EXHIBIT 1.1
EXECUTION COPY
WORLD OMNI AUTO RECEIVABLES TRUST
2007-A
$243,000,000 5.32000% Asset Backed
Notes, Class A-1
$288,000,000 5.32% Asset Backed
Notes, Class A-2
$236,000,000 5.23% Asset Backed
Notes, Class A-3
$333,000,000 Floating Rate Asset
Backed Notes, Class A-4
UNDERWRITING AGREEMENT
February 13, 2007
Credit Suisse Securities (USA) LLC 11
Madison Avenue New York, NY 10010-3629
Banc of America Securities LLC Hearst
Tower
214 North Tryon Street Charlotte, NC
28255
as Representatives of the Several
Underwriters
Dear Ladies and Gentlemen:
1. Introductory . World Omni
Auto Receivables LLC, a Delaware limited liability company (the
“Depositor”), and World Omni Financial Corp., a Florida
corporation (“World Omni”), hereby confirm their
respective agreements with Credit Suisse Securities (USA) LLC and
Banc of America Securities LLC and each of the other underwriters
named in Schedule I hereto (collectively, the
“Underwriters”) for whom you are acting as
representatives (the “Representatives”), with respect
to the sale by the Depositor to the Underwriters of $243,000,000
aggregate principal amount of 5.32000% Asset Backed Notes,
Class A-1 (the “Class A-1 Notes”), $288,000,000
aggregate principal amount of 5.32% Asset Backed Notes,
Class A-2 (the “Class A-2 Notes”), $236,000,000
aggregate principal amount of 5.23% Asset Backed Notes,
Class A-3 (the “Class A-3 Notes”) and $333,000,000
aggregate principal amount of Floating Rate Asset Backed Notes,
Class A-4 (the “Class A-4 Notes” and, together
with the Class A-1 Notes, Class A-2 Notes and
Class A-3 Notes, the “Offered Notes”) of World
Omni Auto Receivables Trust 2007-A (the “Trust”) under
the terms and conditions herein contained. The Offered Notes are to
be issued together with $31,105,000 aggregate principal amount of
5.31% Asset Backed Notes, Class B (the “Class B Notes”
and, together with Offered Notes, the “Notes”). The
Class B Notes will initially be retained by the
Depositor.
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The Notes will be issued pursuant to
an indenture (the “Indenture”), to be dated as of the
Closing Date (as defined below), between the Trust and Bank of New
York, as indenture trustee (in such capacity, the “Indenture
Trustee”). The Depositor will retain the asset backed
certificates (the “Certificates”) issued pursuant to an
amended and restated trust agreement, to be dated as of the Closing
Date (the “Trust Agreement”), between the Depositor and
Deutsche Bank Trust Company Delaware, as owner trustee (in such
capacity, the “Owner Trustee”). The Certificates will
be subordinated to the Notes to the extent described in the Basic
Documents (as defined below).
The assets of the Trust will
include, among other things, a pool of fixed rate retail
installment sale contracts (the “Initial Receivables”)
secured by new and used automobiles and light-duty trucks financed
thereby (the “Initial Financed Vehicles”), and certain
monies received thereunder after February 5, 2007 (the
“Initial Cutoff Date”), and, if there is a funding
period, additional fixed rate retail installment sale contracts
(the “Subsequent Receivables” and together with the
Initial Receivables, the “Receivables”) secured by new
and used automobiles and light-duty trucks financed thereby (the
“Subsequent Financed Vehicles” and together with the
Initial Financed Vehicles, the “Financed Vehicles”),
and certain monies received thereunder after the related cutoff
date (each, a “Subsequent Cutoff Date”), rights under
the interest rate swap agreement and monies on deposit in the
Reserve Account and in certain other accounts and the other
property and the proceeds thereof to be conveyed to the Trust
pursuant to the Sale and Servicing Agreement to be dated as of the
Closing Date (the “Sale and Servicing Agreement”) among
the Trust, the Depositor and World Omni, as Servicer (the
“Servicer”). Pursuant to the Sale and Servicing
Agreement, the Depositor will sell the Receivables to the Trust and
the Servicer will service the Receivables on behalf of the Trust.
In addition, pursuant to the Sale and Servicing Agreement, the
Servicer will agree to perform certain administrative tasks on
behalf of the Trust imposed on the Trust under the Indenture.
Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Sale and Servicing
Agreement.
The Receivables were or will be
originated or acquired by World Omni. World Omni will sell the
Receivables to the Depositor pursuant to the terms of the
Receivables Purchase Agreement (the “Receivables Purchase
Agreement”) to be dated as of the Closing Date between the
Depositor and World Omni.
As used herein, the term
“Basic Documents” refers to the Sale and Servicing
Agreement, Indenture, Trust Agreement, Receivables Purchase
Agreement, Administration Agreement (the “Administration
Agreement”) to be dated as of the Closing Date among World
Omni, the Indenture Trustee, the Depositor and the Trust and Note
Depository Agreement.
At or prior to the time when sales
(including any contracts of sale) of the Notes were first made to
investors by the Underwriters, which shall be deemed to be 12:45
p.m. on February 13, 2007 (the “Time of Sale”),
the Depositor had prepared the following information (together, as
a whole, the “Time of Sale Information”): (i) the
Preliminary Prospectus Supplement dated February 12, 2007 and
the Prospectus dated February 12, 2007 (together, along with
any information referred to under the caption “Static Pool
Information About Certain Previously Securitized Pools”
therein, regardless of whether it is deemed a part of the
Registration Statement or Prospectus under Rule 1105(d) of
Regulation AB, the “Preliminary Prospectus”), and
(ii) each “free writing prospectus” (as defined
pursuant to Rule 405 of the Securities Act of
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1933, as amended (the “Act”)) listed
on Schedule III hereto (as it may be amended with the approval in
writing of the parties hereto). If, subsequent to the Time of Sale
and prior to the Closing Date, it is determined by the parties that
such information included an untrue statement of material fact or
omitted 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, then the investors may terminate
their old “contracts of sale” (within the meaning of
Rule 159 under the Act). If, following any such termination, the
Underwriters, with prior written notice to the Depositor and World
Omni, enter into new contracts of sale with investors for the
Notes, then “Time of Sale Information” will refer to
the documents agreed upon in writing by the Depositor and the
Representatives that correct such material misstatements or
omissions (a “Corrected Prospectus”) and “Time of
Sale” will refer to the time and date agreed upon by the
Depositor and the Representatives.
2. Representations and Warranties
of the Depositor and World Omni . Each of the Depositor and
World Omni, jointly and severally, represents and warrants to, and
agrees with, each of the Underwriters that:
(a) The registration statement on
Form S-3 (No. 333-133809), including a prospectus, relating to the
Offered Notes (x) has been filed with the Securities and
Exchange Commission (the “Commission”) and has become
effective and is still effective as of the date hereof and
(y) was declared effective by the Commission within three
years prior to the Closing Date. Such registration statement, as
amended as of the date of this Underwriting Agreement (the
“Agreement”) is hereinafter referred to as the
“Registration Statement,” and the prospectus included
in such Registration Statement, as supplemented to reflect the
terms of the Offered Notes as first filed with the Commission after
the date of this Agreement pursuant to and in accordance with Rule
424(b) (“Rule 424(b)”) under the Act including all
material incorporated by reference therein (including information
referred to under the caption “Static Pool Information About
Certain Previously Securitized Pools” therein, regardless of
whether it is a part of the Registration Statement or Prospectus
under Rule 1105(d) of Regulation AB), is hereinafter referred to as
the “Prospectus;” a “preliminary
prospectus” means any form of prospectus, including any
prospectus supplement, relating to the Offered Notes that is
subject to completion; the “Base Prospectus” means the
base prospectus dated the date hereof included in the Prospectus;
the “Prospectus Supplement” means the prospectus
supplement dated the date hereof included in the Prospectus. The
Depositor has filed the Preliminary Prospectus on February 12,
2007, within the applicable period of time required under the Act
and the Rules and Regulations.
(b) (A) As of the applicable
effective date as to each part of the Registration Statement
pursuant to Rule 430B(f)(2), and any amendment thereto under the
Act, the Registration Statement complied, and on the date of this
Agreement the Registration Statement will comply, in all material
respects with the requirements of the Act and the rules and
regulations of the Commission promulgated under the Act (the
“Rules and Regulations”) and at such times did not
include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading and (B) on the date
of this Agreement, at the time of the filing of the Prospectus
pursuant to Rule 424(b) and at the Closing Date, the Prospectus
will comply in all material respects with the requirements of the
Act and the Rules and Regulations and does not include, or will not
include,
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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. The immediately preceding sentence does not apply to
statements in or omissions from the Registration Statement or
Prospectus based solely upon written information furnished to the
Depositor or World Omni by any Underwriter through the
Representatives specifically for use therein; provided that,
the only such information furnished to the Depositor or World Omni
consists of the information set forth in (x) the first
sentence under the heading “Risk Factors—You may have
difficulty selling your notes and/or obtaining your desired price
due to the absence of a secondary market” and (y) the
second paragraph, the table following the second paragraph, the
fourth paragraph, the third and fourth sentences of the fifth
paragraph and the first sentence of the eighth paragraph under the
heading “Underwriting” (the “Underwriters’
Information”). The Prospectus delivered to you for use in
connection with the offering of the Offered Notes will be identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to the Electronic Data Gathering, Analysis and
Retrieval (“EDGAR”) system, except to the extent
permitted by Regulation S-T.
(c) The Time of Sale Information, at
the Time of Sale, did not, and at the Closing Date will not,
contain any untrue statement of a material fact or omit 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; provided that the Depositor makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with the
Underwriters’ Information.
(d) None of the Depositor, World
Omni 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”).
(e) To the best of its knowledge,
each of the Initial Receivables and Initial Financed Vehicles as of
the Initial Cutoff Date will meet the eligibility criteria for
selection described in the Prospectus and in the Time of Sale
Information. Each of the Subsequent Receivables and Subsequent
Financed Vehicles as of its Subsequent Cutoff Date will meet the
eligibility criteria for selection described in the Prospectus and
in the Time of Sale Information, and if any Receivable shall fail
to meet such requirements it will repurchase such Receivable as
required by the Basic Documents.
(f) The Offered Notes are
“asset-backed securities” within the meaning of, and
satisfy the requirements for use of, Form S-3 under the
Act.
(g) The documents incorporated by
reference in the Registration Statement, the Prospectus and the
Time of Sale Information, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and the rules
and regulations of the Commission thereunder.
(h) The Depositor has satisfied all
of its obligations under the Exchange Act and is eligible for use
of Form S-3 under the Act.
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(i) As of the Time of Sale, the Depositor was
not and as of the Closing Date is not, an “ineligible
issuer,” as defined in Rule 405 under the Act.
(j) The Depositor has filed or will
file the Preliminary Prospectus, each Free Writing Prospectus
listed on Schedule III or approved in writing by the Depositor and
any “issuer information” as defined under Rule 433(h)
under the Act included in any Free Writing Prospectus permitted by
this Agreement that is required to have been filed under the Act
and the Rules and Regulations and it has done or will do so within
the applicable periods of time required under the Act and the Rules
and Regulations.
(k) The Depositor has been duly
formed and is validly existing as a limited liability company under
Delaware law, and all filings required at the date hereof under
Delaware law with respect to the due formation and valid existence
of the Depositor as a limited liability company have been made; the
Depositor has all requisite power and authority to own, lease and
operate its properties and to conduct its business as described in
the Prospectus and in the Time of Sale Information or in its
organizational documents, and to enter into and to perform its
obligations under this Agreement and each Basic Document to which
the Depositor is a party or by which it may be bound; the Depositor
is duly qualified or registered as a foreign entity 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; all
of the issued and outstanding membership interests of the Depositor
are owned by World Omni, free and clear of liens; and the Depositor
does not have any subsidiaries. The Depositor is current in the
payment of any taxes required to be paid by it.
(l) The Depositor is not in
violation of its organizational or charter documents, or in default
in the performance or observance of any material obligation,
agreement, covenant or condition contained in 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; the execution,
delivery and performance by the Depositor of this Agreement and
each Basic Document to which it is a party, 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 material contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which it may be
a party, by which it may be bound or to which any of its properties
or assets is subject, nor will such action result in any violation
of the provisions of its charter or organizational documents,
Bylaws or any applicable law, administrative regulation or
administrative or court decree.
(m) 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 the
Depositor or World Omni, threatened, against or affecting the
Depositor, that is required to be disclosed in the Registration
Statement and that is not disclosed or that could reasonably be
expected to result in any material adverse change in its condition,
financial or otherwise, or in its earnings, business
5
affairs or business prospects or
that could reasonably be expected to materially and adversely
affect its properties or assets or that could reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated by this Agreement or any Basic Document
to which the Depositor is a party or by which it may be bound; all
pending legal or governmental proceedings to which the Depositor is
a party or of which any of its properties or assets is the subject
that are not described in the Registration Statement, including
ordinary routine litigation incidental to its businesses, are, when
considered in the aggregate, not material; and there are no
contracts or documents of the Depositor 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.
(n) Except such as may be required
by the Act, the Rules and Regulations or state securities laws, no
authorization, approval or consent of any court, governmental
authority or agency or any other Person is necessary in connection
with (A) the issuance of the Notes and the Certificates or the
offering and sale of the Offered Notes, (B) the execution,
delivery and performance by the Depositor of this Agreement and any
Basic Document to which it is a party or (C) the consummation
by the Depositor of the transactions contemplated hereby or
thereby, except such authorizations, approvals or consents as will
have been obtained on or prior to, and will be in full force and
effect as of, the Closing Date.
(o) The Depositor possesses all
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
Depositor has not 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.
(p) This Agreement has been duly
authorized, executed and delivered by the Depositor.
(q) As of the Closing Date, each of
the Basic Documents to which the Depositor is a party has been duly
authorized, executed and delivered by the Depositor.
(r) As of the respective dates set
forth therein, the representations and warranties of the Depositor
in each Basic Document to which it is a party and in
officer’s certificates of the Depositor delivered on the
Closing Date pursuant to Section 7(c), as the case may be,
were or will be, as applicable, true and correct, and each
Underwriter may rely on such representations and warranties as if
they were set forth herein in full.
(s) The Depositor does not conduct
business or have 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.
(t) 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”, except for such taxes that are being
disputed by World Omni in good faith and if such dispute is
adversely
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determined against World Omni it
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; 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 in the Time of Sale Information and to enter
into and to perform its obligations under this Agreement and each
Basic Document to which World Omni is a party or by which it may be
bound; and World Omni is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify would not have a material adverse
effect on its condition, financial or otherwise, or its earnings,
business affairs or business prospects or its ability to perform
its obligations under this Agreement or any Basic Document to which
it is a party or by which it may be bound.
(u) World Omni is not in violation
of its organizational or charter documents, or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in 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 property or assets is subject that could
reasonably be expected to have a material adverse effect on the
transactions contemplated herein or in the Basic Documents; the
execution, delivery and performance by World Omni of this 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 any applicable law, administrative regulation
or administrative or court decree.
(v) 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, that is required
to be disclosed in the Registration Statement and that is not
disclosed or that could reasonably be expected to result in any
material adverse change in its condition, financial or otherwise,
or in its earnings, business affairs or business prospects or that
could reasonably be expected to materially and adversely affect its
properties or assets or that could reasonably be expected to
materially and adversely affect the consummation of the
transactions contemplated by this 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 is a party or
of which any of its properties or assets is the subject that are
not described in the Prospectus and in the Time of Sale
Information, including ordinary routine litigation incidental to
its business, are, when considered in the aggregate, not material
in the context of the issuance and sale of the Offered
Notes.
(w) 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
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performance by World Omni of this
Agreement or any Basic Document to which World Omni is a party or
the consummation by World Omni of the transactions contemplated
hereby or thereby, except such authorizations, approvals or
consents as will have been obtained on or prior to, and will be in
full force and effect as of, the Closing Date.
(x) World Omni 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 has not 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 this Agreement or any Basic Document
to which it is a party or by which it may be bound.
(y) This Agreement has been duly
authorized, executed and delivered by World Omni.
(z) As of the Closing Date, each
Basic Document to which World Omni is a party has been duly
authorized, executed and delivered by World Omni.
(aa) On the Closing Date, the Trust
will have good and marketable title to the Initial Receivables and
the other property conveyed to the Trust on the Closing Date, free
and clear of all liens, security interests or encumbrances (except
as permitted by the Basic Documents) and will not have assigned to
any Person any of its right, title or interest in any such Initial
Receivables or other property conveyed to the Trust on the Closing
Date (except as permitted by the Basic Documents), or shall have
obtained the release of any such prior assignment. On any
subsequent transfer date, if any, the Trust will have good and
marketable title to the Subsequent Receivables and the other
property conveyed to the Trust on such subsequent transfer date,
free and clear of all liens, security interests or encumbrances
(except as permitted by the Basic Documents) and will not have
assigned to any Person any of its right, title or interest in any
such Subsequent Receivables or other property conveyed to the Trust
on such subsequent transfer date (except as permitted by the Basic
Documents), or shall have obtained the release of any such prior
assignment. The assignment of the Receivables, all documents and
instruments related thereto and all proceeds thereof to the Trust,
pursuant to the Receivables Purchase Agreement and the Sale and
Servicing Agreement, vests in the Trust all interests which are
purported to be conveyed thereby, free and clear of any liens,
security interests or encumbrances (except as permitted by the
Basic Documents).
(bb) As of the respective dates set
forth therein, the representations and warranties of World Omni in
each Basic Document to which it is a party and in Officer’s
Certificates of World Omni delivered on the Closing Date, will be
true and correct, and each Underwriter may rely on such
representations and warranties as if they were set forth herein in
full.
(cc) On or prior to each subsequent
transfer date, if any, World Omni and the Depositor shall deliver
to the Underwriters, or cause the delivery of, any opinions and
officer’s certificates, each dated such subsequent transfer
date and, in the case of legal opinions, addressed to the
Underwriters, that are required to be delivered to the Rating
Agencies on such date.
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(dd) Simultaneously with the Trust’s
assignment of the Collateral to the Indenture Trustee pursuant to
the Indenture, the Indenture Trustee’s interest in the
Collateral shall be perfected upon the filing of UCC-1 financing
statements in the appropriate offices and there shall be no
unreleased statements identifying the Trust as debtor or assignor
affecting the Collateral filed in such offices other than such
financing statements.
3. Purchase, Sale and Delivery of
the Offered 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 Depositor
agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter, severally and not jointly, agrees to purchase
from the Depositor the aggregate principal amount of each Class of
Offered Notes set forth in Schedule I hereto 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, 99.87500%,
(ii) in the case of the Class A-2 Notes, 99.82748%,
(iii) in the case of the Class A-3 Notes, 99.77483%, and
(iv) in the case of the Class A-4 Notes,
99.77000%.
Each Class of Offered 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 Offered Notes will be represented by book entries on
the records of DTC and participating members thereof. Definitive
instruments evidencing the Offered Notes will be available only
under the limited circumstances specified in the
Indenture.
The Depositor will
deliver the Offered Notes to the Representatives for the respective
accounts of the Underwriters, against payment of the purchase price
therefor in immediately available funds payable to the order of the
Depositor, at the office of Kirkland & Ellis LLP,
Citigroup Center, 153 East 53 rd
Street,
New York, New York 10022 (or at such other location as agreed upon
among the Depositor, World Omni and the Representatives) at 10:00
A.M., New York time, on February 21, 2007 or at such other
time not later than five full business days thereafter, as the
Depositor, World Omni and the Representatives determine, such time
being herein referred to as the “Closing Date”. The
instruments evidencing the Offered Notes will be made available for
inspection at the above offices of Kirkland & Ellis LLP
(or at such other location agreed upon among the Depositor, World
Omni and the Representatives) at least 24 hours prior to the
Closing Date.
The Depositor, World Omni and the
Underwriters 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 or the Depositor) 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.
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4. Certain Agreements of the Underwriters
.
(a) It is understood that the
Underwriters propose to offer the Offered Notes for sale to the
public as set forth in the Prospectus, in the Time of Sale
Information and any Preliminary Prospectus Supplement.
(b) Until the Representatives inform
the Depositor in writing that all of the Offered Notes have been
sold by the Underwriters, each Underwriter covenants and agrees to
provide to the Depositor each day, with respect to sales of the
Offered 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 Depositor 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 Offered Notes.
(c) Each Underwriter hereby
severally and not jointly represents and warrants to, and agrees
with, the Depositor and World Omni, that (a) it has not
offered or sold and, prior to the expiry of the period of six
months from the Closing Date, will not offer or sell any Offered
Notes to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes
of their businesses or who it is reasonable to expect will acquire,
hold, manage or dispose of investments (as principal or agent) for
the purposes of their businesses, or otherwise in circumstances
that have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, as amended, (b) it has
complied and will comply with all applicable provisions of the
Financial Services and Markets Act 2000 (“the FSMA”)
with respect to anything done by it in relation to the Offered
Notes in, from or otherwise involving the United Kingdom,
(c) it is a person of a kind described in Articles 19 or 49 of
the Financial Services and Markets Act 2000 (Financial Promotion)
Order 2001, as amended (the “Financial Promotion
Order”) and (d) it has only communicated or caused to be
communicated, and will only communicate or cause to be
communicated, in the United Kingdom any document received by it in
connection with the issue of the Offered Notes to a person who is
of a kind described in Articles 19 or 49 of the Financial Promotion
Order or who is a person to whom such document may otherwise
lawfully be communicated.
(d) 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 by the Depositor have been paid in full, the
Underwriters will not institute against, or join any other person
in instituting against, the Depositor any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding
or other proceeding under any federal or state bankruptcy or
similar law. The foregoing shall not limit the right of any
Underwriter to file any claim in or otherwise take actions with
respect to any such proceeding otherwise instituted.
(e) Each Underwriter that uses the
Internet or other electronic means to offer or sell the Offered
Notes severally represents that it has in place, and covenants that
it shall maintain internal controls and procedures which it
reasonably believes to be sufficient to ensure compliance in all
material respects with all applicable legal requirements under the
Act and
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applicable procedures, if any,
worked out with the staff of the Commission relating to the use of
the Internet or relating to computerized or electronic means of
delivery to prospective investors of the Prospectus, in each case
in connection with the offering of the Offered Notes.
5. Certain Agreements of the
Depositor and World Omni . The Depositor, with respect to the
covenants made by it hereunder, and World Omni, with respect to the
covenants made by it hereunder, agree with each of the Underwriters
that:
(a) The Depositor will file the
Prospectus, properly completed, with the Commission pursuant to and
in accordance with subparagraph (2) (or, if applicable and if
consented to by the Representatives, subparagraph (5)) of Rule
424(b) no later than the second business day following the date it
is first used. The Depositor will file with the Commission each
Free Writing Prospectus listed on Schedule III or approved in
writing by the Depositor and any “issuer information”
(as defined above) included in any Free Writing Prospectus
permitted by this Agreement that the Depositor is required to file
under the Act and the Rules and Regulations, and in each case will
do so within the applicable period of time required under the Act
and the Rules and Regulations. The Depositor will advise the
Representatives promptly of any such filings.
(b) During the period when a
prospectus relating to the Offered Notes is required to be
delivered under the Act, the Depositor will advise the
Representatives promptly of any proposal to amend or supplement the
Registration Statement, the Prospectus or the Time of Sale
Information and will not effect or file any such amendment or
supplement without the consent of the Representatives (which
consent shall note be unreasonably withheld or delayed) and will
advise the Representatives promptly of any amendment or supplement
of the Registration Statement or the Prospectus; provided
that, no such consent of the Representatives will be required to
file an amendment or supplement under this Section 5(b) if the
Depositor receives an opinion of counsel that such amendment or
supplement is required to comply with the Act. The Depositor will
advise the Representatives promptly of the institution by the
Commission of any order or action suspending the right to use the
Prospectus or the Time of Sale Information in respect of the
Registration Statement.
(c) If, at any time when a
prospectus relating to the Offered Notes is required to be
delivered under the Act, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if
it is necessary at any time to amend or supplement the Prospectus
and the Time of Sale Information to comply with the Act, the
Depositor promptly will prepare and file, or cause to be prepared
and filed, with the Commission an amendment or supplement that will
correct such statement or omission or effect such compliance;
provided that, no consent of the Representatives as set
forth in Section 5(b) hereof will be required to file an
amendment or supplement under this Section 5(c) if the
Depositor receives an opinion of counsel that such amendment or
supplement is required to comply with the Act. Neither the consent
of the Representatives 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 7 hereof.
(d) [Reserved]
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(e) The Depositor will furnish to the
Representatives copies of the registration statement as originally
filed with the Commission and each amendment thereto (in each case
at least one of which will include all exhibits), each related
preliminary prospectus including the 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
Representatives may reasonably request.
(f) The Depositor will arrange for
the qualification of the Offered Notes for sale under the laws of
such jurisdictions in the United States as the Representatives may
designate and will continue such qualifications in effect so long
as required for the distribution of the Offered Notes,
provided that the Depositor shall not 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 Offered Notes are
outstanding, unless such information shall have been posted to the
World Omni website, the Depositor or World Omni, as the case may
be, will deliver or cause to be delivered to the Representatives,
as soon as each becomes available, copies of (i) each report
relating to the Offered Notes delivered to Noteholders pursuant to
the Basic Documents and, (ii) the annual statement as to
compliance and the annual statement of a firm of independent public
accountants furnished pursuant to the Basic Documents,
(iii) each periodic report required to be filed by the
Depositor with the Commission pursuant to the Exchange Act, or any
order of the Commission thereunder, and (iv) such other
information in the possession of the Depositor concerning the
Trust, the Notes or the Certificates as the Representatives may
reasonably request from time to time.
(h) The Depositor 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 (including the Preliminary Prospectus and
each Free Writing Prospectus listed on Schedule III hereto or
agreed upon in writing by the Depositor and the Representatives)
and the Prospectus (including any amendments and supplements
thereto), (ii) the fees and disbursements of the Owner
Trustee, the Indenture Trustee and the Trust and their respective
counsel, (iii) the fees and disbursements of counsel and the
independent public accountants of the Depositor and World Omni,
(iv) the fees charged by each of Moody’s Investors
Service, Inc. (“Moody’s”), Standard &
Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. (“Standard & Poor’s”
and, together with Moody’s, the “Rating
Agencies”) in connection with the rating of each
Class of Offered Notes, (v) the fees of DTC in connection
with the book-entry registration of the Offered Notes,
(vi) the amounts set forth in Section 6(i) and
(vii) 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 Offered Notes
for sale under the laws of such jurisdictions in the United States
as the Representatives may designate.
(i) To the extent, if any, that the
rating provided with respect to any Offered Notes by any Rating
Agency is conditional upon the furnishing of documents or the
taking of any other actions by the Depositor or World Omni, the
Depositor or World Omni, as the case may be, shall furnish such
documents and take any such other actions.
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(j) The Depositor or World Omni, as the case may
be, will (i) if still subject to the reporting requirements of
the Exchange Act with respect to the Trust, file or cause to be
filed with the Commission a report on Form 10-D in accordance with
Item 1121(b) of Regulation AB under the Act or (ii) if no
longer subject to the reporting requirements of the Exchange Act
with respect to the Trust, provide to the holders of the Offered
Notes, information comparable to that contained in the Prospectus
relating to the Initial Receivables regarding the characteristics
of the Subsequent Receivables, if any (the “Subsequent
Receivables Information”).
(k) At or prior to the provision of
the Subsequent Receivables Information, if any, the Representatives
and the Depositor shall have received a letter, dated the date
thereof, of PricewaterhouseCoopers LLP (“PWC”)
confirming that they are independent public accountants within the
meaning of the Act and the Rules and Regulations, substantially in
the form of the draft or drafts to which the Representatives have
previously agreed and otherwise in form and in substance
satisfactory to the Representatives and counsel for the
Underwriters relating to the Subsequent Receivables
Information.
6. Time of Sale Information and
Free Writing Prospectus .
(a) The following terms have the
specified meanings for purposes of this Agreement:
(i) “ Free Writing
Prospectus ” means and includes any information relating
to the Notes disseminated by the Depositor or any Underwriter that
constitutes a “free writing prospectus” within the
meaning of Rule 405 under the Act;
(ii) “ Prepricing
Information ” means information relating to the price,
pricing speed, benchmark and status of the Offered Notes and the
offering thereof.
(iii) “ Computer Tape
Information ” means written information regarding the
Offered Notes or the related receivables contained in the
electronic data file WO020301.zip furnished by the Depositor to
Credit Suisse Securities (USA) LLC by email on February 6,
2007.
(b) The Depositor will not
disseminate to any potential investor any information relating to
the Offered Notes that constitutes a “written
communication” within the meaning of Rule 405 under the Act,
other than the Time of Sale Information and the Prospectus, unless
the Depositor has obtained the prior consent of the
Representatives.
(c) Neither the Depositor nor any
Underwriter shall disseminate or file with the Commission any
information relating to the Offered Notes in reliance on Rule 167
or 426 under the Act, nor shall the Depositor or any Underwriter
disseminate any Free Writing Prospectus “in a manner
reasonably designed to lead to its broad unrestricted
dissemination” within the meaning of Rule 433(d) under the
Act.
(d) Each Underwriter and the
Depositor represent that each Free Writing Prospectus distributed
by it shall bear the following legend, or a substantially similar
legend that complies with Rule 433 under the Act:
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The Depositor has filed a
registration statement (including a prospectus) with the SEC for
the offering to which this communication relates. Before you
invest, you should read the prospectus in that registration
statement and other documents the depositor has filed with the SEC
for more complete information about the depositor, the issuing
trust, and this offering. You may get these documents for free by
visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively,
the depositor, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request it
by calling toll free 1-(800) 221-1037.
(e) In the event that the
D
