferor, Auto Lease Finance L.P. or Their General Partners, the
Origination Trust or the Trust, "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,
20
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 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, XXX X.X. or World Omni of this Agreement or by the
Transferor, XXXX LLC, ALF LLC, ALF 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) 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, XXXX LLC, ALF LLC, ALF 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.
21
(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, 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 XXX X.X. 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, 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
Noteholders in the SUBI Certificate.
(xviii) Each of the Transferor, XXXX LLC, ALF LLC, ALF L.P.,
World Omni and the Origination Trustee (in its capacity as trustee
of the Origination Trust) possesses such certificates, authorities,
licenses, permits and
22
other governmental authorizations issued by Alabama and Florida, in
the case of the Transferor, XXXX LLC, ALF LLC, ALF 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.
(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 1999-A Leases
pursuant to the Backup Security Agreement will create a valid,
first priority perfected security interest in the 1999-A Leases.
(2) The favorable opinion of Hand Xxxxxxxx, L.L.C., special
Alabama counsel to the Transferor, XXX X.X. 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 has 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 1999-A Leases
pursuant to the Backup Security Agreement will create a valid,
first priority perfected security interest in the 1999-A Leases.
23
(3) The favorable opinion of Xxxxxxxx, Xxxxxx & Finger, special
Delaware counsel to the Transferor, XXX X.X. 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 ALF 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 ALF L.P. is a party (A) have been duly authorized by
all requisite partnership action on the part of the Transferor or
ALF 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 ALF 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, XXX X.X. 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.
24
(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 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 Xxxxxxxxxx, Xxxxxxxxxx & Xxxx, special
federal income tax counsel to the Transferor and ALF 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 (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, XXX X.X. or World Omni to the
Owner Trustee, the Indenture Trustee, the Origination Trustee or any
Rating Agency.
(7) The favorable opinion of _________________________, counsel to
the Indenture Trustee, dated the Closing Date and satisfactory in form
and substance to the Representative and counsel to the Underwriters, to
the effect that:
(i) The Indenture Trustee has been duly incorporated and is
validly existing as a ________, in good standing under the laws of
the _________with full power and authority (corporate and other) to
own its properties and conduct its business, as presently conducted
by it, and to enter into and perform its obligations as Indenture
Trustee under each Basic Document to which the Indenture Trustee is
a party.
(ii) Each Basic Document to which the Indenture Trustee is a
party has been duly authorized, executed and delivered by the
Indenture Trustee and, assuming the due authorization, execution
and delivery thereof by the other
25
parties thereto, will constitute a legal, valid and binding
obligation of the Indenture Trustee enforceable in accordance with
its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting enforcement of creditors' rights generally and by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(iii) The Notes have been duly authenticated and delivered by
the Indenture Trustee.
(iv) Neither the execution nor delivery by the Indenture
Trustee of each Basic Document to which it is a party nor the
consummation of any of the transactions by the Indenture Trustee
contemplated thereby require the consent or approval of, the giving
of notice to, the registration with or the taking of any other
action with respect to, any governmental authority or agency under
any existing federal or state law governing the banking or trust
powers of the Indenture Trustee.
(v) The execution and delivery of each Basic Document to which
the Indenture Trustee is a party and the performance by the
Indenture Trustee of its terms do not conflict with or result in a
violation of (A) any federal or state law or regulation governing
the banking or trust powers of the Indenture Trustee, (B) the
Articles of Association or By-Laws of the Indenture Trustee or (C)
to the best knowledge of such counsel, any indenture, lease or
material agreement to which the Indenture Trustee is a party or to
which its assets are subject.
(8) The favorable opinion of Xxxxxx & Xxxxxxx, counsel to the
Origination Trustee and the Trust Agent, 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 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, free and clear of any Liens. The Trust
Agent has been duly incorporated and is validly existing as a
national banking association, in good standing under the laws of
the United States of America, 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 Trust Agent under each Basic Document to
which the Trust Agent is a party.
(ii) Each Basic Document to which the Origination Trustee or
the Trust Agent is a party has been duly authorized, executed and
delivered by the Origination Trustee or the Trust Agent, as
applicable, and, assuming the due authorization, execution and
delivery thereof by the other
26
parties thereto, will constitute legal, valid and binding
obligations of the Origination Trustee or the Trust Agent, as
applicable, 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 has been duly executed,
authenticated and delivered by the Origination Trustee.
(iv) Neither the execution nor delivery by the Origination
Trustee or the Trust Agent of each Basic Document to which it is a
party nor the consummation of any of the transactions by the
Origination Trustee or the Trust Agent contemplated thereby require
the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect
to, any Person or entity, including any governmental authority or
agency under any existing federal or state law.
(v) The execution and delivery of each Basic Document to which
the 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.
(vi) The execution and delivery of each Basic Document to which
the Trust Agent is a party and the performance by the Trust Agent
of its terms do not conflict with or result in a violation of (A)
any federal or state law or regulation governing the banking or
trust powers of the Trust Agent, (B) the Articles of Association or
By-Laws of the Trust Agent or (C) to the best knowledge of such
counsel, any indenture, lease or material agreement to which the
Trust Agent is a party or to which its assets are subject.
(9) The favorable opinions of counsel 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
27
obligations under the Residual Value Insurance Policy, (iii) the
Residual Value Insurance Policy is enforceable in accordance with its
terms and (iv) the Residual Value Insurance Policy is not required to
be registered under the Act.
(10) The favorable opinion of The Bayard Firm, special counsel to
the Owner Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel to the Underwriters, to the
effect that:
(i) the Owner Trustee has been incorporated and is validly
existing as a Delaware __________, in good standing under the laws
of the State of Delaware and is authorized thereunder and pursuant
thereto to transact the business of banking, to exercise fiduciary
power and to enter into and perform its obligations as Owner
Trustee under each Basic Document to which the Owner Trustee is a
party.
(ii) Each Basic Document to which the Owner Trustee is a party
has been duly authorized, executed and delivered by the Owner
Trustee and, assuming the due authorization, execution and delivery
thereof by the other parties thereto, will constitute a legal,
valid and binding obligation of the Owner Trustee enforceable in
accordance with its terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting enforcement of creditors' rights
generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity
or at law).
(iii) 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 the Owner Trustee of
each Basic Document to which it is a party nor the consummation of
any of the transactions by the Owner Trustee contemplated thereby
require the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect
to, any Person or entity, including any governmental authority or
agency under any existing federal or state law.
(v) The execution and delivery of each Basic Document to which
the Owner Trustee is a party and the performance by the Owner
Trustee of its terms do not conflict with or result in a violation
of (A) any federal or state law or regulation governing the banking
or trust powers of the Owner Trustee, (B) the Articles of
Association or By-Laws of the Owner Trustee or (C) to the best
knowledge of such counsel, any indenture, lease or material
agreement to which the Owner Trustee is a party or to which its
assets are subject.
(11) The favorable opinion of Xxxxxxx & Xxxxxxx & Xxxxx LLP,
counsel for the Underwriters, dated the Closing Date, with respect to
the validity of the Notes and such
28
other related matters as the Representative shall request, which
opinions shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(f) The Insurer shall have issued the Residual Value Insurance Policy.
(g) On or prior to the Closing Date, the Representative shall have
received an officer's certificate from an officer of the Insurer stating that
although the information in the Prospectus under "Security for the Notes--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 officer has no reason to believe that the information in
the Prospectus under "Security for the Notes--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.
(h) Each Class of Class A Notes shall be rated in the highest rating
category by each of Xxxxx'x, Standard & Poor's and Fitch and the Class B Notes
shall be rated by at least two of Xxxxx'x, Standard & Poor's and Fitch, at least
A3 by Xxxxx'x, at least A- by Standard & Poor's and at least A by Fitch.
(i) On or prior to the Closing Date, all of the conditions precedent to
the execution of the Class A Interest Rate Cap have been satisfied and each of
the opinions delivered in connection with the Class A Interest Rate Cap have
been addressed to the Underwritiers and delivered to the Representative.
(j) On or prior to the Closing Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance of the Notes
and the Transferor Certificate and sale of the 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, XXX X.X. and World Omni at
any time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Section 5(h)
hereof.
7. Indemnification and Contribution.
(a) Each of the Transferor and World Xxxx agrees, jointly and
severally, to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act as
follows:
29
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information deemed
to be part of the Registration Statement pursuant to Rule 430A(b) of
the Rules and Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Transferor and World Omni; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(c) hereof, the fees and disbursements
of counsel chosen by the Representative), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clause
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Transferor by
any Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Transferor and World Omni, each of their respective directors, each of their
respective officers who signed the Registration Statement and each person, if
any, who controls each of the Transferor and World Omni, respectively, within
the meaning of Section 15 of the Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Transferor by such
Underwriter directly or through the Representative expressly for use in the
Registration
30
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it with
respect to which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it may have
other than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action. In no event shall
an indemnifying party be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
8. Contribution. If the indemnification provided for in Section 7
hereof is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) thereof, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the loss, liability, claim, damage or expense referred to in subsection (a)
or (b) of Section 7 (i) in such proportion as is appropriate to reflect the
relative benefits received by the Transferor and World Omni on the one hand and
the Underwriters on the other from the offering of the Class A Notes or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Transferor
and World Omni on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such loss, liability, claim,
damage or expense as well as any other relevant equitable considerations. The
relative benefits received by the Transferor and World Omni on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Transferor bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Transferor, World Omni or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the loss, liability, claim, damage or expense
referred to in the first sentence of this Section shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this Section. Notwithstanding the provisions of this Section, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the 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. Notwithstanding the other
provisions of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Act shall have the same rights to
contribution as such Underwriter and each director of the Transferor and World
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Omni, each officer of the Transferor who signed the Registration Statement and
each person, if any, who controls either the Transferor or World Omni within the
meaning of Section 15 of the Act shall have the same rights to contribution as
the Transferor or World Omni, as the case may be. The Underwriters' respective
obligations to contribute pursuant to this Section are several in proportion to
the principal amount of the Class A Notes set forth opposite their respective
names in Schedule I hereto and not joint.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Transferor, XXX X.X. 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, XXX
X.X., 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, ALF 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, ALF 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, XXX X.X. 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, XXX X.X. 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, ALF 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, ALF
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, XXX
X.X., World Omni or the Insurer (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or other calamity or crisis, the effect of which is such as to make
it, in the judgment of the Representative, impracticable to market any Class of
Notes or to enforce contracts for the sale of any Class of Notes; (iv) if
trading generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed or maximum ranges for prices for securities have been required, by either
of said Exchanges or by order of the Commission or any other governmental
authority; or (v) if a banking moratorium has been declared by either federal,
New York, Delaware, Florida, Illinois or Alabama authorities.
32
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 ALF 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 Xxxxxxx Xxxxx &
Co., North Tower, World Financial Center, New York, New York 10281-1201,
Attention: Xxxxxxxx X. Xxxx, Managing Director (facsimile number (212)
449-9015); (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 LLC, 120 N.W. 12th Avenue, Deerfield Beach, Florida 33442,
Attention: X. Xxxxxx Xxxxx, Vice President and Corporate Treasurer (facsimile
number (000) 000-0000); (iii) ALF 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
LLC, 000 X.X. 12th Avenue, Deerfield Beach, Florida 33442, Attention: X. 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. 12th Avenue, Deerfield Beach,
Florida 33442, Attention: X. 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.
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14. Severability of Provisions. Any covenant, provision, agreement or
term of this Agreement that is prohibited or is held to be void or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof.
15. Miscellaneous. This Agreement constitutes the entire agreement and
understanding of the parties hereto with respect to the matters and transactions
contemplated hereby and supersedes all prior agreements and understandings
whatsoever relating to such matters and transactions. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. The headings in this
Agreement are for the purposes of reference only and shall not limit or
otherwise affect the meaning hereof.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
17. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to any
otherwise applicable principles of conflicts of laws.
34
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, ALF
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
LLC, its General Partner
By: __________________________
Xxxxxxx X. Xxxxxxxxx
Assistant Treasurer
AUTO LEASE FINANCE L.P.
By: AUTO LEASE FINANCE LLC,
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.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: ___________________________
Name:
Title:
For itself and as Representative of the other Underwriters named in Schedule I
hereto.
SCHEDULE I
Principal Amount of Principal Amount of Principal Amount of Principal Amount of
Class A-1 Class A-2 Class A-3 Class A-4
Name of Underwriter Notes Notes Notes Notes
------------------- ----- ----- ----- -----
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated..................
$_________ $_________ $_________ $_________
Total .............................
