$1,800,000,000
WACHOVIA STUDENT LOAN TRUST
2005-1
$152,000,000 Floating Rate Class A-1
Student Loan-Backed Notes
$278,000,000 Floating Rate Class A-2
Student Loan-Backed Notes
$192,000,000 Floating Rate Class A-3
Student Loan-Backed Notes
$296,000,000 Floating Rate Class A-4
Student Loan-Backed Notes
$395,000,000 Floating Rate Class A-5
Student Loan-Backed Notes
$433,000,000 Floating Rate Class A-6
Student Loan-Backed Notes
$54,000,000 Floating Rate Class B Student
Loan-Backed Notes
WACHOVIA EDUCATION LOAN FUNDING
LLC
Depositor
UNDERWRITING AGREEMENT
November 16, 2005
Wachovia Education Loan Funding 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 $152,000,000 aggregate principal amount of Floating
Rate Class A-1 Student Loan-Backed Notes (the “Class A-1
Notes”), $278,000,000 aggregate principal amount of Floating
Rate Class A-2 Student Loan-Backed Notes (the “Class A-2
Notes”), $192,000,000 aggregate principal amount of Floating
Rate Class A-3 Student Loan-Backed Notes (the “Class A-3
Notes”), $296,000,000 aggregate principal amount of Floating
Rate Class A-4 Student Loan-Backed Notes (the “Class A-4
Notes”), $395,000,000 aggregate principal amount of Floating
Rate Class A-5 Student Loan-Backed Notes (the “Class A-5
Notes”), and $433,000,000 aggregate principal amount of
Floating Rate Class A-6 Student Loan-Backed Notes (the “Class
A-6 Notes” and, together with the Class A-1 Notes, the Class
A-2 Notes, the Class A-3 Notes, the Class A-4 Notes and the Class
A-5 Notes, the “Class A Notes” or the
“Underwritten Notes”) of the Wachovia Student Loan
Trust 2005-1 (the “Trust”), under the terms and
conditions contained herein. Capitalized terms used herein
that are not otherwise defined shall have the meanings given such
terms in the Indenture (as defined below).
Simultaneously with the issuance and sale
of the Underwritten Notes as contemplated herein, the Trust will
issue $54,000,000 aggregate principal amount of Floating Rate Class
B Student Loan-Backed Notes (the “Class B Notes” and,
together with the Class A Notes, the “Notes”) and the
Wachovia Student Loan Trust 2005-1 Excess Distribution Certificates
(the “Certificates” and, together with the Notes, the
“Securities”).
The Notes will be issued pursuant to an
indenture, dated as of November 29, 2005 (the
“Indenture”), between the Trust, Chase Bank USA,
National Association, as eligible lender trustee (the
“Eligible Lender Trustee”) and Wells Fargo Bank,
National Association, as indenture 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 November 29, 2005 (the “Trust Agreement”),
between the Depositor, the Eligible Lender Trustee and the
Indenture 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 pledged under the
Indenture will primarily consist of (collectively, the
“Collateral”), (i) the Trust Student Loans, and all
obligations of the Obligors thereunder including all moneys accrued
and paid thereunder after the applicable Cutoff Date and all Trust
Student Loan Files and guaranties and other rights relating to the
Trust Student Loans (collectively, the “Receivables”);
(ii) the Master Servicing Agreement, including the right of the
Issuer to cause the Master Servicer to purchase Trust Student Loans
from the Issuer under circumstances described therein; (iii) the
Contribution Agreement, including the right of the Issuer to cause
the Depositor to repurchase Trust Student Loans from the Issuer
under the circumstances described therein and including the rights
of the Depositor under the Purchase Agreements; (iv) the Purchase
Agreements, to the extent that the rights of the Depositor
thereunder have been assigned to the Issuer pursuant to the
Contribution Agreement, including the rights of the Depositor to
cause Wachovia Education Finance Inc. (“WEF”) or
Wachovia Bank, National Association (the “Bank”) as the
case may be, to repurchase the related Trust Student Loans from the
Depositor, as applicable, under the circumstances described in the
applicable Purchase Agreement; (v) the Administration Agreement;
(vi) each Guarantee Agreement, including the right of the Issuer to
cause the related Guarantor to make Guarantee Payments in respect
of the Trust Student Loans; (vii) the Trust Accounts and all funds
on deposit from time to time in the Trust Accounts, including the
Reserve Account Initial Deposit, the Capitalized Interest Account
Initial Deposit, the Add-On Consolidation Loan Account Initial
Deposit and the Collection Account Initial Deposit, if any, and all
investments and proceeds thereof (including all income thereon);
and (viii) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing, all
books and records with respect to the foregoing, and all payments
on or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing including all proceeds of
the conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, general intangibles,
deposit accounts, insurance proceeds, condemnation awards, rights
to payment of any and every kind and other forms of obligations and
receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of
the foregoing.
Pursuant to the Indenture, the Collateral
will be held by the Indenture Trustee on behalf of the holders of
the Notes. Pursuant to an administration agreement, dated as
of November 29, 2005 (the “Administration
Agreement”) among the Depositor, WEF, as master servicer (the
“Master Servicer”), the Trust, the Eligible Lender
Trustee, the Bank as administrator (the
“Administrator”) and as paying agent (the “Paying
Agent”), the Administrator will perform certain
administrative obligations of the Trust under the Indenture and the
Depository Agreement.
The Depositor has prepared and filed with
the Securities and Exchange Commission (the
“Commission”), a registration statement on Form S-3
(File No. 333-125821), 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 under the Securities Act of 1933, as amended (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, the most recent
such amendment has been declared effective by the Commission.
The Depositor will file with the Commission a final base
prospectus and a final prospectus supplement relating to the
Securities in accordance with Rules 415 and 424(b) under the
Securities Act. 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 rules and regulations of the Commission
under the Securities Act (the “Securities Act
Regulations”) to be included in the prospectus with respect
to the offering of the Underwritten Notes. As filed, the
final prospectus and the final prospectus supplement shall include
all required information with respect to the offering of the
Underwritten Notes 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 such registration statement, or
the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared
effective by the Commission. Such registration statement, as
amended as of the Effective Date, including the exhibits thereto
and any material incorporated by reference therein pursuant to the
Securities Act and the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), is referred to as the
“Registration Statement”. “Base
Prospectus” means the base prospectus included in the
Registration Statement, as amended at the time of the filing of the
Prospectus (as defined below). “Preliminary
Prospectus” means any preliminary prospectus supplement to
the Base Prospectus together with the Base Prospectus which
describes the offering of the Underwritten Notes and is used prior
to the filing of the Prospectus. “Prospectus”
means the 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; provided, however, that a supplement to
the Base Prospectus shall be deemed to have supplemented the Base
Prospectus only with respect to the offering of the series of
securities to which it relates. “Prospectus
Supplement” means the supplement to the Base Prospectus
included in the Prospectus.
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 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; provided that no documents incorporated by
reference into the Registration Statement or the Prospectus with
respect to the offering of securities other than the Underwritten
Notes shall be deemed to have supplemented or been incorporated
into the Prospectus. For purposes of this Agreement, all
references to the Registration Statement, the Base Prospectus, 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”).
1.
Representations and
Warranties .
(a)
Representations and Warranties by the
Depositor . The
Depositor represents and warrants to the Underwriters as of the
date hereof and as of the Closing Time (as defined in Section 2(b))
and agrees with the Underwriters as follows:
(i)
Compliance with Registration
Requirements . The
Depositor meets the requirements for use of Form S-3 under the
Securities Act. 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). 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. The Indenture has been
duly qualified under the Trust Indenture Act of 1939, as amended
(the “Trust Indenture Act”).
At the respective times that the
Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time, the Registration
Statement and each such amendment thereto 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 (the “Trust Indenture Act Regulations”)
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. Notwithstanding the
foregoing, the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Depositor in writing by any
Underwriter through the Representative expressly for use in the
Registration Statement or the Prospectus.
Any Preliminary Prospectus and the
Prospectus filed as part of the Registration Statement as
originally filed 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.
(ii)
Incorporated Documents
. The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, at the time they were or hereafter
are filed with the Commission to the extent relating to the
Underwritten Notes, 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 or subsequently filed documents
incorporated or deemed incorporated by reference, at the time the
Registration Statement became effective, at the date of the
Prospectus and at the Closing Time, did not and 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, in the
light of the circumstances under which they were made, not
misleading.
(iii)
No Material Adverse Change
. Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise set forth in the Prospectus, (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.
(iv)
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. §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.
(v)
Authorization of this
Agreement . This
Agreement has been duly authorized, executed and delivered by the
Depositor.
(vi)
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
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).
(vii)
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.
(viii)
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.
(ix)
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.
(x)
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 is 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 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.
(xi)
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; 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.
(xii)
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.
(xiii)
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.
(xiv)
Possession of Licenses and
Permits . The Depositor
possesses 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 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.
(xv)
Title to Receivables; Payment of
Fees . As of the Closing
Time and immediately prior to their transfer to the Trust, the
Depositor will have good and marketable title to, and will be the
sole beneficial owner of each Receivable and the remainder of the
Collateral free and clear of Liens other than the Lien in favor of
the Indenture Trustee under the Indenture and other Liens permitted
by the Basic Documents; 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.
(xvi)
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”).
(xvii)
No Brokers or Finders
. Other than as contemplated by
this Agreement, there is no broker, finder or other party that is
entitled to receive from the Depositor or any of its affiliates or
a purchaser any brokerage or finder’s fee or other fee or
commission as a result of any of the transactions contemplated in
this Agreement.
(xviii)
Actions with respect to
Receivables . On or
before the Closing Time, the Depositor shall mark its accounting
and other records, if any, relating to the Receivables and shall
cause the Bank, WEF and the Master Servicer to mark their records
(including computer records) to show the absolute ownership by the
Eligible Lender Trustee on behalf of the Trust of the Receivables
and none of the Depositor, WEF, the Bank or the Master Servicer
shall take any action inconsistent with the ownership by the
Eligible Lender Trustee on behalf of the Trust of the Receivables,
other than as permitted by the Master Servicing Agreement or the
other Basic Documents.
(xix)
Neither the Depositor nor any of its
Affiliates or any person acting on behalf of the foregoing has
taken or will take, directly or indirectly, any action designed to
cause or to result in, or that has constituted or might reasonably
be expected to cause or result in, the stabilization in violation
of applicable laws or manipulation of the price of any security to
facilitate the sale or resale of the Underwritten Notes.
(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.
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, 99.850% of the
principal amount thereof, (ii) the Class A-2 Notes, 99.800%
of the principal amount thereof, (iii) the Class A-3 Notes,
99.775% of the principal amount thereof, (iv) the Class A-4
Notes 99.750% of the principal amount thereof, (v) the Class
A-5 Notes, 99.660% of the principal amount thereof and (vi)
the Class A-6 Notes, 99.600% 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 McKee Nelson, LLP, One Battery Park Plaza, 34
th Floor, New York, New York 10004, 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 November 29,
2005, 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 “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 New York 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.
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 430A of the
Securities Act Regulations, 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 for additional information and (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. The Depositor will
promptly effect the filings necessary pursuant to Rule 424 of the
Securities Act Regulations and will take such steps as it deems
necessary to ascertain promptly whether the Prospectus transmitted
for filing under Rule 424 of the Securities Act Regulations 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 the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus,
whether pursuant to the Securities Act, the Exchange Act or
otherwise, will furnish the Representative with copies of each such
document within 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 reasonably 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
Registration Statement as originally filed 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) 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
Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The
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, the
Trust Indenture Act 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 the 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 in order that the Registration Statement
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 or to amend or
supplement the Prospectus in order that 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 promptly prepare and file with the
Commission, subject to the review and approval provisions afforded
to the Representative as 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, 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.
(f)
State Securities Law
Qualifications . The
Depositor will use its best efforts, in cooperation with the
Underwriters, to qualify the Underwritten Notes for offering and
sale under the laws of such jurisdictions as the Representative may
designate and to maintain such qualifications in effect for a
period of not less than one year from the date of the Prospectus;
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. In each jurisdiction
in which the Underwritten Notes have been so qualified, the
Depositor will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the date of the
Prospectus.
(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 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 Master Servicer’s
Report and Administrator’s Officers’ Certificate
delivered to the Administrator or the Indenture Trustee pursuant to
Section 3.1 of the Administration Agreement, (ii) the annual
statements of compliance, notices of Master Servicer Default,
notices of Administrator Default, financial statements, annual
independent certified public accountants’ reports and annual
opinions of counsel furnished to the Indenture Trustee pursuant to
the Basic Documents, as soon as such statements, reports and
opinions are furnished to the Indenture Trustee, (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.
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
Underwritten Notes to the Underwriters, (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 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) any fees and expenses of the
Indenture Trustee and the Eligible Lender Trustee, including the
reasonable fees and disbursements of their respective counsel in
connection with the transactions contemplated by this Agreement and
(vii) any fees payable to 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 the Notes.
(b)
Termination of Agreement
. If this Agreement is terminated
by the Underwriters in accordance with the provisions of Section
5(y) or Section 9(a)(i), the Depositor shall reimburse the
Underwriters for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the
Underwriters.
5.
Conditions of the Obligations of the
Underwriters . The
obligations of the Underwriters are subject to the accuracy of the
representations and warranties of the Depositor contained in
Section 1 and in certificates of any officer of the Depositor or
any of its Affiliates delivered pursuant to the provisions hereof,
to the performance by the Depositor of its covenants and other
obligations hereunder and to the following additional conditions:
(a)
Effectiveness of Registration
Statement . The
Registration Statement has become effective under the Securities
Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities
Act and at the Closing Time no proceedings for that purpose shall
have been instituted or be pending or, to the knowledge of the
Depositor, threatened by the Commission, and any request on the
part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel for the
Underwriters. A prospectus containing information relating to
the description of the Securities, the specific method of
distribution and similar matters shall have been filed with the
Commission in accordance with Rule 424(b) of the Securities Act
Regulations (or any required post-effective amendment providing
such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A of the Securities Act
Regulations).
(b)
Accountants’ Comfort
Letter . At the Closing
Time, the Underwriters and the Depositor shall have received from
KPMG LLP a letter or letters dated as of the Closing Date, in form
and substance as previously agreed upon by the Representative and
otherwise reasonably satisfactory in form and substance to the
Underwriters and counsel for the Under
