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Exhibit 1.1
Execution
Copy
WORLD OMNI AUTO RECEIVABLES
TRUST 2008-A
$133,000,000
2.92200% Asset Backed Notes,
Class A-1
$168,000,000
Floating Rate Asset Backed
Notes, Class A-2
$105,000,000
3.94% Asset Backed Notes,
Class A-3a
$53,500,000
Floating Rate Asset Backed
Notes, Class A-3b
$90,500,000
4.74% Asset Backed Notes,
Class A-4
UNDERWRITING
AGREEMENT
March 12,
2008
Credit Suisse Securities (USA)
LLC
11 Madison Avenue, 4
th
Floor
New York, New York 10010
Wachovia Capital Markets, LLC
301 South College Street,
NC0610
Charlotte, North Carolina
28288
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 Wachovia Capital Markets, 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 issuance by the Depositor of $266,000,000 aggregate
principal amount of 2.92200% Asset Backed Notes, Class A-1
(the “Class A-1 Notes”), $133,000,000 of which are
being underwritten by the Underwriters (the “Class A-1
Underwritten Notes”), $336,000,000 aggregate principal amount
of Floating Rate Asset Backed Notes, Class A-2 (the
“Class A-2 Notes”), $168,000,000 of which are being
underwritten by the Underwriters (the “Class A-2 Underwritten
Notes”), $210,000,000 aggregate principal amount of 3.94%
Asset Backed Notes, Class A-3a (the “Class A-3a
Notes”), $105,000,000 of which are being
underwritten by the Underwriters (the
“Class A-3a Underwritten Notes”), $107,000,000
aggregate principal amount of Floating Rate Asset Backed Notes,
Class A-3b (the “Class A-3b Notes”), $53,500,000
of which are being underwritten by the Underwriters (the
“Class A-3b Underwritten Notes”) and $181,000,000
aggregate principal amount of 4.74% Asset Backed Notes,
Class A-4 (the “Class A-4 Notes”), $90,500,000 of
which are being underwritten by the Underwriters (the “Class
A-4 Underwritten Notes”) of World Omni Auto Receivables Trust
2008-A (the “Trust”) under the terms and conditions
herein contained. The Class A -1 Notes, Class A-2 Notes,
Class A-3a Notes, Class A-3b Notes and Class A-4
Notes are collectively referred to herein as the “Offered
Notes”. The Class A-1 Underwritten Notes, Class A-2
Underwritten Notes, Class A-3a Underwritten Notes,
Class A-3b Underwritten, Notes and Class A-4 Underwritten
Notes are collectively referred to herein as the
“Underwritten Notes”. The Offered Notes are to be
issued together with $70,588,000 aggregate principal amount of
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.
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 March 11, 2008 (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.
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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
11:00 a.m. on March 12, 2008 (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 March 11, 2008 and the
base prospectus dated March 11, 2008 (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 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 March 11, 2008 included in the
Prospectus; the “Prospectus Supplement” means the
prospectus supplement dated the date
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hereof included in the Prospectus. The
Depositor has filed the Preliminary Prospectus on March 11,
2008, 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, 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.
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(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.
(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
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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 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.
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(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 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,
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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 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
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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.
(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 Underwritten 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 Underwritten 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, 99.83000%, (ii) in the case of the
Class A-2 Notes, 99.79000%, (iii) in the case of the
Class A-3a Notes, 99.67600%, (iv) in the case of the
Class A-3b Notes, 99.69000%, and (v) in the case of the
Class A-4 Notes, 99.66898%.
Each Class of Underwritten
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 Underwritten Notes will be
represented by book entries on the records of DTC and participating
members thereof. Definitive instruments evidencing the Underwritten
Notes will be available only under the limited circumstances
specified in the Indenture.
The Depositor will deliver
the Underwritten 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 March 20,
2008 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 Underwritten
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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.
4. Certain Agreements of
the Underwriters .
(a) It is understood that the
Underwriters propose to offer the Underwritten 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 Underwritten 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 Underwritten 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 Underwritten 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
Underwritten 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 Underwritten 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
Underwritten 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
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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
Underwritten 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 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 Underwritten 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 Underwritten 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 not 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 Underwritten 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
11
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]
(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 Underwritten 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
Underwritten 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
Underwritten 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 Underwritten 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
12
Omni, (iv) the fees charged by each
of Moody’s Investors Service, Inc.
(“Moody’s”) and Standard & Poor’s
Ratings Services, a division of The McGraw-Hill Companies, Inc.
(“Standard & Poor’s” and, together with
Moody’s, the “Rating Agencies”) in connection
with the rating of 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 Underwritten 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.
(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 Underwritten Notes and
the offering thereof; and
(iii) “ Computer
Tape Information ” means written information regarding
the Underwritten Notes or the related receivables contained in the
electronic data file WO010301.zip furnished by the Depositor to
Credit Suisse Securities (USA) LLC by email on January 29,
2008.
13
(b) The Depositor will not
disseminate to any potential investor any information relating to
the Underwritten 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 Underwritten 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:
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
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