OH&S DRAFT
01/08/97
Exhibit 1.1
BOMBARDIER RECEIVABLES MASTER TRUST I
SERIES 1997-1, ASSET BACKED CERTIFICATES
BOMBARDIER CREDIT RECEIVABLES CORPORATION
(Depositor)
BOMBARDIER CAPITAL INC.
(Servicer)
UNDERWRITING AGREEMENT
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January ___, 1997
X.X. Xxxxxx Securities Inc.
As Representative of the
Several Underwriters Listed
in Schedule I
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Bombardier Credit Receivables Corporation, a Delaware corporation ("BCRC"),
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proposes to sell to the several Underwriters listed in Schedule I hereto (the
"Underwriters") for whom you are acting as the representative (the
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"Representative") $400,000,000 principal amount of its Floating Rate Class A
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Asset Backed Certificates, Series 1997-1 (the "Class A Certificates") and
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$27,125,000 principal amount of its Floating Rate Class B Asset Backed
Certificates, Series 1997-1 (the "Class B Certificates," and together with the
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Class A Certificates, the "Certificates") of the Bombardier Receivables Master
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Trust I (the "Trust"). Each Certificate will represent a fractional undivided
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interest in the Trust. The assets of the Trust currently include amounts due on
a pool of revolving financing arragements with certain dealers located in the
United States to finance such dealers' consumer, recreational and commercial
products inventory and may in the future, include, among other things, certain
amounts due on a pool of revolving financing arrangements with certain dealers,
manufacturers or distributors located in the United States to finance the
working capital needs of such parties or the production or manufacture of or the
carrying in inventory of consumer, recreational and commercial product inventory
(collectively, the "Receivables"). The Receivables have been sold by Bombardier
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Capital Inc., a Massachusetts corporation ("BCI"), to BCRC pursuant to a
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Receivables Purchase Agreement dated as of January 1, 1994 (as supplemented and
amended from time to time, including as amended
by Amendment Number 1 to the Receivables Purchase Agreement, the "Receivables
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Purchase Agreement"), between BCI and BCRC, and subsequently transferred to the
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Trust by BCRC pursuant to a Pooling and Servicing Agreement dated as of January
1, 1994 (as supplemented and amended from time to time, including as amended by
Amendment Number 1 to the Pooling and Servicing Agreement, the "Pooling and
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Servicing Agreement"), among BCRC, BCI, as the Servicer, and Bankers Trust
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Company, as Trustee (the "Trustee"). Payments in respect of the Class B
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Certificates are, to the extent specified in the Supplement (as defined below),
subordinated to the rights of the holders of the Class A Certificates. The
Certificates will be issued pursuant to the provisions of the Pooling and
Servicing Agreement and the Series 1997-1 Supplement to Pooling and Servicing
Agreement to be dated as of January 1, 1997 (the "Supplement"), between BCRC,
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BCI, as the Servicer, and Bankers Trust Company, as Trustee. Concurrently with
the execution and delivery of the Supplement, BCI, BCRC and the Trustee will
enter into the Amendment Number 1 to the Pooling and Servicing Agreement and
Amendment Number 1 to the Receivables Purchase Agreement referred to above.
BCRC has prepared and filed with the Securities and Exchange Commission
(the "Commission") in accordance with the provisions of the Securities Act of
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1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"), a registration statement on Form S-1,
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including a form of prospectus, relating to the Certificates. The registration
statement as amended at the time when it shall become effective, or if a post-
effective amendment is filed with respect thereto, as amended by such post-
effective amendment at the time of its effectiveness, including in each case
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430A under the Securities Act, is referred to
in this Underwriting Agreement (the "Agreement") as the "Registration
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Statement", and the prospectus in the form in which it was most recently filed
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with the Commission pursuant to Rule 424(b) of the rules and regulations of the
Commission is referred to in this Agreement as the "Prospectus."
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When used in this Agreement, "Basic Documents" shall mean the Pooling and
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Servicing Agreement, the Certificates, the Supplement and the Receivables
Purchase Agreement. To the extent not defined herein, capitalized terms used
herein have the meanings assigned to such terms in the Pooling and Servicing
Agreement.
Each of BCRC and BCI hereby agrees with the Underwriters as follows:
1. Purchase and Sale. BCRC agrees to sell the Certificates to the several
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Underwriters as hereinafter provided, and each Underwriter, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not
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jointly, from BCRC the respective principal amount of the Certificates set forth
opposite such Underwriter's name in Schedule I hereto at a price equal to
______% of their principal amount.
2. Offering. BCRC understands that the Underwriters intend (i) to make a
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public offering of their respective portions of the Certificates in accordance
with the Securities Act as soon after (A) the Registration Statement has become
effective and (B) the parties hereto have executed and delivered this Agreement
as in the judgment of the Representative is advisable and (ii) initially to
offer the Certificates upon the terms set forth in the Prospectus.
3. Delivery and Payment. Payment for the Certificates shall be made by
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wire transfer in immediately available funds to the account specified by BCRC to
the Representative no later than noon the Business Day (as defined below) prior
to the Closing Date (as defined below), at 10:00 A.M., New York City time on
January ___, 1997, or at such other time on the same or such other date, not
later than the fifth Business Day thereafter, as the Representative and BCRC may
agree upon in writing. The time and date of such payment are referred to herein
as the "Closing Date." As used herein, the term "Business Day" means any day
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other than a day on which banks are permitted or required to be closed in New
York City.
Payment for the Certificates shall be made against delivery to the nominee
of the Depository Trust Company for the account of the Representative for the
respective accounts of the several Underwriters of one or more global notes (the
"Global Note") representing the Certificates, with any transfer taxes payable in
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connection with the transfer to the Underwriters of the Certificates duly paid
by BCRC. The Global Note will be made available for inspection by the
Representative at the office of Xxxxxx, Xxxxx & Xxxxxxx LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 not later than 1:00 P.M., New York City time, on the
Business Day prior to the Closing Date.
4. Representations and Warranties. Each of BCRC and BCI represents and
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warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with
the Securities Act, and when so filed did 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, in the light of the
circumstances under which they were made, not misleading; provided that
this representation and warranty shall not apply to any statements or
omissions made in
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reliance upon and in conformity with information relating to any
Underwriter furnished to BCRC in writing by such Underwriter through the
Representative expressly for use therein;
(b) the Registration Statement has been declared effective by the
Commission under the Securities Act on January __, 1997 (the "Effective
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Date"); no stop order suspending the effectiveness of the Registration
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Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of BCRC or BCI, threatened by the
Commission; and, on the Effective Date and on the date hereof, the
Registration Statement and Prospectus comply, or, if BCI shall have
furnished any amendments or supplements there to, as amended or
supplemented will comply, as the case may be, in all material respects with
the Securities Act, and do not and as amended or supplemented will not, as
of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain 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 the Prospectus, as amended
or supplemented, if applicable, at the Closing Date will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; except that the foregoing
representations and warranties shall not apply to statements or omissions
in the Registration Statement or the Prospectus made in reliance upon and
in conformity with information relating to any Underwriter furnished to
BCRC in writing by such Underwriter through the Representative expressly
for use therein;
(c) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change in or affecting the general affairs, business, management,
financial position, stockholders' equity or results of operations of BCRC
or BCI, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus;
(d) each of BCRC and BCI has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state of
its incorporation, with full power and authority (corporate and other) and
legal right to own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the failure
to be so qualified or in good standing would not
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have a material adverse effect on it and its subsidiaries, taken as a
whole, or the transactions contemplated herein or in the Basic Documents;
(e) as of the Closing Date the Certificates will be duly and validly
authorized and, when the Certificates are duly and validly executed and
authenticated by the Trustee and delivered in accordance with the Pooling
and Servicing Agreement and delivered and paid for pursuant to this
Agreement, the Certificates will be duly and validly executed,
authenticated, issued and delivered and entitled to the benefits and
security afforded by the Pooling and Servicing Agreement and the
Supplement; each of the Basic Documents has been duly authorized by each of
BCRC and BCI and, when executed and delivered by each of BCRC and BCI, each
of the Basic Documents will constitute a legal, valid and binding
obligation of each of BCRC and BCI, enforceable against each of BCRC and
BCI in accordance with its terms, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement
of creditors rights generally and to general equitable principles; and the
Certificates and the Basic Documents each will conform to the descriptions
thereof in the Prospectus;
(f) this Agreement has been duly authorized, executed and delivered by
each of BCRC and BCI;
(g) neither BCRC nor BCI is, nor with the giving of notice or lapse of
time or both would be, in violation of or in default under, its Certificate
of Incorporation or By-Laws or any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it or any of its properties is bound, except for violations and
defaults which individually and in the aggregate would not have a material
adverse effect on the transactions contemplated herein or in the Basic
Documents; the issue and sale of the Certificates and the performance by
each of BCRC and BCI, as applicable, of all of the provisions of its
obligations under the Certificates, the Basic Documents and this Agreement,
and the consummation of the transactions herein and therein contemplated
will not conflict in any material respect with or result in a material
breach of any of the terms or provisions of, or constitute a material
default under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which BCRC or BCI is a party
or by which BCRC or BCI is bound or to which any of the material property
or assets of BCRC or BCI is subject, nor will any such action result in any
material violation of the provisions of the Certificate of Incorporation or
the By-Laws of BCRC or BCI or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over BCRC or BCI, or any
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of their properties; and no consent, approval, authorization, order,
license, registration, filing or qualification of or with any such court or
governmental agency or body is required to be obtained or made by BCRC or
BCI for the issue and sale of the Certificates or the consummation by BCRC
or BCI of the transactions contemplated by this Agreement or the Basic
Documents, except (i) such consents, approvals, authorizations, orders,
licenses, registrations, filings or qualifications (x) as have been or will
have been obtained prior to the Closing Date under the Securities Act, and
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Certificates by the Underwriters
or (y) will not materially adversely affect the ability of BCI or BCRC to
perform its obligations under any Basic Document or under this Agreement
and (ii) the filing of any financial statements required to perfect the
Trust's interest in the Receivables;
(h) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of BCRC or BCI, threatened against or
affecting BCRC or BCI or any of their properties or, to which BCRC or BCI
is or may be a party or to which BCRC or BCI or any property of BCRC or BCI
is or may be the subject, (i) asserting the invalidity of this Agreement or
of any of the Basic Documents, (ii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions contemplated by
this Agreement or any of the Basic Documents, (iii) that may adversely
affect the federal or state income, excise, franchise or similar tax
attributes of the Certificates, (iv) that could materially and adversely
affect BCRC's or BCI's performance of its obligations under, or the
validity or enforceability of, this Agreement or any of the Basic Documents
or (v) which could individually or in the aggregate reasonably be expected
to have a material adverse effect on the interests of the holders of the
Certificates or the marketability of the Certificates;
(i) the computer tapes with respect to the Receivables sold to the
Trust created as of the Cut-Off Date, each Additional Cut-Off Date, each
Removal Date and each Removal Termination Date, as applicable were complete
and accurate as of the respective dates thereof; immediately prior to
transferring the Receivables to the Trust, BCRC had good and marketable
title to the Receivables free and clear of all liens, encumbrances and
defects, except such as are described or referred to in the Prospectus and
to the extent permitted in the Pooling and Servicing Agreement, and by
assignment and delivery of each of the Receivables to the Trust, BCRC
transferred title in the Receivables to the Trust, subject to no prior
lien, mortgage, security interest, pledge, adverse claim, change or
encumbrance,
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except such as are described or referred to in the Prospectus and to the
extent permitted in the Pooling and Serving Agreement;
(j) the representations and warranties of each of BCRC and BCI
contained in the Basic Documents are true and correct in all material
respects as of the dates specified in the Basic Documents;
(k) Ernst & Xxxxx are independent public accountants with respect to
BCRC and BCI within the meanings of the Securities Act;
(l) each of BCRC and BCI owns, possesses or has obtained all material
licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and has made all material declarations and filings
with, all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory organizations
and all courts and other tribunals, domestic or foreign, necessary to own
or service, as applicable, the Receivables and to perform its obligations
under this Agreement and the Basic Documents except to the extent that the
failure to have such licenses, certificates, permits, consent, orders,
approvals and other authorizations does not have a material adverse effect
on the ability of BCI or BCRC to comply with its obligations under this
Agreement and the Basic Documents, and neither BCRC nor BCI has received
any actual notice of any proceeding relating to revocation or modification
of any such license, permit, certificate, consent, order, approval or other
authorization; and each of BCRC and BCI is in compliance with all laws and
regulations necessary for the performance of its obligations under this
Agreement and the Basic Documents; and
(m) any taxes, fees and other governmental charges in connection with
the execution, delivery and performance of this Agreement and the Basic
Documents and the Certificates shall have been paid or will be paid by or
on behalf of BCRC and BCI, as applicable, at or prior to the Closing Date
to the extent then due.
5. Covenants and Agreements. Each of BCRC and BCI jointly and
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severally covenants and agrees with each of the Underwriters as follows:
(a) if required, to file the final Prospectus with the Commission
within the time periods specified by Rule 424(b) and Rule 430A under the
Securities Act, and to furnish copies of the Prospectus to the Underwriters
in New York City prior to 10:00 A.M., New York City time, on the Business
Day next succeeding the date of this Agreement in such quantities as the
Representative may reasonably request;
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(b) to deliver, at the expense of BCRC, to the Representative, two
conformed copies of the Registration Statement (as originally filed) and
each amendment thereto, in each case including exhibits, and, during the
period mentioned in paragraph (e) below, as many copies of the Prospectus
(including all amendments and supplements thereto) as the Representative
may reasonably request;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the
Registration Statement becomes effective, to furnish to the Representative
a copy of the proposed amendment or supplement for review and not to file
any such proposed amendment or supplement to which the Representative
reasonably objects;
(d) to advise the Representative promptly, and to confirm such advice
in writing, (i) when any amendment to the Registration Statement has been
filed or becomes effective, (ii) when any supplement to the Prospectus or
any amendment to the Prospectus has been filed and to furnish the
Representative with copies thereof, (iii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (iv) of 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 the Prospectus or the initiation or
threatening of any proceeding for that purpose, (v) of the occurrence of
any event, within the period referenced in paragraph (e) below, as a result
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, and (vi) of the receipt by BCRC or BCI of any notification with
respect to any suspension of the qualification of the Certificates for
offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its reasonable best efforts to
prevent the issuance of any such stop order, or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus, or of
any order suspending any such qualification of the Certificates, or
notification of any such order thereof and, if issued, to obtain as soon as
possible the withdrawal thereof;
(e) If before a period of six months shall have elapsed after the
Effective Date and the delivery of a prospectus shall be at the time
required by law in connection with sales of any such certificates, either
(i) any event shall have occurred as a result of which the Prospectus would
include any untrue statement of a material
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fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (ii) for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus as amended or
supplemented, to notify you and to prepare and furnish to you an amendment
or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance; and in case any Underwriter is required
by law to deliver a prospectus in connection with sales of any of such
Certificates at any time six months or more after the Closing Date, upon
such Underwriter's request, but at the expense of such Underwriter, to
prepare and deliver to such Underwriter as many copies as such Underwriter
may request of an amended or supplemented prospectus complying with (S)
10(a)(3) of the Act.
(f) to endeavor to qualify the Certificates for offer and sale under
the securities or Blue Sky laws of such jurisdictions in the United States
as the Representative shall reasonably request and to continue such
qualification in effect so long as reasonably required under such laws for
distribution of the Certificates; and to pay all fees and expenses
(including reasonable fees and disbursements of counsel to the Underwriter)
reasonably incurred in connection with such qualification and in connection
with the determination of the eligibility of the Certificates for
investment under the laws of such jurisdictions in the United States as the
Underwriter may designate; provided, however, that neither BCRC nor BCI
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shall be obligated to qualify to do business in any jurisdiction in which
it is not currently so qualified; and provided further that neither BCRC
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nor BCI shall be required to file a general consent to service of process
in any jurisdiction;
(g) to make generally available to the holders of the Certificates and
to the Representative as soon as practicable an earnings statement (which
need not be audited) covering a period of at least twelve months beginning
with the first fiscal quarter of the Trust occurring after the effective
date of the Registration Statement, which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder;
(h) so long as the Certificates are outstanding, or until such time as
the Underwriters shall cease to maintain a secondary market in the
Certificates, whichever occurs first, to furnish to the Representative (i)
copies of each certificate, the annual statements of compliance and the
annual independent certified public accountant's servicing reports
furnished to the Trustee pursuant to Section 3.05 and Section 3.06,
respectively, of the Pooling and Servicing Agreement by first class mail as
soon as practicable after such statements and reports are furnished to the
Trustee,
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(ii) copies of each amendment to any of the Basic Documents, (iii) copies
of all reports or other communications (financial or other) furnished to
holders of the Certificates, and copies of any reports and financial
statements furnished to or filed with the Commission, any governmental or
regulatory authority or any national securities exchange, and (iv) from
time to time such other information as the Representative may reasonably
request concerning the Trust or BCRC or concerning BCI in its capacity as
Seller or Servicer of the Receivables included in the Trust;
(i) to the extent, if any, that the ratings provided with respect to
the Certificates by the rating agency or rating agencies rating the
Certificates (each, a "Rating Agency") are conditional upon the furnishing
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of documents or the taking of any other action by BCRC or BCI, BCRC or BCI,
as applicable, shall furnish such documents and take any other such action;
(j) to use the net proceeds received by BCRC from the sale of the
Certificates pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(k) if required by law, to register the Certificates in a timely
manner pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act);
(l) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
fees, costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing, all
fees, costs and expenses (i) incident to the preparation, issuance,
execution, authentication and delivery of the Certificates, including any
fees, costs and expenses of the Trustee or any transfer agent, (ii)
incident to the preparation, printing and filing under the Securities Act
of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Certificates under the laws of such jurisdictions as the Underwriter may
reasonably designate (including reasonable fees of counsel for the
Underwriter and their disbursements with respect thereto), (iv) in
connection with the printing (including word processing and duplication
costs) and delivery of this Agreement, the Basic Documents, the Preliminary
and Supplemental Blue Sky Memoranda and any Legal Investment Survey and the
furnishing to Underwriter and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided, (v) of BCRC's and BCI's counsel and accountants,
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(vi) incurred by BCRC or BCI in connection with any "roadshow" presentation
to potential investors, and (vii) payable to rating agencies in connection
with the rating of the Certificates; and
(m) from and after the Closing Date, not to take any action which in
the reasonable judgment of BCI or BCRC, as applicable, is inconsistent with
the Trust's ownership of the Receivables other than as permitted by the
Pooling and Servicing Agreement.
6. Conditions to the Obligations of the Underwriters. The
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obligations of the Underwriters hereunder are subject to the performance by each
of BCRC and BCI of its obligations hereunder and to the following additional
conditions:
(a) the Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective, not later than
5:00 P.M., New York City time, on the date hereof; and on or prior to the
Closing Date no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment shall be in effect, and no
proceedings for such purpose shall be pending before or to BCRC's or BCI's
knowledge threatened by the Commission; the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and regulations under
the Securities Act and in accordance with Section 5(a) hereof; and all
requests for additional information shall have been complied with to the
satisfaction of the Representative;
(b) the representations and warranties of each of BCRC and BCI
contained herein are true and correct in all material respects on and as of
the Closing Date as if made on and as of the Closing Date and the
representations and warranties of each of BCRC and BCI in the Basic
Documents will be true and correct in all material respects as of the dates
specified in the Basic Documents; and each of BCRC and BCI shall have
complied with all agreements and all conditions on its part to be performed
or satisfied hereunder and under the Basic Documents at or prior to the
Closing Date;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed by BCRC
or BCI by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities
Act;
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(d) since the date hereof there shall not have been any material
adverse change or any development involving a prospective material adverse
change, in or affecting the general affairs, business, management,
financial position, stockholders' equity or results of operations of BCRC
or BCI, otherwise than as set forth or contemplated in the Prospectus, the
effect of which in the reasonable judgment of the Representative makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Certificates on the Closing Date on the terms and in the
manner contemplated in the Prospectus;
(e) the Representative shall have received on and as of the Closing
Date a certificate of an executive officer of each of BCRC and BCI, in
which such officer, to the best of his or her knowledge after reasonable
investigation, shall state that (A) the representations and warranties of
BCRC and BCI, as applicable, in this Agreement are true and correct in all
material respects on and as of the Closing Date, (B) such officer has
specific knowledge about the financial matters of BCRC and BCI, as
applicable, and that each of BCRC and BCI, as applicable, has complied in
all material respects with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date, (C) the representations and warranties of BCRC and BCI, as
applicable, in the Basic Documents are true and correct in all material
respects as of the dates specified in the Basic Documents, (D) the
Registration Statement has become effective, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or to BCRC's or BCI's
knowledge, are threatened by the Commission, (E) the Prospectus does not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and
(F) subsequent to the date of the Prospectus, there has been no material
adverse change in the condition (financial or otherwise) of either BCRC or
BCI, as applicable, except as set forth in or contemplated in the
Registration Statement and the Prospectus or as described in such
certificate;
(f) X. Xxxxxxx Xxxxx, Vice President, Legal Affairs and General
Counsel of BCI, shall have furnished to the Underwriters his written
opinion, dated the Closing Date, in form and substance satisfactory to the
Representative, to the effect that:
(i) each of BCRC and BCI has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require
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such qualification, other than where the failure to be so qualified or
in good standing would not have a material adverse effect on it or the
transactions contemplated herein or in the Basic Documents;
(ii) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental investigations,
actions, suits or proceedings pending or, to the best of such
counsel's knowledge, threatened against or affecting BCRC or BCI or
any of their properties, or to which BCRC or BCI is or may be a party
or to which any property of BCRC or BCI is or may be the subject (i)
that are required to be disclosed in the Registration Statement or the
Prospectus, (ii) asserting the invalidity of this Agreement or of any
of the Basic Documents, (iii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents, (iv)
that may adversely affect the federal or state income, excise,
franchise or similar tax attributes of the Certificates as described
in the Prospectus under the headings "Prospectus Summary - Tax Status"
and "Certain Federal Income Tax Consequences," (v) that could
materially and adversely affect BCRC's or BCI's obligations under this
Agreement or any of the Basic Documents or (vi) which, if determined
adversely to BCRC or BCI, could individually or in the aggregate
reasonably be expected to have a material adverse effect on the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of BCRC or BCI, taken as
a whole, or that would reasonably be expected to materially adversely
affect the interests of the holders of the Certificates;
(iii) such counsel does not know of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or required to be filed as an
exhibit to the Registration Statement that are not described or filed
as required;
(iv) neither BCRC nor BCI is, nor with the giving of notice or
lapse of time or both would be, in violation of or in default under,
its Certificate of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which BCRC or BCI is a party or by
which BCRC or BCI or any of their properties are bound, except for
violations and defaults which individually and in the aggregate are
not material to BCRC and its subsidiaries, taken as a whole, or BCI
and its subsidiaries, taken as a whole, or to the holders of the
Certificates; the issue and sale of the Certificates and the
execution, delivery
13
and performance by BCRC and BCI, as applicable, of the Certificates,
the Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to
which BCRC or BCI is a party or by which BCRC or BCI is bound or to
which any of the property or assets of BCRC or BCI is subject, nor
will any such action conflict with or result in any breach or
violation of the provisions of the Certificate of Incorporation, or
the By-Laws of BCRC or BCI or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over BCRC or BCI, or any of their properties;
(v) no consent, approval, authorization, order, license,
registration, filing or qualification of or with any court or
governmental agency or body is required for the issue and sale of the
Certificates or the consummation of the other transactions
contemplated by this Agreement or the Basic Documents, except such
consents, approvals, authorizations, orders, licenses, registrations,
filings or qualifications as have been obtained under the Securities
Act and as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Certificates by
the Underwriter and any financing statements that have been filed in
connection with the perfection of the Trust's security interest in the
Receivables; and
(vi) each of BCRC and BCI owns, possesses or has obtained all
licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory
organizations and all courts and other tribunals, domestic or foreign,
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as conducted as of the date
hereof, and neither BCRC nor BCI has received any actual notice of any
proceeding relating to revocation or modification of any such license,
permit, certificate, consent, order, approval or other authorization,
except as described in the Registration Statement and the Prospectus;
and each of BCRC and BCI is in compliance with all laws and
regulations relating to the conduct of its business as conducted as of
the date of the Prospectus.
14
(g) Ropes & Gray, special counsel for BCI, shall have furnished to the
Underwriters their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representative, to the effect that:
(i) BCI is a corporation duly incorporated, validly existing
and in good standing under the laws of The Commonwealth of
Massachusetts, and has the corporate power and authority to own its
properties and assets in Massachusetts and to transact the business in
which it is engaged or presently proposes to engage in Massachusetts;
(ii) BCI has the requisite corporate power to execute and
deliver each Basic Document and this Agreement and to perform its
obligations hereunder and thereunder and has taken all necessary
corporate action to authorize the execution, delivery and performance
of each of the Basic Documents and this Agreement, and each of the
Basic Documents and this Agreement have been duly authorized, executed
and delivered by BCI;
(iii) Neither the execution and delivery by BCI of any Basic
Document or this Agreement, nor the consummation by BCI of the
transactions therein contemplated, nor the issuance of the
Certificates by the Trust or the public offering thereof as
contemplated in the Prospectus, will conflict with or result in a
breach of, or constitute a default (with notice or the passage of time
or both) under, or (except as required or permitted pursuant to any
Basic Document or this Agreement) result in the imposition of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other
security interest of any other person upon any of the property or
assets of BCI pursuant to, (1) any provision of any Massachusetts law,
governmental rule or regulation currently applicable to BCI or (2) the
Articles of Organization or By-Laws of BCI; and
(iv) No consent, approval, authorization or order of, or
registration, filing or declaration with, any Massachusetts court or
governmental agency or governmental body is required (1) for the due
execution, delivery and performance by BCI of any Basic Document or
this Agreement or (2) for the offer, sale or delivery of the
Certificates, except for such consents, approvals, authorizations,
orders, registrations, filings or declarations as may be required
under state securities or Blue Sky laws.
(h) Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel for BCRC and
BCI, shall have furnished to the Underwriters their written opinion, dated
the Closing Date, in form and
15
substance satisfactory to the Representative, to the effect that:
(i) BCRC is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware;
(ii) BCRC has the requisite corporate power to execute and
deliver each of the Basic Documents and this Agreement and to perform
its obligations thereunder and hereunder;
(iii) Each of the Basic Documents and this Agreement has been
duly authorized by all necessary corporate action on the part of BCRC
and duly executed and delivered by each of BCI and BCRC, and
constitutes the valid, legal and binding obligation of each of BCI and
BCRC, enforceable against each of BCI and BCRC in accordance with its
terms;
(iv) The direction by BCRC to the Trustee to execute,
authenticate and deliver the Certificates has been duly authorized by
all necessary corporate action on the part of BCRC, and as of the
Closing Date, the Certificates will be duly and validly authorized,
and, when duly and validly executed and authenticated by the Trustee
and delivered to BCRC in accordance with the Pooling and Servicing
Agreement, and following delivery to and payment therefor by the
Underwriters, will be validly issued and outstanding and entitled to
the benefits of the Pooling and Servicing Agreement;
(v) Neither the execution and delivery by BCI or BCRC of the
Basic Documents and this Agreement, nor the consummation by BCI or
BCRC of the transactions therein contemplated nor the issuance of the
Certificates by the Trust, will conflict with or result in a breach
of, or constitute a default (with notice or passage of time or both)
under, or result in the imposition of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest of any
other person upon any of the property or assets of BCI or BCRC
pursuant to, except as required or permitted pursuant thereto, (1) any
provision of any New York State or federal law, governmental rule or
regulation currently applicable to BCI or BCRC (based upon our review
of those laws, rules and regulations which in our experience are
normally applicable to transactions of this type, but without having
made a special investigation concerning any other law, rule or
regulation and without expressing any opinion as to any federal or
state securities laws, rules or regulations or the polices underlying
such laws), (2) the Certificate of Incorporation or By-Laws of BCRC or
(3) any material indenture, mortgage, contract or other
16
instrument (A) to which BCI or BCRC is a party or by which either of
them is bound or to which any of their property is subject, (B)
currently in effect and (C) as to which such counsel has represented
either BCI or BCRC;
(vi) No consent, approval, authorization or order of, or
registration, filing or declaration with, any New York State or
federal court, governmental agency or governmental body is required
(1) for the due execution, delivery and performance by BCI or BCRC of
the Basic Documents and this Agreement or (2) for the offer, issuance,
sale or delivery of the Certificates by BCRC in the manner and under
the circumstances contemplated by the Basic Documents and this
Agreement, except such as shall have been obtained or made on or prior
to the Closing Date, unless the failure to obtain or to make such on
or prior to the Closing Date will not materially adversely affect the
ability of BCI or BCRC to perform its obligations under the Basic
Documents and this Agreement and except for such consents, approvals,
authorizations, orders, registrations, filings or declarations
required under the state securities or Blue Sky laws or the Uniform
Commercial Code of the State of Vermont;
(vii) Except as may be separately disclosed to the Underwriters
in writing regarding BCI, such counsel has not been engaged as counsel
for either BCI or BCRC in connection with any pending or overtly
threatened (by written communication) legal or governmental
proceedings to which BCI or BCRC is a party or to which any property
of BCRC is the subject, other than such proceedings which, in their
opinion, if adversely determined, are not reasonably likely to have a
material adverse effect upon (a) the financial condition of BCI or
BCRC or (b) the performance by BCI or BCRC of its obligations under,
or the validity and enforceability of, any of the Basic Documents or
this Agreement;
(viii) The Pooling and Servicing Agreement creates in favor of
the Trustee a security interest in the rights of BCRC in the
Receivables. To the extent that such security interest is not an
interest of a buyer of chattel paper, then the Pooling and Servicing
Agreement creates in favor of the Trustee a security interest in the
rights of BCRC in the proceeds of such Receivables;
(ix) If the chief executive office of BCRC is located in the
State of Vermont, then the laws (including the conflict of laws rules)
of the State of Vermont govern the perfection and effect of perfection
or non-perfection of the security interests described
17
in paragraph (viii) above which are perfected by filing;
(x) the statements in the Prospectus under "Amendments to
Pooling and Servicing Agreement and Receivables Purchase Agreement,"
"Description of the Certificates" and "Description of the Receivables
Purchase Agreement" insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred to therein,
fairly present in all material repects the information called for with
respect to such legal matters, documents or proceedings; the
statements in the Registration Statement and the Prospectus under the
headings "Certain Federal Income Tax Consequences," "Employee Benefit
Plan Considerations" and "Certain Legal Aspects of the Receivables,"
to the extent they constitute descriptions of matters of law or legal
conclusions with respect thereto, have been prepared or reviewed by
such counsel and are correct in all material respects;
(xi) such counsel does not know of any contract or other
document of a character required by the Securities Act to be filed as
an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus or required to be
described in the Registration Statement or the Prospectus which is not
filed or incorporated by reference or described as required.
(xii) the Registration Statement has become effective under the
Securities Act and the Prospectus has been filed with the Commission
pursuant to Rule 424(b) promulgated under the Securities Act; to such
counsel's knowledge, 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 threatened by the
Commission; such counsel is of the opinion that at the time the
Registration Statement became effective and the Prospectus was filed,
respectively, the Registration Statement and the Prospectus and any
amendments and supplements thereto (other than any accounting,
statistical or financial data included therein, as to which such
counsel need express no opinion) as of their respective effective date
or date of issuance complied as to form in all material respects with
the requirements of the Securities Act; and while not passing upon and
not assuming responsibility for and not to be deemed to have
independently verified the accuracy, completeness or fairness of the
Registration Statement or the Prospectus (except for those statements
made under the headings in the Prospectus identified in paragraph (x)
above insofar as they relate to matters of law or legal
18
conclusions) nothing has come to such counsel's attention, in the
course of participating with officers of BCI and BCRC and
representatives of BCI's and BCRC's auditors in discussions regarding
the business and affairs of BCI and BCRC at which the contents of the
Registration Statement and Prospectus and related matters were
discussed, which would lead such counsel's to believe that (other than
the accounting, statistical or financial data included therein, as to
which such counsel need express no belief) the Registration Statement
and the prospectus included therein at the time the Registration
Statement became effective contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and that the Prospectus as of its date and as of the
Closing Date, as amended or supplemented, if applicable, contained or
contains any untrue statement of a material fact or omitted or omits
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;
(xiii) this Agreement, the Basic Documents and the Certificates
conform in all material respects to the descriptions thereof contained
in the Registration Statement and the Prospectus;
(xiv) the Pooling and Servicing Agreement and the Supplement are
not required to be qualified under the Trust Indenture Act of 1939, as
amended, and the Trust is not now, and immediately following the sale
of the Certificates hereto, will not be required to be registered as
an "investment company" under the Investment Company Act of 1940, as
amended; and
(xv) for federal income tax purposes, the Certificates will
properly be characterized as indebtedness of BCRC that is secured by
the Receivables and pursuant to Section 6.03(b)(vi) of the Pooling and
Servicing Agreement, for federal income tax purposes, the issuance of
the Certificates (x) will not adversely affect the federal income tax
characterization as debt of BCRC of any issued and outstanding Series
of certificates issued by the Trust and will not cause or constitute a
taxable event with respect to any certificateholders or the Trust.
(i) Downs Xxxxxxx & Xxxxxx, PC, special counsel to BCI and BCRC,
shall have furnished to the Underwriters their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative, to
the effect that:
19
(i) The Receivables constitute "chattel paper" as defined in
section 9-105(1)(b) of the Uniform Commercial Code;
(ii) The conflict of laws principles contained in Title 9A of
Vermont Statutes Annotated provide that the parties may designate the
law of another state as governing the rights and duties of the parties
if the transaction bears a reasonable relation to the state whose law
is chosen, except that (1) article 9 of the Uniform Commercial Code
governs the perfection and the effect of perfection or nonperfection
of possessory security interests in chattel paper located within the
State of Vermont, and (2) article 9 of the Uniform Commercial Code
governs the perfection and the effect of perfection or nonperfection
of non-possessory security interests in chattel paper if the debtor's
chief executive office is located in the State of Vermont; therefore,
notwithstanding the contractual choice of New York law contained in
the Pooling and Servicing Agreement and the Receivables Purchase
Agreement, the conflict of laws principles contained in Title 9A of
Vermont Statutes Annotated require that the perfection and the effect
of perfection or nonperfection of security interest in the Receivables
and the Collateral Security be determined under the Uniform Commercial
Code. The express choice of law provisions contained in the Pooling
and Servicing Agreement and the Receivables Purchase Agreement,
insofar as such provisions relate to the attachment or creation of
security interest in the Receivables and the Collateral Security, will
be given effect by a federal or state court located in the State of
Vermont unless such a court determines that the application of New
York law would contravene a public policy of the State of Vermont;
(iii) Immediately prior to the transfer of the Receivables to
the Trustee, BCRC's interest in the Receivables, the Collateral
Security, the security interests in the Eligible Products securing the
Receivables and the proceeds of each of the foregoing were perfected
upon the filing of the UCC-1 financing statement the form of which is
attached to such opinion with the Secretary of State of the State of
Vermont and constituted a perfected first priority interest therein.
If a court concludes that the transfer of the Receivables from BCRC to
the Trustee was a sale, the interest of the Trustee in the
Receivables, the Collateral Security, the security interests in the
Eligible Products securing the Receivables and the proceeds of each of
the foregoing was perfected upon the filing of the UCC-1 financing
statement the form of which is attached to such opinion with the
Secretary of State of the State of Vermont and constitutes a first
20
priority perfected interest therein. If a court concludes that such
transfer was not a sale, the Pooling and Servicing Agreement
constitutes a grant by BCRC to the Trustee of a valid security
interest in the Receivables, the Collateral Security, the security
interests in the Eligible Products securing the Receivables and the
proceeds of each of the foregoing, which security interest was
perfected upon the filing of the UCC-1 financing statement the form of
which is attached to such opinion with the Secretary of State of the
State of Vermont and constitutes a first priority perfected security
interest therein. No filing or other action, other than the filing of
the UCC-1 financing statements with the Secretary of State of the
State of Vermont referred to above, was or is necessary to perfect and
maintain the interest or the security interest of the Trustee in the
Receivables, the Collateral Security, the security interests in the
Eligible Products securing the Receivables and the proceeds of each of
the foregoing against third parties;
(iv) With respect to the income tax consequences of the
issuance of the Certificates addressed in the opinion of Xxxxxx, Xxxxx
& Bockius LLP, a copy of which is attached to such opinion, Vermont
income tax law conforms to federal income tax law;
(v) Neither the execution and delivery by BCI or BCRC of any
of the Basic Documents or this Agreement, nor the consummation by BCI
or BCRC of the transactions contemplated therein or herein, will
violate any provision of any Vermont law, governmental rule or
regulation currently applicable to the respective businesses of BCI or
BCRC; and
(vi) No consent, approval, authorization or order of, or
registration, filing or declaration with, any Vermont court or
governmental agency or governmental body is required for the due
execution and delivery by BCI or BCRC of any of the Basic Documents or
this Agreement except (1) for such consents, approvals,
authorizations, orders, registrations, filings or declarations
required under state securities or Blue Sky laws, as to which such
counsel expresses no opinion and (2) such consents, approvals,
authorizations, orders, registrations, filings or declarations as have
been obtained.
(j) Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel for BCI and BCRC,
shall have furnished to the Underwriters their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative,
relating to certain insolvency and bankruptcy matters.
21
(k) on the date hereof and also on the Closing Date, the Underwriter
shall have received a letter from Xxxxx & Young, dated the date of delivery
thereof, confirming that they are independent public accountants within the
meaning of the Securities Act and substantially in the form heretofore
agreed and otherwise in form and substance satisfactory to the
Representative and its counsel;
(l) the Underwriters shall have received on and as of the Closing Date
an opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the
Underwriters, with respect to the validity of the Pooling and Servicing
Agreement and the Certificates, the Registration Statement, the Prospectus
and other related matters as the Representative may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(m) The Underwriters shall have received an opinion of Xxxxx & Case,
counsel to the Trustee, dated the Closing Date, in form and substance
reasonably satisfactory to the Representative and counsel to the
Underwriters, to the effect that:
(i) The Trustee has been duly incorporated and is validly
existing and in good standing under the laws of the State of New York
with full power and authority to transact the business of banking and
has the power and authority to enter into and to perform all actions
required of it under the Pooling and Servicing Agreement and the
Supplement;
(ii) Each of the Pooling and Servicing Agreement and the
Supplement has been duly authorized, executed and delivered by the
Trustee and constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms,
except as such enforceability may be limited by (A) bankruptcy,
insolvency, liquidation, reorganization, moratorium, conservatorship,
receivership or other similar laws now or hereafter in effect relating
to the enforcement of creditors' rights in general, as such laws would
apply in the event of a bankruptcy, insolvency, liquidation,
reorganization, moratorium, conservatorship, receivership or similar
occurrence affecting the Trustee, and (B) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) The Certificates have been duly, executed authenticated
and delivered by the Trustee;
(iv) The execution and delivery of the Pooling and Servicing
Agreement and the Supplement by the
22
Trustee and the performance by the Trustee of their respective terms
do not conflict with or result in a violation of (A) any law or
regulation of the United States of America or the State of New York
governing the banking or trust powers of the Trustee, or (B) the
Certificate of Incorporation or By-laws of the Trustee; and
(v) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or
the State of New York having jurisdiction over the banking or trust
powers of the Trustee is required in connection with the execution and
delivery by the Trustee of the Pooling and Servicing Agreement and the
Supplement or the performance by the Trustee thereunder.
(n) the Underwriters shall have received an officer's certificate
dated the Closing Date of the chairman of the board, the president, an
executive vice president or the treasurer of the Trustee in which such
officer shall state on behalf of the Trustee that, to the best of such
officer's knowledge after reasonable investigation, the representations and
warranties of the Trustee contained in the Pooling and Servicing Agreement
and the Supplement are true and correct in all material respects, and that
the Trustee has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied under the
Pooling and Servicing Agreement and the Supplement at or prior to the
Closing Date;
(o) the Underwriters shall have received a certificate of the Trustee,
signed by one or more duly authorized officers of the Trustee, dated the
Closing Date, as to the due acceptance of the Pooling and Servicing
Agreement and the Supplement by the Trustee and the due execution and
delivery of the Certificates by the Trustee thereunder and such other
matters as the Representative shall reasonably request;
(p) the Underwriters shall have received a letter or letters from each
counsel delivering any written opinion to any Rating Agency in connection
with the transaction described herein which is not otherwise described in
this Agreement allowing the Underwriters to rely on such opinion as if it
were addressed to the Underwriters;
(q) the Representative shall have received copies of letters from
Xxxxx'x Investors Service, Inc. ("Moody's") and Standard & Poor's Ratings
-------
Service ("S&P") stating that the Class A Certificates shall have been rated
---
at least Aaa by Xxxxx'x and AAA by S&P and that the Class B Certificates
shall have been rated no lower than A3 by Xxxxx'x and no
23
lower than A by S&P, and such ratings shall not have been rescinded;
(r) the Representative shall have received a copy (including by means
of telecopier) of (i) a file-stamped acknowledgment copy of the UCC-1
financing statements on Form UCC-1 filed with the Secretary of State of the
State of Vermont with respect to the transfer of the Receivables by BCI to
BCRC pursuant to the Receivables Purchase Agreement, identifying the
Receivables as collateral and naming BCI as debtor and BCRC as the secured
party, and (ii) a file-stamped acknowledgment copy of the UCC-1 financing
statements on Form UCC-1 filed with the Secretary of State of the State of
Vermont with respect to the transfer of the Receivables by BCRC to the
Trustee pursuant to the Pooling and Servicing Agreement, identifying the
Receivables as collateral and naming BCRC as debtor and the Trustee as the
secured party; and
(s) on or prior to the Closing Date BCRC shall have furnished to the
Underwriters such further certificates and documents as the Representative
shall reasonably request.
7. (a) Indemnification and Contribution. BCRC and BCI agree to jointly
--------------------------------
and severally indemnify and hold harmless each Underwriter, each affiliate of an
Underwriter which assists such Underwriter in the distribution of the
Certificates and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages, liabilities and
expenses (including, without limitation, the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if BCRC shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities and expenses are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Underwriter furnished to
BCRC or BCI in writing by such Underwriter through the Representative expressly
for use therein; provided, further, that neither BCI nor BCRC shall be liable to
-------- -------
any Underwriter, any affiliate of an Underwriter or any person controlling such
Underwriter under the indemnity agreement in this subsection (a) with respect to
any of such documents to the extent that any such loss, claim, damage or
liability of such Underwriter or such affiliate or such controlling person
results from the fact that such Underwriter sold the Certificates to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus or of the Prospectus as then amended or
supplemented (excluding
24
documents incorporated by reference), whichever is most recent, if BCI and/or
BCRC has previously furnished copies thereof to the Representative.
(b) Each Underwriter agrees to indemnify and hold harmless BCRC, its
directors, its officers who sign the Registration Statement, BCI and each person
who controls BCRC within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from BCRC and BCI to each Underwriter in Subsection (a) above, but only with
reference to information relating to such Underwriter furnished to BCRC or BCI
in writing by such Underwriter through the Representative expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to Subsections
(a) or (b) above, such person (the "Indemnified Person") shall promptly notify
------------------
the person against whom such indemnity may be sought (the "Indemnifying Person")
-------------------
in writing, and the Indemnifying Person, at its option or upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and to control the defense
and shall pay the fees and expenses of such counsel related to such proceeding.
In any such proceeding, any Indemnified Person shall have the right to retain
its own counsel and to participate in the defense, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed in
writing to the contrary, (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred to the extent reimbursement is required after
giving consideration to the preceding sentence. Any such separate firm for the
Underwriters, each affiliate of any Underwriter which assists such Underwriter
in the distribution of the Certificates and such control persons of the
Underwriters shall be designated in writing by X.X. Xxxxxx Securities Inc. and
any such separate firm for BCRC, its directors, its officers who sign the
Registration Statement, BCI and such control persons of BCRC shall be designated
in writing by BCRC or BCI. The Indemnifying Person
25
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability for which
indemnification is provided pursuant to subsection (a) or (b) of this Section 7
by reason of such settlement or judgment. No Indemnifying Person shall, without
the prior written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
(d) If the indemnification provided for in subsections (a) or (b) above is
unavailable to an Indemnified Person in respect of any losses, claims, damages,
liabilities or expenses referred to therein and to which such Indemnified Person
is entitled to indemnification in accordance with the preceding terms of this
Section 7, then each Indemnifying Person under such subsection, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by BCRC and BCI on the one hand and the
Underwriter on the other hand from the offering of the Certificates or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of BCRC and BCI on
the one hand and the Underwriter on the other in connection with the statements
or omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by BCRC and BCI on the one hand and the Underwriter on the
other shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by BCRC and the
total underwriting discounts and the commissions received by the Underwriter
bear to the aggregate public offering price of the Certificates. The relative
fault of BCRC and BCI on the one hand and the Underwriter on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by BCRC or BCI or by the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
BCRC, BCI and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
--- ----
allocation (even if BCRC and BCI were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
26
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages, liabilities and expenses referred to in this subsection (d) shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total price at which
the Certificates underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several in proportion to the respective principal
amount of the Certificates set forth opposite their names in Schedule I hereto,
and not joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any Indemnified
Person referred to above at law or in equity.
(e) The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of each of BCRC and BCI set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of BCRC or BCI, its officers or directors or any other person controlling BCRC
or BCI and (iii) acceptance of and payment for any of the Certificates.
8. Termination. Notwithstanding anything herein contained, this
-----------
Agreement may be terminated in the absolute discretion of the Representative, by
notice given to BCRC, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange or the National Association of Securities
Dealers, Inc., (ii) trading of any securities of or guaranteed by BCRC or BCI
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities, or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the reasonable
judgment of the Representative, is material and adverse and which, in the
reasonable judgment of the Representative, makes it impracticable
27
or inadvisable to market the Certificates on the terms and in the manner
contemplated in the Prospectus.
9. Effectiveness of Agreement; Default of Underwriters. This Agreement
---------------------------------------------------
shall become effective upon the later of (x) execution and delivery hereof by
the parties hereto and (y) release of notification of the effectiveness of the
Registration Statement (or, if applicable, any post-effective amendment) by the
Commission.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase the Certificates which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of the Certificates
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of the
Certificates to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of the
Certificates set forth opposite their respective names in Schedule I bears to
the aggregate principal amount of Certificates set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Representative may specify, to purchase the Certificates which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of the Certificates
--------
that any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of the Certificates without the written consent of such Underwriter. If
on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Certificates which it or they have agreed to purchase hereunder on such
date, and the aggregate principal amount of Certificates with respect to which
such default occurs is more than one-tenth of the aggregate principal amount of
Certificates to be purchased on such date, and arrangements satisfactory to the
Representative, BCI and BCRC for the purchase of such Certificates are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or BCI or BCRC. In any
such case either you or BCI or BCRC shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. Expenses Upon Termination. If this Agreement shall be terminated by
-------------------------
the Underwriters, or any of them, because of any failure or refusal on the part
of BCRC or BCI to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason BCRC or BCI shall be unable to perform its
obligations under this Agreement or any condition of the
28
Underwriters' obligations set forth in Section 6 cannot be fulfilled, BCRC and
BCI agree to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves severally, for all
reasonably out-of-pocket expenses (including the reasonable fees and expenses of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder; provided, that this Section 10
--------
shall not apply to a termination of this Agreement pursuant to Section 8 or 9.
11. Successors. This Agreement shall inure to the benefit of and be
----------
binding upon BCRC, BCI, the Underwriters, each affiliate of any Underwriter
which assists such Underwriter in the distribution of the Certificates, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Certificates from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
12. Action by Representative; Notices. Any action by the Underwriters
---------------------------------
hereunder may be taken by the Representative on behalf of the Underwriters, and
any such action taken by the Representative shall be binding upon the
Underwriters. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when received. Notices to
the Underwriter shall be given to the Representative c/o X.X. Xxxxxx Securities
Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (Facsimile No.: (212) 648-
5909); Attention: Syndicate Desk. Notices to BCRC shall be given to it at Post
Office Box 5544, Burlington, Vermont 05402, (Facsimile No.: (000) 000-0000);
Attention: Vice President-Finance, with a copy to Xxxxxx, Xxxxx & Xxxxxxx LLP;
Attention: Xxxxxxxxxxx Xxxxxxx. Notices to BCI shall be given to it at 0000
Xxxxxxxx Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, (Facsimile No.: (000) 000-0000);
Attention: Vice President-Finance, with a copy to Xxxxxx, Xxxxx & Xxxxxxx LLP;
Attention: Xxxxxxxxxxx Xxxxxxx;.
13. Counterparts; Applicable Law. THIS AGREEMENT MAY BE SIGNED IN
----------------------------
COUNTERPARTS, EACH OF WHICH SHALL BE AN ORIGINAL AND ALL OF WHICH TOGETHER SHALL
CONSTITUTE ONE AND THE SAME INSTRUMENT. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF.
29
If the foregoing is in accordance with your understanding of our agreement,
please sign and return the enclosed counterparts hereof, whereupon it will
become a binding agreement among BCRC, BCI and the Underwriter in accordance
with its terms.
Very truly yours,
BOMBARDIER CREDIT RECEIVABLES
CORPORATION
By:_______________________
Name:
Title:
By:_______________________
Name:
Title:
BOMBARDIER CAPITAL INC.
By:_______________________
Name:
Title:
By:_______________________
Name:
Title:
Accepted: January __, 1997
X.X. XXXXXX SECURITIES INC.
Acting on behalf of itself
and the several Underwriters
listed in Schedule I hereto
By:___________________________
Name:
Title:
30
SCHEDULE I
PRINCIPAL AMOUNT OF
SECURITIES TO BE PURCHASED
--------------------------
Underwriter
-----------
X.X. Xxxxxx Securities Inc............................
CS First Boston Corporation...........................
Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx Incorporated......
Total...............====================
31
