Exhibit 1.1
$--------------------
WACHOVIA AUTO OWNER TRUST 200__-__
$_________________ _______% Class A-1 Asset Backed Notes
$_________________ _______% Class A-2 Asset Backed Notes
$_________________ _______% Class A-3 Asset Backed Notes
$_________________ _______% Class A-4 Asset Backed Notes
$_________________ _______% Class A-5 Asset Backed Notes
$_________________ _______% Class B Asset Backed Notes
POOLED AUTO SECURITIES SHELF LLC
Depositor
UNDERWRITING AGREEMENT
______________ ___, 200__
Wachovia Capital Markets, LLC
as Representative of
the several Underwriters
One Wachovia Center
301 South College Street, NC06010
Charlotte, North Carolina 28288-06010
Dear Sirs:
Pooled Auto Securities Shelf LLC, a Delaware limited liability
company
(the "Depositor"), hereby confirms its agreement with Wachovia
Capital
Markets, LLC ("Wachovia") and each of the other underwriters named
in Schedule
A hereto (collectively, the "Underwriters", which term shall also
include any
underwriter substituted as hereinafter provided in Section 10), for
whom
Wachovia is acting as representative (in such capacity, the
"Representative"),
with respect to the sale by the Depositor and the purchase by
the
Underwriters, acting severally and not jointly, of the respective
principal
amounts set forth in Schedule A of $_______________ aggregate
principal amount
of _____% Class A-1 Asset Backed Notes (the "Class A-1 Notes"),
$_______________ aggregate principal amount of _____% Class A-2
Asset Backed
Notes (the "Class A-2 Notes"), $_______________ aggregate principal
amount of
_____% Class A-3 Asset Backed Notes (the "Class A-3 Notes"),
$_______________
aggregate principal amount of _____% Class A-4 Asset Backed Notes
(the "Class
A-4 Notes") and $_______________ aggregate principal amount of
_____% Class A
5 Asset Backed Notes (the "Class A 5 Notes" and, together with the
Class A 1
Notes, the Class A 2 Notes, the Class A 3 Notes and the Class A-4
Notes, the
"Underwritten Notes") of the Wachovia Auto Owner Trust 2005-B (the
"Trust")
under the terms and conditions contained herein.
Simultaneously with the issuance and sale of the Underwritten Notes
as
contemplated herein, the Trust will issue (i) $___________
aggregate principal
amount of _____% Class B Asset Backed Notes (the "Direct Purchase
Notes") and,
together with the Underwritten Notes, the "Notes") and (ii) the
Wachovia Auto
Owner Trust 200__-__ Asset Backed Certificates (the
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"Certificates" and, together with the Notes, the "Securities"). The
Direct
Purchase Notes and the Certificates will be sold by the Depositor
to PASS
Holding LLC ("Pass Holding") pursuant to a purchase agreement,
dated
______________ __, 200__ (the "Purchase Agreement"), between the
Depositor and
Pass Holding. The Notes will be issued pursuant to an indenture,
dated as of
______________1, 200__ (the "Indenture"), between the Trust and
______________________, as trustee (the "Indenture Trustee"). The
Trust was
created and the Certificates will be issued pursuant to an amended
and
restated trust agreement, dated as of ______________________1,
200__ (the
"Trust Agreement"), between the Depositor and
_____________________, as
trustee (the "Owner Trustee"). Each Note will represent an
obligation of the
Trust, each Certificate will represent an undivided beneficial
interest in the
Trust and the Certificates will be subordinated to the Notes to the
extent
described in the Indenture and the Trust Agreement.
The
assets of the Trust will include, among other things, (i) a pool
of
motor vehicle retail installment sale contracts (the "Receivables")
secured by
the new and used motor vehicles financed thereby (the "Financed
Vehicles"),
(ii) certain monies payable under the Receivables after
___________________
____, 200__ and, with respect to Receivables transferred after the
Closing
Time, after the related cut-off date, (iii) security interests in
the Financed
Vehicles, (iv) amounts on deposit in certain accounts, (v) certain
rights
under a receivables purchase agreement, dated as of _____________
1, 200__
(the "Receivables Purchase Agreement"), between Wachovia Bank,
National
Association (the "Bank") and the Depositor, pursuant to which the
Bank will
sell the Receivables to the Depositor, (vi) certain rights under a
sale and
servicing agreement, dated as of _____________ 1, 200__ (the "Sale
and
Servicing Agreement"), among the Trust, the Depositor and the Bank,
as seller
and as master servicer (in such capacities, the "Seller" and the
"Master
Servicer", respectively), pursuant to which the Receivables and
other property
of the Trust will be sold to the Trust and the Receivables will be
serviced by
the Master Servicer and (vii) all proceeds of the foregoing.
Pursuant to the
Indenture, the Trust property will be held by the Indenture Trustee
on behalf
of the holders of the Notes. Pursuant to an administration
agreement, dated as
of _______________ 1, 200__ (the "Administration Agreement"), among
the Bank,
as administrator (in such capacity, the "Administrator"), the
Trust, the
Depositor and the Indenture Trustee, the Administrator will perform
certain
administrative obligations of the Trust under the Indenture, the
Trust
Agreement and the Sale and Servicing Agreement. Capitalized terms
used herein
that are not otherwise defined shall have the meanings ascribed
thereto in the
Indenture or the Sale and Servicing Agreement, as the case may
be.
The
Indenture, the Trust Agreement, the Administration Agreement,
the
Sale and Servicing Agreement, the Receivables Purchase Agreement
and the
depository account control agreement, dated as of ______________ 1,
200__ (the
"Control Agreement"), among Seller, the Trust, the Bank, as account
bank, and
the Indenture Trustee, as secured party, are referred to herein
collectively
as the "Basic Documents".
The
Depositor has prepared and filed with the Securities and
Exchange
Commission (the "Commission"), a registration statement on Form S-3
(File No.
____-__________), [and Amendment No. 1 thereto], including a base
prospectus
and a form of preliminary prospectus supplement relating to the
offering of
asset backed notes and asset backed certificates, issued in series
from time
to time in accordance with Rule 415 of the rules and regulations of
the
Commission (the "Securities Act Regulations") under the Securities
Act of
1933, as amended
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(the "Securities Act"). Such registration statement has been
declared
effective by the Commission. If any post-effective amendment has
been filed
with respect thereto, prior to the execution and delivery of this
Agreement,
such amendment has been declared effective by the Commission.
Promptly after execution and delivery of this Agreement, the
Depositor
will prepare and file with the Commission a final base prospectus
and a final
prospectus supplement relating to the Notes in accordance with the
provisions
of Rule 430B of the Securities Act Regulations ("Rule 430B") and
paragraph (b)
of Rule 424 of the Securities Act Regulations ("Rule 424(b)"). Any
information
included in such base prospectus and prospectus supplement that was
omitted
from such registration statement at the time it became effective
but that is
deemed to be part of and included in such registration statement
pursuant to
Rule 430B is referred to as "Rule 430B Information".
Such
registration statement, at any given time, including the
amendments
thereto to such time, the exhibits and any schedules thereto at
such time, the
documents incorporated by reference pursuant to the Securities Act
and the
Securities Exchange Act of 1934, as amended (the "Exchange Act") at
such time
and documents otherwise deemed to be a part thereof or included
therein by the
Securities Act Regulations, is herein called the "Registration
Statement". The
Registration Statement at the time it originally became effective
is herein
called the "Original Registration Statement". "Base Prospectus"
means the base
prospectus included in the Registration Statement, as amended at
the time of
the filing of the Prospectus. "Preliminary Prospectus" means any
base
prospectus and prospectus supplement used in connection with the
offering of
the Notes that omitted the Rule 430B Information and is used prior
to the
filing of the Prospectus. "Prospectus" means the prospectus
supplement to the
Base Prospectus that is first filed after the Execution Time
pursuant to Rule
424(b) of the Securities Act Regulations, together with the Base
Prospectus,
as amended at the time of such filing, including the documents
incorporated by
reference therein pursuant to the Securities Act at the time of
execution of
this Agreement. "Prospectus Supplement" means the prospectus
supplement to the
Base Prospectus included in the Prospectus.
The
Depositor has included in such Registration Statement, as amended
to
and including the Effective Date (as hereinafter defined), all
information
required by the Securities Act and the Securities Act Regulations
to be
included in the prospectus with respect to the offering of the
Underwritten
Notes. As filed, the Preliminary Prospectus includes all
information with
respect to the offering of the Underwritten Notes required by the
Securities
Act and the Securities Act Regulations. As filed, the Prospectus
shall include
all information with respect to the offering of the Notes required
by the
Securities Act and the Securities Act Regulations and shall be in
all
substantive respects in the form furnished to the Representative
prior to the
Execution Time (as hereinafter defined) or, to the extent not
completed at the
Execution Time, shall contain only such specific additional
information and
other changes (beyond those contained in the latest preliminary
base
prospectus and preliminary prospectus supplement, if any, that have
previously
been furnished to the Representative) as the Depositor has advised
the
Representative, prior to the Execution Time, will be included or
made therein.
As
used herein, "Execution Time" means the date and time this
Agreement
is executed and delivered to the parties hereto and "Effective
Date" means the
date and time as of which the
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Registration Statement was declared effective by the Commission or
the earlier
of the date of filing of a prospectus required under Rule 424
deemed to be
part of the Registration Statement or the date and time of the
first sale of
the Underwritten Notes.
All
references in this Agreement to financial statements and
schedules
and other information which is "contained", "included" or "stated"
in the
Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the
Prospectus (and all other references of like import) shall be
deemed to mean
and include all such financial statements and schedules and other
information
which are or are deemed to be incorporated by reference in or
otherwise deemed
by the Securities Act Regulations to be a part of or included in
the
Registration Statement, any Preliminary Prospectus or the
Prospectus, as the
case may be. All references in this Agreement to the terms
"amend",
"amendments" or "supplements" with respect to the Registration
Statement, the
Base Prospectus, any Preliminary Prospectus or the Prospectus shall
be deemed
to mean and include the filing of any documents under the Exchange
Act after
the Effective Date of the Registration Statement or the issue date
of the Base
Prospectus, any Preliminary Prospectus or the Prospectus, as the
case may be,
which are or are deemed to be incorporated by reference therein or
otherwise
deemed by the Securities Act Regulations to be a part thereof or
included
therein. For purposes of this Agreement, all references to the
Registration
Statement, any Preliminary Prospectus, the Prospectus or any
amendment or
supplement to any of the foregoing shall be deemed to include the
copy filed
with the Commission pursuant to its Electronic Data Gathering,
Analysis and
Retrieval system ("EDGAR").
Section 1. Representations and Warranties.
(a)
Representations and Warranties by the Depositor. The Depositor
represents and warrants to the Underwriters as of the date hereof,
the
Applicable Time referred to in Section 1(a)(ii) and as of the
Closing Time
referred to in Section 2(b) and agrees with the Underwriters as
follows:
(i) Compliance with Registration Requirements.
(A) The Depositor meets the requirements for use of Form S-3
under the Securities Act.
(B) If the Registration Statement contains the undertaking
specified by Regulation S-K Item 512(a), the Registration
Statement,
at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(C) At the time of filing the Original Registration Statement,
at the earliest time thereafter that the Depositor or another
offering participant made a bona fide offer (within the meaning
of
Rule 164(h)(2) of the Securities Act Regulations) of the Notes
and
at the date hereof, the Depositor was not and is not an
"ineligible
issuer", as defined in Rule 405 of the Securities Act
Regulations.
(D) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
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(ii) Registration Statement, Prospectus and Disclosure at Time
of
Sale.
(A) The Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of
the
Registration Statement has been issued under the Securities Act
and
no proceedings for that purpose have been instituted or are
pending
or, to the knowledge of the Depositor, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
(B) At the respective times that the Original Registration
Statement, and each amendment thereto, became effective, at
each
deemed effective date with respect to the Underwriters pursuant
to
Rule 430B(f)(2) and at the Closing Time, the Registration
Statement
complied and will comply in all material respects with the
requirements of the Securities Act, the Securities Act
Regulations,
the Trust Indenture Act and the rules and regulations of the
Commission under the Trust Indenture Act and did not and will
not
contain an untrue statement of a material fact or omit to state
a
material fact required to be stated therein or necessary to make
the
statements therein not misleading. Neither the Prospectus nor
any
amendment or supplement thereto, at the time the Prospectus or
any
such amendment or supplement was issued and at the Closing
Time,
included or will include an untrue statement of a material fact
or
omitted or will 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.
(C) Any Preliminary Prospectus and the prospectus filed as part
of the Original Registration Statement or as part of any
amendment
thereto, or filed pursuant to Rule 424 of the Securities Act
Regulations, complied when so filed in all material respects
with
the Securities Act Regulations and any Preliminary Prospectus
and
the Prospectus delivered to the Underwriters for use in
connection
with the offering of the Underwritten Notes will, at the time
of
such delivery, be identical to any electronically transmitted
copies
thereof filed with the Commission pursuant to EDGAR, except to
the
extent permitted by Regulation S-T.
(D) As of the Applicable Time, neither (1) the Issuer General
Use Free Writing Prospectus(es) (as defined below) issued at or
prior to the Applicable Time (as defined below), the Statutory
Prospectus (as defined below) and the information included on
Schedule B hereto, all considered together (collectively, the
"General Disclosure Package"), nor (2) any individual Issuer
Limited
Use Free Writing Prospectus, when considered together with the
General Disclosure Package, included any untrue statement of a
material fact or omitted 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.
(E) Each Issuer Free Writing Prospectus, as of its issue date
and at all subsequent times through the completion of the
public
offer and sale of the Notes or until any earlier date that the
Depositor notified or notifies the
5
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Representative as described in the next sentence, did not, does
not
and will not include any information that conflicted, conflicts
or
will conflict with the information contained in the
Registration
Statement or the Prospectus, including any document incorporated
by
reference therein and any Preliminary Prospectus or other
prospectus
deemed to be a part thereof that has not been superseded or
modified. If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or
development
as a result of which such Issuer Free Writing Prospectus
conflicted
or would conflict with the information contained in the
Registration
Statement or included or would include an untrue statement of a
material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light
of
the circumstances prevailing at that subsequent time, not
misleading, the Depositor will promptly notify the
Representative
and will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission.
As used in this subsection and elsewhere in this Agreement:
"Applicable Time" means ______ a.m., New York City time, on
_________ ___, 2006 or such other time as agreed by the Depositor
and the
Representative.
"Statutory Prospectus" as of any time means the prospectus
relating
to
the Underwritten Notes that is included in the Registration
Statement
immediately prior to that time, including any document incorporated
by
reference therein and any prospectus supplement deemed to be a
part
thereof. For purposes of this definition, information contained in
a form
of
prospectus that is deemed retroactively to be part of the
Registration
Statement pursuant to Rule 430B shall be considered to be included
in the
Statutory Prospectus as of the actual time that form of prospectus
is
filed with the Commission pursuant to Rule 424(b).
"Issuer Free Writing Prospectus" means any "issuer free writing
prospectus", as defined in Rule 433 of the Securities Act
Regulations
("Rule 433"), relating to the Notes that (i) is required to be
filed with
the
Commission by the Depositor, (ii) is a "road show that is a
written
communication" within the meaning of Rule 433(d)(8)(i), whether or
not
required to be filed with the Commission, or (iii) is exempt from
filing
pursuant to Rule 433(d)(5)(i) because it contains a description of
the
Notes or of the offering that does not reflect the final terms, in
each
case
in the form filed or required to be filed with the Commission or,
if
not
required to be filed, in the form retained in the Depositor's
records
pursuant to Rule 433(g).
"Issuer General Use Free Writing Prospectus" means any Issuer
Free
Writing Prospectus that is intended for general distribution to
prospective investors, and is specified in Schedule C hereto.
"Issuer Limited Use Free Writing Prospectus" means any Issuer
Free
Writing Prospectus that is not an Issuer General Use Free
Writing
Prospectus.
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Notwithstanding the foregoing, the representations and warranties
in
this
subsection shall not apply to statements in or omissions from
the
Registration Statement, and Issuer Free Writing Prospectus or
the
Prospectus made in reliance upon and in conformity with written
information furnished to the Depositor in writing by any
Underwriter
through the Representative expressly for use therein.
(iii) Incorporated Documents. The documents incorporated or
deemed
to
be incorporated by reference in the Registration Statement, 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
Exchange Act and the rules and regulations of the Commission
thereunder
(the
"Exchange Act Regulations") and, when read together with the
other
information in the Prospectus, at the Effective Date and at the
Closing
Time, did not and will not include an untrue statement of a
material fact
required to be stated therein 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.
(iv) No Material Adverse Change. Since the respective dates as
of
which information is given in the Registration Statement, the
General
Disclosure Package and the Prospectus, except as otherwise set
forth
therein, (A) there has been no material adverse change in the
condition,
financial or otherwise, or in the earnings, business affairs or
business
prospects of the Depositor, whether or not arising in the ordinary
course
of
business, or in the ability of the Depositor to perform its
obligations under this Agreement and each Basic Document to which
it is a
party (a "Material Adverse Effect") and (B) there have been no
transactions entered into by the Depositor, other than those in
the
ordinary course of business, which are material with respect to
it.
(v) Due Organization of the Depositor. The Depositor has been
duly
formed and is validly existing as a limited liability company under
the
laws
of the State of Delaware, and all filings required at the date
hereof under the Delaware Limited Liability Company Act (6 Del.
C.
ss.18-101, et seq.) (the "LLC Act") 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
Registration Statement and the Prospectus and to enter into and
to
perform its obligations under each Basic Document to which it is a
party
(collectively, the "Depositor Agreements"), this Agreement and
the
Securities; and the Depositor is duly qualified or registered as
a
foreign limited liability company 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 or
register
or
to be in good standing would not result in a Material Adverse
Effect.
(vi) Authorization of this Agreement. This Agreement has been
duly
authorized, executed and delivered by the Depositor.
(vii) Authorization of Basic Documents. As of the Closing Time,
each
Depositor Agreement has been duly authorized, executed and
delivered by
the
Depositor, and, assuming the due authorization, execution and
delivery thereof by the other parties
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thereto, will constitute a valid and binding agreement of the
Depositor,
enforceable against it in accordance with its terms, except as
the
enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting
enforcement of creditors' rights generally and except as
enforcement
thereof is subject to general principles of equity (regardless of
whether
enforcement is considered in a proceeding in equity or at law).
(viii) Issuance of the Notes. The Notes have been duly
authorized
and,
at the Closing Time, will have been duly executed and, when
authenticated, issued and delivered in the manner provided for in
the
Indenture and delivered against payment of the purchase price
therefor as
provided in this Agreement, will constitute valid and binding
obligations
of
the Trust, enforceable against the Trust in accordance with
their
terms, except as the enforcement thereof may be subject to or
limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws
affecting enforcement of creditors' rights generally and except
as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding
in
equity or at law), and will be in the form contemplated by, and
entitled
to
the benefits of, the Indenture.
(ix) Issuance of the Certificates. The Certificates have been
duly
authorized and, at the Closing Time, will have been duly executed
and,
when
authenticated, issued and delivered in the manner provided for
in
the
Trust Agreement, will be validly issued, fully paid,
non-assessable
and
outstanding and will be in the form contemplated by, and entitled
to
the
benefits of, the Trust Agreement.
(x) Description of the Securities and Basic Documents. The
Securities and the Basic Documents conform in all material respects
to
the
descriptions thereof and the statements relating thereto contained
in
the
Registration Statement and the Prospectus.
(xi) Absence of Defaults and Conflicts. The Depositor is not in
violation of its limited liability company agreement or in default
in the
performance or observance of any obligation, agreement, covenant
or
condition contained in any contract, indenture, mortgage, deed of
trust,
loan
or credit agreement, note, lease or other agreement or 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 (collectively, the "Agreements
and
Instruments"), except for violations or defaults that would
not,
individually or in the aggregate, result in a Material Adverse
Effect;
and
the execution, delivery and performance by the Depositor of the
Depositor Agreements, this Agreement and the Securities, the
consummation
of
the transactions contemplated herein and therein, in the
Registration
Statement and in the Prospectus and compliance by it with its
obligations
hereunder and thereunder have been duly and validly authorized by
all
necessary action and do not and will not, whether with or without
the
giving of notice or passage of time or both, conflict with or
constitute
a
breach of, a default or Repayment Event (as defined below) under,
or
result in the creation or imposition of any lien, mortgage,
pledge,
charge, encumbrance, adverse claim or other security interest
(collectively, "Liens") upon any of its property or assets pursuant
to
the
Agreements and Instruments except for Liens permitted by the
Basic
Documents and conflicts, breaches or defaults that, individually or
in
the
aggregate, will
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not
result in a Material Adverse Effect, nor will such action result
in
any
violation of the provisions of its limited liability company
agreement or any applicable law, statute, rule, regulation,
judgment,
order, writ or decree of any government, government instrumentality
or
court, domestic or foreign, having jurisdiction over the Depositor
or any
of
its assets, properties or operations. As used herein, a
"Repayment
Event" means any event or condition which gives the holder of any
note,
debenture or other evidence of indebtedness (or any person acting
on such
holder's behalf) the right to require the repurchase, redemption
or
repayment of all or a portion of such indebtedness by the
Depositor.
(xii) Absence of Proceedings. There is no action, suit,
proceeding,
inquiry or investigation before or brought by any court or
governmental
agency or body, domestic or foreign, now pending or, to the
knowledge of
the
Depositor, threatened, against or affecting the Depositor which
is
required to be disclosed in the Registration Statement and the
Prospectus
(other than as stated therein or in a document incorporated by
reference
therein), or which might reasonably be expected to result in a
Material
Adverse Effect, or which might reasonably be expected to materially
and
adversely affect its properties or assets; the aggregate of 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 which are
not
described in the Registration Statement and the Prospectus,
including
ordinary routine litigation incidental to the business, could
not
reasonably be expected to result in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or
documents
which are required to be described in the Registration Statement,
the
Prospectus or the documents incorporated by reference therein which
have
not
been so described and filed as required.
(xiv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court, governmental authority or
agency
or
any other person is necessary in connection with the (A) issuance
of
the
Securities and the offering and sale of the Notes, (B)
authorization,
execution, delivery and performance by the Depositor of the
Depositor
Agreements and this Agreement or (C) consummation by the Depositor
of the
transactions contemplated hereby or thereby, except such as have
been
obtained and are in full force and effect as of the Closing
Time.
(xv) Possession of Licenses and Permits. The Depositor possesses,
or
as
of the Closing Time shall possess or shall have applied for,
such
permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the
appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary
to
conduct the business now operated by it; the Depositor is in
compliance with the terms and conditions of all such
Governmental
Licenses, except where the failure so to comply would not, singly
or in
the
aggregate, have a Material Adverse Effect; all of the
Governmental
Licenses are valid and in full force and effect, except when
the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have
a
Material Adverse Effect or would render a material portion of
the
Receivables unenforceable; and the Depositor has not received any
notice
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of
proceedings relating to the revocation or modification of any
such
Governmental Licenses which, singly or in the aggregate, if the
subject
of
an unfavorable decision, ruling or finding, would result in a
Material
Adverse Effect or would render a material portion of the
Receivables
unenforceable.
(xvi) Title to Receivables; Payment of Fees. As of the Closing
Time
the Depositor will have good
and marketable title to, and will be the
sole
owner of each Receivable, free and clear of Liens other than
the
Lien
in favor of the Indenture Trustee under the Indenture; all
taxes,
fees
and other governmental charges arising in connection with the
transactions contemplated by this Agreement and the Basic Documents
and
with
the execution and delivery of the Receivables, including any
amendments thereto and assignments and/or endorsements thereof,
have been
paid
by the Depositor.
(xvii) Investment Company Act. Neither the Depositor nor the
Trust
is
required to be registered as an "investment company" under the
Investment Company Act of 1940, as amended (the "Investment
Company
Act").
(xviii) Incorporation of Representations and Warranties. The
representations and warranties of the Depositor in each
Depositor
Agreement are true and correct in all material respects and are
hereby
incorporated by reference herein and restated for the benefit of
the
Underwriters with the same effect as if set forth in full
herein.
(b)
Officer's Certificates. Any certificate signed by any officer of
the
Depositor or any of its Affiliates and delivered at the Closing
Time to the
Representative or to counsel for the Underwriters shall be deemed
a
representation and warranty by the Depositor or such Affiliate, as
the case
may be, to the Underwriters as to the matters covered thereby. When
used in
this Agreement, the term "Affiliate" shall have the meaning
assigned by Rule
501(b) of the Securities Act Regulations.
Section 2. Sale and Delivery to the Underwriters; Closing.
(a)
Purchase of Underwritten Notes. On the basis of the
representations,
warranties and agreements herein contained and subject to the terms
and
conditions herein set forth, the Depositor agrees to sell to the
Underwriters,
and the Underwriters severally agree to purchase from the
Depositor, the
aggregate principal amount of Underwritten Notes set forth opposite
each
Underwriter's name on Schedule A at a purchase price equal to, in
the case of
(i) the Class A-1 Notes, ___________% of the principal amount
thereof, (ii)
the Class A-2 Notes, _________% of the principal amount thereof,
(iii) the
Class A-3 Notes, _________% of the principal amount thereof, (iv)
the Class
A-4 Notes ____________% of the principal amount thereof and (v) the
Class A-5
Notes ___________% of the principal amount thereof.
(b)
Payment. Payment of the purchase price, and delivery of
certificates,
for the Underwritten Notes shall be made at the offices of Sidley
Austin LLP,
555 California Street, San Francisco, California 94104, or at such
other place
as shall be agreed upon by the Representative and the Depositor, at
10:00 A.M.
(New York time) on ___________ ___, 200__, or such other time not
later than
five business days after such date as shall be agreed upon by
the
Representative and the Depositor (such date and time of payment and
delivery
being called the
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<PAGE>
"Closing Time"). Pursuant to Rule 15c6-1(d) of the Exchange Act
Regulations,
the parties hereto have agreed that the Closing Time will be not
less than
five business days following the date hereof.
Each
class of Notes will initially be represented by one or more
certificates registered in the name of Cede & Co., as nominee
of The
Depository Trust Company ("DTC"). The interests of beneficial
owners of the
Notes will be represented by book entries on the records of DTC
and
participating members thereof. Certificates for the Securities
shall be made
available for examination by the Representative in The City of San
Francisco
not later than 10:00 A.M. (New York time) on the business day prior
to the
Closing Time.
Delivery of the Underwritten Notes shall be made against payment of
the
purchase price by wire transfer of immediately available funds to a
bank
account designated by the Depositor.
Section 3. Covenants of the Depositor. The Depositor covenants with
each
Underwriter as follows:
(a) Compliance with Securities Act Regulations and Commission
Requests. The Depositor, subject to Section 3(b), will comply with
the
requirements of Rules 424(b) and 430B, if and as applicable, and
will
notify the Representative immediately, and confirm the notice in
writing,
of
(i) the effectiveness of any post-effective amendment to the
Registration Statement or the filing of any supplement or amendment
to
the
Prospectus, (ii) the receipt of any comments from the
Commission,
(iii) any request by the Commission for any amendment to the
Registration
Statement or any amendment or supplement to the Prospectus or
any
documents incorporated by reference therein or otherwise deemed to
be a
part
thereof or for additional information, (iv) the issuance by the
Commission of any stop order suspending the effectiveness of
the
Registration Statement or of any order preventing or suspending the
use
of
any preliminary prospectus, or of the suspension of the
qualification
of
the Underwritten Notes for offering or sale in any jurisdiction, or
of
the
initiation or threatening of any proceedings for any of such
purposes
or
(v) the happening of any event during the period referred to in
Section 3(d) which, in the judgment of the Depositor, makes the
Registration Statement or the Prospectus contain an untrue
statement of a
material fact or omit to state a material fact required to be
stated
therein or necessary in order to make the statements therein, in
the
light of the circumstances existing at the time it is delivered or
made
available to a purchaser, not misleading. The Depositor will effect
the
filings required under Rule 424(b), in the manner and within the
time
period required by Rule 424(b) (without reliance on Rule
424(b)(8)), and
will
take such steps as it deems necessary to ascertain promptly
whether
the
Prospectus transmitted for filing under Rule 424(b) was received
for
filing by the Commission and, in the event that it was not, it
will
promptly file the Prospectus. The Depositor will make every
reasonable
effort to prevent the issuance of any stop order and, if any stop
order
is
issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Depositor will give the
Representative
notice of its intention to file or prepare any amendment to the
Registration Statement, any amendment, supplement or revision to
either
any
preliminary prospectus (including any
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<PAGE>
prospectus included in the Original Registration Statement or
amendment
thereto at the time it became effective) or to the Prospectus,
whether
pursuant to the Securities Act, the Exchange Act or otherwise, and
the
Depositor will furnish the Representative with copies of each
such
document a reasonable amount of time prior to such proposed filing
or
use,
as the case may be, and will not file or use any such document
to
which the Representative or counsel for the Underwriters shall
object.
(c)
Delivery of Registration Statements. The Depositor has furnished
or
will deliver to the Representative and counsel for the
Underwriters, without
charge, a signed copy of the Original Registration Statement and of
each
amendment thereto (including exhibits filed therewith or
incorporated by
reference therein and documents incorporated or deemed to be
incorporated by
reference therein or otherwise deemed to be a part thereof) and a
signed copy
of all consents and certificates of experts, and will also deliver
to the
Representative, without charge, a conformed copy of the Original
Registration
Statement and of each amendment thereto (without exhibits) for each
of the
Underwriters. The copies of the Original Registration Statement and
each
amendment thereto furnished to the Underwriters will be identical
to any
electronically transmitted copies thereof filed with the Commission
pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(d)
Delivery of Offering Documents. The Depositor will deliver to
each
Underwriter, without charge, as many copies of any Preliminary
Prospectus as
such Underwriter may reasonably request, and the Depositor hereby
consents to
the use of such copies for purposes permitted by the Securities
Act. The
Depositor will furnish to each Underwriter, without charge, during
the period
when a prospectus is required to be delivered under the Securities
Act or the
Exchange Act, such number of copies of the Prospectus as such
Underwriter may
reasonably request. The Prospectus and any amendments or
supplements thereto
furnished to the Underwriters will be identical to any
electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except
to the extent permitted by Regulation S-T.
(e)
Continued Compliance with Securities Laws. The Depositor will
comply
with the Securities Act and the Securities Act Regulations, the
Exchange Act
and the Exchange Act Regulations and the Trust Indenture Act
Regulations so as
to permit the completion of the distribution of the Underwritten
Notes as
contemplated in this Agreement, the Basic Documents, the
Registration
Statement and the Prospectus. If at any time when a prospectus is
required by
the Securities Act or the Exchange Act to be delivered in
connection with
sales of the Underwritten Notes, any event shall occur or condition
shall
exist as a result of which it is necessary, in the opinion of
counsel for the
Underwriters or counsel to the Depositor, to amend the Registration
Statement
or to amend or supplement the Prospectus in order that the
Registration
Statement or the Prospectus will not include an untrue statement of
a material
fact or omit to state a material fact necessary in order to make
the
statements therein not misleading in the light of the circumstances
existing
at the time it is delivered to a purchaser, or if it shall be
necessary, in
the opinion of such counsel, at any such time to amend the
Registration
Statement or amend or supplement the Prospectus in order to comply
with the
requirements of the Securities Act or the Securities Act
Regulations, the
Depositor will
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<PAGE>
promptly prepare and file with the Commission, subject to the
review and
approval provisions afforded to the Representative described in
Section 3(b),
such amendment or supplement as may be necessary to correct such
statement or
omission or to make the Registration Statement or the Prospectus
comply with
such requirements, the Depositor will use its best efforts to have
such
amendment declared effective as soon as practicable and the
Depositor will
furnish to the Underwriters, without charge, such number of copies
of such
amendment or supplement as the Underwriters may reasonably request.
If at any
time following issuance of an Issuer Free Writing Prospectus there
occurred or
occurs an event or development as a result of which such Issuer
Free Writing
Prospectus conflicted or would conflict with the information
contained in the
Registration Statement or included or would include an untrue
statement of a
material fact or omitted or would omit to state a material fact
necessary in
order to make the statements therein, in the light of the
circumstances
prevailing at that subsequent time, not misleading, the Depositor
will
promptly notify the Representative and will promptly amend or
supplement, at
its own expense, such Issuer Free Writing Prospectus to eliminate
or correct
such conflict, untrue statement or omission.
(f)
State Securities Law Qualifications. The Depositor will use its
best
efforts, in cooperation with the Underwriters, in arranging for
the
registration and qualification of the Notes for offering and sale
and the
determination of their eligibility for investment, as the case may
be, under
the laws of such jurisdictions as the Underwriters designate and
will continue
to assist the Underwriters in maintaining such registrations
and
qualifications in effect for a period of not less than one year
from the date
of the Prospectus and in filing such consents to service of process
or other
documents as may be necessary in order to effect such registrations
and
qualifications; provided, however, that the Depositor shall not be
obligated
to file any general consent to service of process or to qualify as
a foreign
limited liability company or as a dealer in securities in any
jurisdiction in
which it is not so qualified or to subject itself to taxation in
respect of
doing business in any jurisdiction in which it is not otherwise so
subject.
The Depositor will also supply the Underwriters with such
information as is
necessary for the determination of the legality of the offering and
sale of
the Notes for investment under the laws of such jurisdictions as
the
Underwriters may reasonably request.
(g)
Earnings Statement. The Depositor will timely file such reports
pursuant to the Exchange Act as are necessary in order to cause the
Trust to
make generally available to holders of the Notes as soon as
practicable an
earnings statement for the purposes of, and to provide to the
Underwriters the
benefits contemplated by, the last paragraph of Section 11(a) of
the
Securities Act and Rule 158 under the Securities Act.
(h)
Use of Proceeds. The Depositor shall cause the Trust to use the
net
proceeds received by it from the sale of the Notes in the manner
specified in
the Base Prospectus under "Use of Proceeds".
(i)
Reports, Statements and Certificates. So long as any
Underwritten
Notes are outstanding, the Depositor shall deliver or cause to be
delivered to
the Underwriters, as soon as copies become available, copies of (i)
each
payment date certificate delivered to Securityholders pursuant to
Section 4.09
of the Sale and Servicing Agreement, (ii) the
13
<PAGE>
annual statements of compliance, annual independent certified
public
accountants' reports and annual opinions of counsel furnished to
the Indenture
Trustee or the Owner Trustee pursuant to the Basic Documents, as
soon as such
statements, reports and opinions are furnished to the Indenture
Trustee or the
Owner Trustee, as the case may be, (iii) all documents of the
Depositor or the
Trust required to be filed with the Commission pursuant to the
Exchange Act or
any order of the Commission thereunder and (iv) such other
information
concerning the Depositor, the Trust or the Securities as the
Underwriters may
reasonably request from time to time.
(j)
Reporting Requirements. The Depositor, during the period when
the
Prospectus is required to be delivered under the Securities Act or
the
Exchange Act, will file all documents required to be filed with the
Commission
pursuant to the Exchange Act within the time periods required by
the Exchange
Act and the Exchange Act Regulations.
(k)
Issuer Free Writing Prospectuses. The Depositor represents and
agrees
that, unless it obtains the prior consent of the Representative,
and each
Underwriter represents and agrees that, unless it obtains the prior
consent of
the Depositor and the Representative, it has not made and will not
make any
offer relating to the Notes that would constitute (i) an "issuer
free writing
prospectus", as defined in Rule 433, or (ii) that would otherwise
constitute a
"free writing prospectus", as defined in Rule 405, in either case,
required to
be filed with the Commission. Any such free writing prospectus
consented to by
the Depositor and the Representative is hereinafter referred to as
a
"Permitted Free Writing Prospectus". The Depositor represents that
it has
treated or agrees that it will treat each Permitted Free Writing
Prospectus as
an "issuer free writing prospectus", as defined in Rule 433, and
has complied
and will comply with the requirements of Rule 433 applicable to any
Permitted
Free Writing Prospectus, including timely filing with the
Commission where
required, legending and record keeping. If any Underwriter uses
a
"free-writing prospectus", as defined in Rule 405, not required to
be filed
with the Commission, such Underwriter will, pursuant to reasonable
procedures
developed in good faith, retain copies of each such free writing
prospectus in
accordance with Rule 433. Promptly following the request of the
Depositor, any
Underwriter using a free writing prospectus will provide a copy of
such free
writing prospectus to the Depositor.
Section 4. Payment of Expenses.
(a)
Expenses. The Depositor shall pay all of its own expenses incident
to
the performance of its obligations under this Agreement, including
without
limitation (i) the preparation, printing and filing of the
Registration
Statement, any Preliminary Prospectus, the Prospectus and each
amendment or
supplement thereto, (ii) the preparation, reproduction and delivery
to the
Underwriters of this Agreement, any agreement among the
Underwriters, each
Basic Document and each other document as may be required in
connection with
the issuance and delivery of the Securities or the offering,
purchase or sale
of the Notes, (iii) the preparation, issuance and delivery of the
certificates
for the (A) Underwritten Notes to the Underwriters and (B) Direct
Purchase
Notes and the Certificates to Pass Holding, (iv) the fees and
expenses of the
counsel, accountants and other advisors of the Depositor and any of
its
Affiliates in connection with the transactions contemplated by this
Agreement,
(v) the qualification of the Underwritten
14
<PAGE>
Notes under state securities laws in accordance with the provisions
of Section
3(f), including filing fees and the reasonable fees and
disbursements of
counsel for the Underwriters in connection therewith, (vi) the
printing and
delivery to the Underwriters of copies of any Preliminary
Prospectus, any
Permitted Free Writing Prospectus, the Prospectus and any
amendments or
supplements thereto, (vii) any fees and expenses of the Owner
Trustee and the
Indenture Trustee, including the reasonable fees and disbursements
of their
respective counsel in connection with the transactions contemplated
by this
Agreement, (viii) any fees payable to Moody's Investors
Service,
