UNDERWRITING AGREEMENT

 

                                                                     Exhibit 1.1

 

 

 

                                 $1,900,000,000

 

                        WACHOVIA AUTO OWNER TRUST 2005-B

 

               $351,000,000 4.48085% Class A-1 Asset Backed Notes

                 $572,000,000 4.82% Class A-2 Asset Backed Notes

                 $377,000,000 4.79% Class A-3 Asset Backed Notes

                 $348,000,000 4.84% Class A-4 Asset Backed Notes

                 $175,200,000 4.93% Class A-5 Asset Backed Notes

                  $ 76,800,000 5.14% Class B Asset Backed Notes

 

                        POOLED AUTO SECURITIES SHELF LLC

                                    Depositor

 

                             UNDERWRITING AGREEMENT

 

                                                                November 30, 2005

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

$351,000,000 aggregate principal amount of 4.48085% Class A-1 Asset Backed Notes

(the "Class A-1 Notes"), $572,000,000 aggregate principal amount of 4.82% Class

A-2 Asset Backed Notes (the "Class A-2 Notes"), $377,000,000 aggregate principal

amount of 4.79% Class A-3 Asset Backed Notes (the "Class A-3 Notes"),

$348,000,000 aggregate principal amount of 4.84% Class A-4 Asset Backed Notes

(the "Class A-4 Notes") and $175,200,000 aggregate principal amount of 4.93%

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) $76,800,000 aggregate principal

amount of 5.14% Class B Asset Backed Notes (the "Direct Purchase Notes") and,

together with the Underwritten Notes, the "Notes") and (ii) the Wachovia Auto

Owner Trust 2005-B Asset Backed Certificates (the "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

 

 

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purchase agreement, dated November 30, 2005 (the "Purchase Agreement"),

between the Depositor and Pass Holding. The Notes will be issued pursuant to

an indenture, dated as of December 1, 2005 (the "Indenture"), between the

Trust and U.S. Bank National Association, 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 December 1, 2005 (the

"Trust Agreement"), between the Depositor and Wilmington Trust Company, 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 November 30, 2005 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 December 1, 2005 (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 December 1,

2005 (the "Sale and Servicing Agreement"), among the Trust, the Depositor and

the Bank, as seller and as servicer (in such capacities, the "Seller" and the

"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 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

December 1, 2005 (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 December 1, 2005 (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.

333-123387), 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

 

 

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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. "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.

 

      To the extent that the Depositor has prepared (i) Collateral Term Sheets

(as defined in Section 6) that the Underwriters, the Depositor or the Bank have

provided to a prospective investor, the Depositor shall file with the Commission

such Collateral Term Sheets as an exhibit to a report on Form 8-K within two

business days of its receipt thereof or (ii) Structural Term Sheets or

Computational Materials (each as defined in Section 6), the Depositor shall file

with the Commission a report on Form 8-K containing such Structural Term Sheets

or Computational Materials, as soon as reasonably practicable after the date of

this Agreement, but in any event, not later than the date on which the

Prospectus is made available to the Representative in final form.

 

         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

 

 

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<PAGE>

 

 

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,

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 and as of the

Closing Time referred to 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

 

 

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<PAGE>

 

 

      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, 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 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 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.

 

            (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. 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

 

 

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<PAGE>

 

 

      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 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

 

 

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      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, 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.

 

            (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,

 

 

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      "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

      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.

 

            (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) 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, 99.88000% of the principal amount thereof, (ii) the

Class A-2 Notes, 99.80710% of the principal amount thereof, (iii) the Class A-3

Notes, 99.73401% of the principal

 

 

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amount thereof, (iv) the Class A-4 Notes 99.71577% of the principal amount

thereof and (v) the Class A-5 Notes 99.69263% 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 Brown &

Wood 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 December 8, 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 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 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,

 

 

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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 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 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 Computational Materials, any

Structural Term Sheet, any Collateral Term Sheet and 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 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

 

 

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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 payment

date certificate delivered to Securityholders pursuant to Section 4.9 of the

Sale and Servicing Agreement, (ii) the 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.

 

 

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      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 Computational Materials, any Structural Term Sheet, any

Collateral Term Sheet, 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 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

Computational Materials, any Structural Term Sheet, any Collateral Term Sheet,

any Preliminary 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 and

(viii) 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 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.

 

      Section 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 threatened by the Commission, and any

request on the part of the Commission for additional information shall have been

complied with to th