EXHIBIT 1.1
____________________ 200_-_
[$__________ CLASS A-1 _____% ASSET BACKED NOTES
$__________ CLASS A-2 _____% ASSET BACKED NOTES
$__________ CLASS A-3 _____% ASSET BACKED NOTES
$__________ ASSET BACKED CERTIFICATES](1)
[$__________ ASSET BACKED CERTIFICATES, CLASS A
$__________ ASSET BACKED CERTIFICATES, CLASS B]
BAS SECURITIZATION LLC
(Company)
__________________________________________
(Sponsor)
__________________________________________
(Sponsor SPE)
FORM OF UNDERWRITING AGREEMENT
__________ __, 200_
BANC OF AMERICA SECURITIES LLC
As Representative of the
Underwriters Listed in
Schedule I (the "Representative")
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
----------
(1)
This form of Underwriting Agreement contains alternative provisions
that
relate to offerings of Asset Backed Certificates, on the one hand,
and
Asset Backed Notes and Asset Backed Certificates, on the other
hand.
Ladies and Gentlemen:
BAS Securitization LLC, a Delaware limited liability company (the
"Company") and a wholly owned, special purpose, bankruptcy remote
subsidiary of
NB Holdings Corporation, a Delaware corporation, proposes to sell
to the
Underwriters listed in Schedule I hereto (the "Underwriters")
[$__________
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"), $__________ aggregate
principal amount of
Class A-3 _____% Asset Backed Notes (the "Class A-3 Notes" and,
together with
the Class A-1 Notes and the Class A-2 Notes, the "Notes"), set
forth in Section
I hereof] [$__________ aggregate principal amount of ___% Asset
Backed
Certificates, Class A (together with the Tail Certificate described
below, the
"Class A Certificates") and $__________ aggregate principal amount
of ___% Asset
Backed Certificates, Class B (the "Class B Certificates", and
together with the
Class A Certificates, the "Securities" or the "Certificates"), set
forth in
Section I hereof]. The [Securities] [Notes] are issued by the
____________________ 200_-_ (the "Trust"). The Trust also will
issue $__________
aggregate principal amount of certificates (the "Certificates" and,
together
with the Notes, the "Securities"). Each Certificate will represent
a fractional
undivided interest in the Trust. [Each Note will be secured by the
assets of the
Trust pursuant to the Indenture (as hereinafter defined).]
The assets of the Trust (the "Trust Property") include, among other
things,
a pool of retail motor vehicle loans and/or retail installment sale
contracts
secured by new and used automobiles, motorcycles, vans, trucks,
buses and/or
trailers, light duty trucks and other similar vehicles (the
"Receivables") and
certain monies received under the Receivables [on and] after
__________ __, 200_
(the "Cutoff Date"), such Receivables to be serviced for the Trust
by
____________________ in its capacity as servicer (in such capacity,
the
"Servicer").
The Receivables will be sold to __________, a __________ (the
"Sponsor") by
the Servicer pursuant to a Purchase Agreement, dated as of the
Closing Date (the
"Sponsor Purchase Agreement") between the Sponsor and the Servicer,
and to the
Company by the Sponsor pursuant to a Purchase Agreement, dated as
of the Closing
Date (the "Company Purchase Agreement") between the Company and the
Sponsor. The
Receivables will be conveyed by the Company to the Trust pursuant
to a [Pooling
and Servicing Agreement] [Sale and Servicing Agreement] dated as of
the Closing
Date (the ["Pooling and Servicing Agreement"] ["Sale and Servicing
Agreement"])
among the Company, the Servicer[, [Indenture Trustee], as indenture
trustee (the
"Indenture Trustee")] and __________, as [owner] trustee (the
"[Owner]
Trustee")].
[The Notes will be issued pursuant to an Indenture to be dated as
of the
Closing Date (the "Indenture") between the Trust and the Indenture
Trustee. The
Servicer will agree to perform certain administrative tasks
pursuant to an
Administration Agreement to be dated as of the Closing Date (the
"Administration
Agreement") among the Servicer, the Trust and the Indenture
Trustee. The
Certificates will be issued pursuant to [an] [a] [Amended and
Restated] Trust
Agreement to be dated as of the Closing Date (the "Trust
Agreement") between the
Company and the Owner Trustee.] [The Class A Certificates will be
issued in an
aggregate principal amount of $__________, which is equal to
approximately ___%
of the aggregate principal balance of the Receivables as of the
Cutoff Date, and
$__________ aggregate principal amount of the Class A Certificates
(the "Tail
Certificate") will initially be retained by _______. The
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Class B Certificates will be issued in an aggregate principal
amount of
$__________, which is equal to approximately ___% of the aggregate
principal
balance of the Receivables as of the Cutoff Date. Payments in
respect of the
Class B Certificates are, to the extent provided in the Pooling and
Servicing
Agreement, subordinated to the rights of the holders of the Class A
Certificates. The Certificates will be issued pursuant to a Pooling
and
Servicing Agreement.]
The terms which follow, when used in this Agreement, shall have the
meanings indicated. "Effective Date" shall mean the latest of the
dates that the
Registration Statement or the most recent post-effective amendment
thereto
became effective. "Execution Time" shall mean the date and time
that this
Agreement is executed and delivered by the parties hereto. "Rule
424" refers to
such rule under the Securities Act of 1993, as amended, and the
rules and
regulations of the Commission thereunder (collectively, the "Act").
"Basic
Documents" shall mean the Sponsor Purchase Agreement, the Company
Purchase
Agreement, [the Reserve Account Agreement,] the [Pooling and
Servicing
Agreement] [Sale and Servicing Agreement], [the Indenture, the
Trust Agreement,
the Administration Agreement, the Certificate Purchase Agreement
with respect to
the Certificates (the "Certificate Purchase Agreement"),] this
Agreement, the
Securities and [each] [the] Depository Agreement. "Participating
Entity" means
each of the Servicer and the Sponsor. "Securityholder" means any
Noteholder and
any Certificateholder and "Security Owner" means the beneficial
owner of any
Note or Certificate. To the extent not defined herein, capitalized
terms used
herein have the meanings assigned to such terms in [the Pooling and
Servicing
Agreement] [Appendix X to the Sale and Servicing Agreement].
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of
the Act, a
shelf registration statement on Form S-3 (having the registration
number stated
in the applicable Terms Agreement a form of which is attached
hereto as Exhibit
A (the "Terms Agreement")), including a form of prospectus,
relating to the
[Securities] [Notes]. The registration statement as amended 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 the
applicable Terms
Agreement, the most recent such amendment has been declared
effective by the
Commission. Such registration statement, as amended at the time of
effectiveness, including all material incorporated by reference
therein and
including all information (if any) deemed to be part of the
registration
statement at the time of effectiveness pursuant to Rule 430B under
the Act, is
referred to in this Agreement as the "Registration Statement." The
Company
proposes to file with the Commission pursuant to Rule 424(b) under
the Act
("Rule 424(b)") a supplement (the "Prospectus Supplement") to the
prospectus
included in the Registration Statement (such prospectus, in the
form it appears
in the Registration Statement or in the form most recently revised
and filed
with the Commission pursuant to Rule 424(b), is hereinafter
referred to as the
"Basic Prospectus") relating to the [Securities] [Notes] and the
method of
distribution thereof. The Basic Prospectus and the Prospectus
Supplement,
together with any amendment thereof or supplement thereto, is
hereinafter
referred to as the "Prospectus."
Prior to the time the first contract of sale for the [Securities]
[Notes]
designated in the applicable Terms Agreement was entered into (the
"Time of
Sale"), the Company will prepare a preliminary Prospectus, dated
[_______] [_],
20[__] subject to completion). As used herein, "Preliminary
Prospectus" means,
with respect to any date or time referred to herein, the most
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recent preliminary Prospectus (as amended or supplemented, if
applicable), which
has been prepared and delivered by the Company to the Underwriters
in accordance
to the provisions hereof.
1. The Company agrees to sell and deliver to the Underwriters as
hereinafter provided, and each Underwriter, upon the basis of the
representations, warranties and covenants herein contained, but
subject to the
conditions hereinafter stated, agrees to purchase, severally and
not jointly,
from the Company, the respective aggregate principal amounts and
classes of
[Securities] [Notes] set forth opposite such Underwriter's name in
Schedule I
hereto. The purchase price for the [Securities] [Notes] of any
class will be the
applicable percentage set forth on Schedule I hereto of the
aggregate principal
amount of such class purchased [, plus, in each case, accrued
interest, if any,
on the principal amount thereof at the applicable [Interest Rate
or] Certificate
Rate (as such terms are defined in the Prospectus), as the case may
be, from
(but excluding) __________, 200_, to (and including) the Closing
Date.]
2. The Company understands that the Underwriters intend (i) to make
a
public offering of the [Securities] [Notes] purchased by the
Underwriters
hereunder as soon after the Registration Statement and this
Agreement have
become effective as in the judgment of the Company and the
Representative is
advisable and (ii) initially to offer the [Securities] [Notes]
purchased by the
Underwriters hereunder upon the terms set forth in the Preliminary
Prospectus.
3. Payment for the [Securities] [Notes] purchased by the
Underwriters
hereunder shall be made to the Company or to its order by wire
transfer of same
day funds at the office of [___________], New York, New York, time
on __________
__, 200_, or at such other time on the same or such other date, not
later than
the fifth Business Day thereafter, as the Representative and the
Company may
agree upon in writing (the "Closing Date"). As used herein, the
term "Business
Day" means any day other than a day on which banks generally are
permitted or
required to be closed in New York, New York, or __________,
__________.
Payment for the [Securities] [Notes] purchased by the Underwriters
hereunder shall be made against delivery to the Representative for
the
respective accounts of the Underwriters on the Closing Date of such
[Securities]
[Notes] in definitive form registered in the name of Cede & Co.
as nominee of
The Depository Trust Company and in such denominations, as
permitted by the
Basic Documents, as the Representative shall request in writing not
later than a
reasonable time prior to the Closing Date, with any transfer taxes
payable in
connection with the transfer to the Underwriters of the
[Securities] [Notes]
duly paid by the Company. [The Company shall make such definitive
certificates
representing the [Securities] [Notes] available for inspection by
the
Representative at the office of ____________________ not later than
[1:00 P.M.],
[City, State] time, on the Business Day prior to the Closing Date.]
4. The Company represents, warrants and covenants to each
Underwriter that:
(a) The Registration Statement, including amendments thereto as may
have been required on or prior to the date hereof, relating to the
[Securities] [Notes], has been filed with the Commission and such
Registration Statement as amended has become effective. The
conditions to
the use by the Company of a Registration Statement on Form S-3
under the
Act, as set forth in the General Instructions to Form S-3, have
been
4
satisfied with respect to the Registration Statement, the
Prospectus and
the Preliminary Prospectus.
(b) On the effective date of the Registration Statement, the
Registration Statement conformed in all material respects with the
applicable requirements of the Act, and did not include any untrue
statement of a material fact or omit to state any material fact
required to
be stated therein or necessary to make the statements therein not
misleading and, on the Closing Date, the Registration Statement,
the
Prospectus and the Preliminary Prospectus will conform in all
material
respects with the applicable requirements of the Act, and none of
such
documents will include any untrue statement of a material fact or
omit to
state any material fact required to be stated therein or necessary
to make
the statements therein not misleading; provided, with respect to
the
Preliminary Prospectus, the omission of pricing and price-dependent
information shall, of necessity, appear only in the final
Prospectus;
provided, further, that the foregoing does not apply to information
contained in or omitted from any of the documents based upon
written
information furnished to the Company or the Participating Entities
by the
Underwriters through the Representatives specifically for use in
connection
with the preparation of the Registration Statement, the Prospectus
or the
Preliminary Prospectus.
(c) The Preliminary Prospectus at the Time of Sale did not, and at
the
Closing Date will not, include any untrue statement of a material
fact or
omit to state any material fact required to be stated therein or
necessary
to make the statements therein, in light of the circumstances under
which
they were made, not misleading (it being understood that no
representation
or warranty is made with respect to the omission of pricing and
price-dependent information, which information shall of necessity
appear
only in the final Prospectus); provided, however, that this
representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company or the Participating Entities
in
writing by such Underwriter through the Representatives expressly
for use
in the Preliminary Prospectus.
(d) Other than the Preliminary Prospectus and the Prospectus, the
Company (including its agents and representatives other than the
Underwriters in their capacity as such) has not made, used,
prepared,
authorized, approved or referred to and will not prepare, make,
use,
authorize, approve or refer to any "written communication" (as
defined in
Rule 405 under the Act) that constitutes an offer to sell or
solicitation
of an offer to buy the [Securities] [Notes].
(e) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has
been
instituted or, to the knowledge of the Company, threatened by the
Commission, and (i) on the Effective Date of the Registration
Statement,
the Registration Statement conformed in all material respects to
the
requirements of the Act, and did not include any untrue statement
of a
material fact or omit to state any material fact required to be
stated
therein, or necessary to make the statements therein not misleading
and
(ii) at the time of filing of the Preliminary Prospectus and the
Prospectus
pursuant to Rule 424(b) and on the Closing Date the Registration
Statement
will conform in all material respects to the requirements
5
of the Act, and such document will not include any untrue statement
of a
material fact or omit to state any material fact required to be
stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to
any statements or omissions contained in the Preliminary Prospectus
and the
Prospectus other than the Depositor Information (as defined
herein).
(f) The Company is a limited liability company that is duly
organized,
validly existing and in good standing under the laws of Delaware,
with
power and authority to own its properties and conduct its business
as now
conducted by it and had at all relevant times, and has, full power,
authority and legal right to acquire, own and sell the Receivables
and the
other Trust Property. The Company has the power, authority and
legal right
to execute, deliver and perform this Agreement and each of the
other Basic
Documents to which it is a party and to carry out their respective
terms
and to sell and assign the respective property to be sold and
assigned to
and deposited with the [Trust] [Owner Trustee] as Trust Property.
(g) The execution, delivery and performance by the Company of each
of
the Basic Documents to which it is a party and the consummation of
the
transactions contemplated hereby and thereby have been duly
authorized by
the Company by all necessary limited liability company action. The
Basic
Documents to which the Company is a party have been duly executed
and
delivered by the Company and, when executed and delivered by the
Company
and the other parties thereto, each of such Basic Documents will
constitute
a legal, valid and binding obligation of the Company, enforceable
against
the Company in accordance with its respective terms, subject, to
enforceability, to applicable bankruptcy, insolvency,
reorganization,
moratorium, conservatorship, receivership, liquidation and other
similar
laws affecting enforcement of the rights of creditors generally and
to
equitable limitations on the availability of specific remedies.
(h) No consent, approval, authorization, license or other order or
action of, or filing or registration with, any court or
governmental
authority, bureau or agency is required in connection with the
execution,
delivery or performance by the Company of any of the Basic
Documents to
which it is a party or the consummation of the transactions
contemplated
hereby or thereby except such as have been obtained and made under
the Act
or state securities laws and any filings of UCC financing
statements.
(i) The Company is not in violation of its organizational documents
or
in default in the performance or observance of any obligation,
agreement,
covenant or condition contained in any agreement or instrument to
which it
is a party or by which it is bound which violation or default would
have a
material adverse effect on the transactions contemplated herein or
in the
Basic Documents. The execution, delivery and performance by the
Company of
the Basic Documents to which it is a party, the consummation of the
transactions contemplated hereby and thereby and the compliance
with the
terms and provisions hereof and thereof will not conflict with or
result in
a breach or violation of any of the terms and provisions of,
constitute
(with or without notice or lapse of time or both) a default under
or result
in the creation or imposition of any Lien (other than as
contemplated by
the Basic Documents) upon any of its properties
6
pursuant to the terms of, (A) the organizational documents of the
Company,
(B) any indenture, contract, lease, mortgage, deed of trust or
other
instrument or agreement to which the Company is a party or by which
the
Company is bound, which violation or default would have an adverse
effect
on the transactions contemplated herein or in the Basic Documents
or (C)
any law, order, rule or regulation applicable to the Company of any
regulatory body, any court, administrative agency or other
governmental
instrumentality having jurisdiction over the Company.
(j) There are no proceedings or investigations pending, or to the
knowledge of the Company threatened, to which the Company is a
party before
any court, regulatory body, administrative agency or other tribunal
or
governmental instrumentality (i) that are required to be disclosed
in the
Registration Statement and which are not so disclosed, (ii)
asserting the
invalidity of this Agreement or any of the Basic Documents, (iii)
seeking
to prevent the issuance of the [Securities] [Notes] or the
consummation of
any of the transactions contemplated by this Agreement or any of
the Basic
Documents, (iv) seeking any determination or ruling that might
adversely
affect the performance by the Company of its obligations under, or
the
validity or enforceability of, this Agreement or any of the Basic
Documents, (v) that may adversely affect the federal or state
income,
excise, franchise or similar tax attributes of any of the
[Securities]
[Notes], or (vi) which, if determined adversely, could individually
or in
the aggregate reasonably be expected to adversely affect the
interests of
the holders of any of the [Securities] [Notes] or the marketability
of any
of the [Securities] [Notes].
(k) There are no contracts or other documents to which the Company
is
a party of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the
Registration
Statement pursuant to the Act which are not filed or described as
required.
(l) The representations and warranties of the Company contained in
the
Basic Documents to which it is a party are true and correct as of
the dates
of the respective Basic Documents.
(m) By assignment and delivery of each of the Receivables to the
Trust
as of the Closing Date, the Company will transfer title in the
Receivables
to the Trust, subject to no Lien created by the Company prior or
equal to
the ownership or security interest granted to the Trust.
(n) The Company is not, and on the date on which the first bona
fide
offer of the [Securities] [Notes] is made, the Company will not be
an
"ineligible issuer," as defined in Rule 405 under the Act.
5. Each Participating Entity represents and warrants (jointly and
severally) to and agrees with each Underwriter that:
(a) As of the Closing Date, the Registration Statement, the
Preliminary Prospectus and the Prospectus, except with respect to
any
modification to which the Representatives have agreed in writing,
shall be
in all substantive respects in the form
7
furnished to the Representatives before such date or, to the extent
not
completed on such date, shall contain only such specific additional
information and other changes (beyond that contained in the latest
Preliminary Prospectus that has previously been furnished to the
Representatives) as the Participating Entity has advised the
Representatives, before such time, will be included or made
therein.
(b) On the date of this Agreement, the Preliminary Prospectus and
the
Prospectus conforms in all material respects to the requirements of
the
Act, and does not include any untrue statement of a material fact
or omit
to state any material fact required to be stated therein, or
necessary to
make the statements therein, in light of the circumstances under
which they
were made, not misleading (it being understood that no
representation or
warranty is made with respect to the omission of pricing and
price-dependant information, which information shall of necessity
appear
only in the final Prospectus) and (ii) at the time of filing of the
Preliminary Prospectus and the Prospectus pursuant to Rule 424(b)
and on
the Closing Date the Preliminary Prospectus and the Prospectus will
conform
in all material respects to the requirements of the Act, and the
Preliminary Prospectus and the Prospectus delivered to the
Underwriters for
use in connection with the offering of [Securities] [Notes] will,
at the
time of such delivery, be identical to any electronically
transmitted
copies thereof filed with the Commission pursuant to its Electronic
Data
Gathering Analysis and Retrieval System ("EDGAR"), except to the
extent
permitted by Regulation S-T; and such documents will not include
any untrue
statement of a material fact or omit to state any material fact
required to
be stated therein or necessary to make the statements therein, in
light of
the circumstances under which they were made, not misleading;
provided,
however that no representation or warranty is made with respect to
the
omission of pricing and price-dependant information in the
Preliminary
Prospectus, such information shall of necessity appear only in the
final
Prospectus; provided, further, that this representation and
warranty shall
not apply to any statements or omissions (x) made in reliance upon
and in
conformity with information furnished to the Participating Entities
in
writing by any Underwriter through the Representative expressly for
use in
the Preliminary Prospectus and the Prospectus (collectively,
"Underwriter
Information") or (y) under the caption "The Depositor" in the Base
Prospectus (the "Depositor Information"). Each Participating Entity
hereby
agrees with the Underwriters that, for all purposes of this
Agreement, the
only Underwriter Information furnished consists of [the statements
in the
first sentence of the [______] paragraph under the caption
"Underwriting"
in the Prospectus Supplement regarding the Underwriters' intention
to make
a market in the [Securities] [Notes]].
(c) The Preliminary Prospectus at the Time of Sale did not, and at
the
Closing Date will not, include any untrue statement of a material
fact or
omit to state any material fact necessary to make the statements
therein,
in light of the circumstances under which they were made, not
misleading
(it being understood that no representation or warranty is made
with
respect to the omission of pricing and price-dependent information,
which
information shall of necessity appear only in the final
Prospectus);
provided, however, that the Participating Entity makes no
representation or
warranty with respect to any statements or omissions made in
reliance upon
and in conformity with information relating to any Underwriter
furnished to
the Participating Entity in writing by such Underwriter through the
Representatives expressly for use in the Preliminary Prospectus.
8
(d) Other than the Preliminary Prospectus and the Prospectus, the
Participating Entity (including its agents and representatives
other than
the Underwriters in their capacity as such) has not made, used,
prepared,
authorized, approved or referred to and will not prepare, make,
use,
authorize, approve or refer to any "written communication" (as
defined in
Rule 405 under the Act) that constitutes an offer to sell or
solicitation
of an offer to buy the [Securities] [Notes].
(e) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Prospectus and the
Preliminary
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 Preliminary Prospectus
and the
Prospectus, at the time the Registration Statement became
effective, at the
date of each of the Preliminary Prospectus, the Prospectus and at
the
Closing Date, 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; provided, however, no representation or
warranty
is made as to documents deemed to be incorporated by reference in
the
Registration Statement as the result of filing any Current Report
on Form
8-K at the request of the Underwriters.
(f) The computer tapes with respect to the Receivables to be sold
to
the Trust created as of the Cutoff Date (the "Computer Tapes"), and
made
available to the Representative by the Sponsor [and __________,
respectively,] were complete and accurate as of the date thereof.
(g) Such Participating Entity is either a ___________ or
_____________
that is duly organized, validly existing and in good standing under
the
laws of its jurisdiction of organization, with power and authority
to own
its properties and conduct its business as now conducted by it and
had at
all relevant times, and has, full power, authority and legal right
to
acquire, own and sell the Receivables and the other Trust Property.
Such
Participating Entity has the power, authority and legal right to
execute,
deliver and perform this Agreement and each of the other Basic
Documents to
which it is a party and to carry out their respective terms and to
sell and
assign the respective property to be sold and assigned to and
deposited
with the [Trust] [Owner Trustee] as Trust Property.
(h) The Securities have been duly authorized, and, when issued and
delivered pursuant to the Basic Documents and duly executed and
authenticated by the [Owner] Trustee [and the Indenture Trustee, as
applicable,] will be duly and validly issued, authenticated and
delivered
and entitled to the benefits provided by the Basic Documents. The
execution, delivery and performance by such Participating Entity of
each of
the Basic Documents to which it is a party and the consummation of
the
transactions contemplated hereby and thereby have been duly
authorized by
such Participating Entity by all necessary action. The Basic
Documents to
which such Participating Entity is a party have been duly executed
and
delivered by such Participating Entity and, when executed and
delivered by
such Participating Entity and the other parties thereto, each of
such Basic
Documents will constitute a legal, valid and binding obligation of
such
9
Participating Entity, enforceable against such Participating Entity
in
accordance with its respective terms, subject, to enforceability,
to
applicable bankruptcy, insolvency, reorganization, moratorium,
conservatorship, receivership, liquidation and other similar laws
affecting
enforcement of the rights of creditors generally and to equitable
limitations on the availability of specific remedies. The
[Securities]
[Notes] and the Basic Documents conform to the descriptions thereof
in the
Preliminary Prospectus and the Prospectus in all material respects.
[The
Notes and the Indenture have been duly executed and delivered by
the Trust
and, when the Indenture is executed and the Notes are authenticated
by the
Indenture Trustee, the Indenture and the Notes will constitute
legal, valid
and binding obligations of the Trust, enforceable in accordance
with their
respective terms, subject, as to enforceability, to applicable
bankruptcy,
insolvency, reorganization, moratorium, conservatorship,
receivership,
liquidation and other similar laws affecting enforcement of the
rights of
creditors generally and to equitable limitations on the
availability of
specific remedies.]
(i) No consent, approval, authorization, license or other order or
action of, or filing or registration with, any court or
governmental
authority, bureau or agency is required in connection with the
execution,
delivery or performance by such Participating Entity of any of the
Basic
Documents to which it is a party or the consummation of the
transactions
contemplated hereby or thereby except such as have been obtained
and made
under the Act or state securities laws and any filings of UCC
financing
statements.
(j) Such Participating Entity 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 them; the Participating Entity is in compliance with
the terms
and conditions of all such Governmental Licenses; all of the
Governmental
Licenses are valid and in full force and effect; and the
Participating
Entity 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 an adverse effect, would have an adverse
effect on
its ability to perform its obligations under each Basic Document to
which
it is a party or would render any of the Receivables unenforceable.
(k) Such Participating Entity is not in violation of its
organizational documents or bylaws or in default in the performance
or
observance of any obligation, agreement, covenant or condition
contained in
any agreement or instrument to which it is a party or by which it
is bound
which violation or default would have a material adverse effect on
the
transactions contemplated herein or in the Basic Documents. The
execution,
delivery and performance by such Participating Entity of the Basic
Documents to which it is a party, the consummation of the
transactions
contemplated hereby and thereby and the compliance with the terms
and
provisions hereof and thereof will not conflict with or result in a
breach
or violation of any of the terms and provisions of, constitute
(with or
without notice or lapse of time or both) a default under or result
in the
creation or imposition of any Lien (other than as contemplated by
the Basic
Documents) upon any of its properties pursuant to the terms of, (A)
the
organizational documents or bylaws of such Participating Entity,
(B) any
indenture, contract, lease, mortgage, deed of trust or
10
other instrument or agreement to which such Participating Entity is
a party
or by which such Participating Entity is bound, which violation or
default
would have an adverse effect on the transactions contemplated
herein or in
the Basic Documents or (C) any law, order, rule or regulation
applicable to
such Participating Entity of any regulatory body, any court,
administrative
agency or other governmental instrumentality having jurisdiction
over such
Participating Entity.
(l) There are no proceedings or investigations pending, or to the
knowledge of such Participating Entity threatened, to which such
Participating Entity is a party before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality (i)
that are required to be disclosed in the Preliminary Prospectus and
the
Prospectus and are not so disclosed, (ii) asserting the invalidity
of this
Agreement or any of the Basic Documents, (iii) seeking to prevent
the
issuance of the Securities or the consummation of any of the
transactions
contemplated by this Agreement or any of the Basic Documents, (iv)
seeking
any determination or ruling that might adversely affect the
performance by
such Participating Entity of its obligations under, or the validity
or
enforceability of, this Agreement or any of the Basic Documents,
(v) that
may adversely affect the federal or state income, excise, franchise
or
similar tax attributes of any of the [Securities] [Notes], or (vi)
which,
if determined adversely, could individually or in the aggregate
reasonably
be expected to adversely affect the interests of the holders of any
of the
[Securities] [Notes] or the marketability of any of the
[Securities]
[Notes].
(m) There are no contracts or other documents of a character
required
to be described in the Preliminary Prospectus and the Prospectus
pursuant
to the Act which are not filed or described as required.
(n) Since the respective dates as of which information is given in
the
Registration Statement, the Prospectus and the Preliminary
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
Participating
Entities, whether or not arising in the ordinary course of
business, (B)
there have been no transactions entered into by the Participating
Entities,
other than those in the ordinary course of business, which are
material
with respect to such entity and (C) there has been no material
adverse
change in the financial statements of the Participating Entities.
(o) The representations and warranties of such Participating Entity
contained in the Basic Documents to which it is a party are true
and
correct as of the dates of the respective Basic Documents.
(p) By assignment and delivery of each of the Receivables to the
Sponsor SPE by the Sponsor a
