EXHIBIT 99
BOMBARDIER CAPITAL MORTGAGE SECURITIZATION CORPORATION
------------------------------------
Pass-Through Certificates
(Issuable in Series)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
------------------------------------
July 1998
Bombardier Capital Mortgage Securitization Corporation, a Vermont
corporation (the "Company"), proposes to sell Pass-Through Certificates
("Certificates") in various series (each a "Series"), in one or more offerings
on terms to be determined at the time of sale, each to be issued by a separate
trust (a "Trust") under a pooling and servicing agreement for such Series that
incorporates by reference standard terms (such agreement collectively with such
standard terms, the "Pooling and Servicing Agreement"), among the Company,
Bombardier Capital Inc. ("BCI"), a Massachusetts corporation, as servicer (in
such capacity, the "Servicer"), and the trustee named therein (the "Trustee").
The certificates of each Series (the "Certificates") will represent in the
aggregate the entire beneficial ownership interest in a segregated pool of
manufactured housing installment sales contracts, manufactured housing
installment sales agreements ("Contracts") secured by units of manufactured
housing ("Manufactured Homes"), Contracts secured by liens on the real estate on
which the related Manufactured Homes are located and/or mortgage loans
("Mortgage Loans" and, collectively with Contracts, "Assets") secured by first
liens on real estate to which the related Manufactured Homes are deemed
permanently affixed ("Mortgaged Properties").
The Trustee may make one or more elections to have the assets of the
Trust or portions thereof treated as real estate mortgage investment conduits
(each, a "REMIC") under the Internal Revenue Code of 1986, as amended (the
"Code"). In the event that more than one REMIC is created for a Series, all
references herein to a REMIC shall be deemed to refer to all related REMICs,
unless the context otherwise requires.
The Company will sell, assign and transfer the Assets acquired by it to
the related Trust, all in exchange for the Certificates of the related Series
issued by that Trust. The Assets will have been acquired by the Company from BCI
or from one or more sellers (each, in such capacity, a "Seller"), in each case
pursuant to a sales agreement (each, a "Sales Agreement") between the Company
and the Seller of such Assets. The net proceeds to the Company from the sale of
each Series of the Certificates principally will be used to pay the purchase
price of the Assets acquired for the related Trust.
The Certificates are more fully described in the Registration Statement
(as hereinafter defined). Each Series of Certificates, and any classes of
Certificates within each Series, may vary, among other things, as to number and
types of classes, aggregate principal amount, final stated distribution dates,
the rate or rates of interest accruing thereon, and the allocation, priority and
timing of distributions thereon.
From time to time, the Company may enter into one or more terms
agreements (each, a "Terms Agreement") substantially in the form of the Form of
Terms Agreement attached hereto as Exhibit A, which Terms Agreements provide for
the sale of all or a portion of certain classes of a Series of Certificates
(such certificates to be so purchased being herein collectively referred to as
the "Underwritten Certificates") to the underwriters named in the related
underwriting agreement (the "Underwriters"). The standard provisions set forth
herein are to be incorporated by reference in any such Terms Agreement. A Terms
Agreement, including the provisions hereof incorporated therein by reference, is
herein referred to as an "Underwriting Agreement" or an "Agreement." Unless
-2-
otherwise defined herein, all capitalized terms used herein shall have the
meanings assigned to them in the Terms Agreement into which the standard
provisions are incorporated and if not defined therein shall have the meanings
assigned to them in the related Pooling and Servicing Agreement.
The Terms Agreement relating to each offering of Underwritten
Certificates shall specify, among other things, the principal amount of the
Underwritten Certificates to be issued and their terms not otherwise specified
in the related Pooling and Servicing Agreement, the price or prices at which the
Underwritten Certificates are to be purchased by the Underwriters from the
Company, the initial public offering price or the method by which the price at
which such Underwritten Certificates are to be sold will be determined, the
names of the firm(s), if any, designated as representative(s) of the
Underwriters (the "Representatives"), and the principal amount of the
Underwritten Certificates to be purchased by each Underwriter, and shall set
forth the date, time and manner of delivery of the Underwritten Certificates and
payment therefor.
The Company is a limited-purpose finance corporation and a wholly-owned
subsidiary of BCI, which in turn, is an indirect wholly-owned subsidiary of
Bombardier Inc., a Canadian corporation.
1. Representations and Warranties. (a) The Company and BCI, jointly and
severally, represent and warrant to, and agree with, each Underwriter that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 for
the registration of the Underwritten Certificates under the Securities
Act of 1933, as amended (the "Act"), which registration statement has
become effective, and has filed such amendments thereto as may have
been required to the date hereof. Such registration statement, as
amended at the date hereof, meets the requirements set forth in Rule
415 under the Act and complies in all material respects with the Act
and the rules and regulations thereunder. The Company proposes to file
with the Commission pursuant to Rule 424 under the Act a supplement to
the form of prospectus included in such registration statement relating
to the Underwritten Certificates and the plan of distribution thereof.
Such registration statement, including the exhibits thereto and
documents incorporated by reference therein, as amended at the date
hereof, is hereinafter called the "Registration Statement;" the latter
of such prospectus in the form in which it appears in the Registration
Statement or in the form most recently revised and filed with the
Commission pursuant to Rule 424 is hereinafter called the "Basic
Prospectus;" and the form of prospectus supplement specifically
relating to the Underwritten Certificates, in the form in which it
shall be first filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented and the information,
if any, filed with the Commission pursuant to the Exchange Act and
incorporated by reference therein) is hereinafter called the "Final
Prospectus." Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 or, prior to the effective
date of the Registration Statement, pursuant to Rule 402(a), 424(a) or
430A, is hereinafter called a "Preliminary Final Prospectus." Any
supplement to the Basic Prospectus specifically relating to the
Underwritten Certificates shall be referred to by itself as the
"Prospectus Supplement."
-3-
(ii) As of the date of this Agreement, when the Final
Prospectus is first filed pursuant to Rule 424 under the Act, when,
prior to the Closing Date (as hereinafter defined), any amendment to
the Registration Statement becomes effective, when any supplement to
the Final Prospectus is filed with the Commission, and at the Closing
Date, (A) the Registration Statement, as amended as of any such time,
and the Final Prospectus, as amended or supplemented as of any such
time, complies and will comply in all material respects with the
applicable requirements of the Act and the rules and regulations
thereunder and (B) the Registration Statement, as amended as of any
such time, does not contain and will not contain any untrue statement
of a material fact and does not omit and will not omit to state any
material fact required to be stated therein or necessary in order to
make the statements made therein not misleading and the Final
Prospectus, as amended or supplemented as of any such time, does not
and will not include an untrue statement of a material fact and does
not omit and will not omit to state a material fact necessary in order
to make the statements made therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in reliance
upon and in conformity with (i) the Underwriters' Information (as
defined in the related Terms Agreement) or (ii) other than with respect
to any Asset Pool Information (if so defined in the related Terms
Agreement), any Collateral Term Sheet, Structural Term Sheet, Series
Term Sheet or Computational Materials (each as defined in Section
5(b)(vi) below).
(iii) The documents incorporated by reference in the
Registration Statement and the Final 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 Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations of the Commission thereunder.
(iv) As of the date of this Agreement, when the Final
Prospectus is first filed pursuant to Rule 424 under the Act, when,
prior to the Closing Date, any amendment to the Registration Statement
becomes effective, when any supplement to the Final Prospectus is filed
with the Commission, and at the Closing Date, there has not and will
not have been (A) any request by the Commission for any further
amendment of the Registration Statement or the Final Prospectus or for
any additional information, (B) any issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the initiation or threat of any proceeding for that purpose, or (C)
any notification with respect to the suspension of the qualification of
the Underwritten Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(v) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Vermont with full power and authority (corporate and other) to own,
lease and operate its properties and to conduct its business as it is
now conducted and as described in the Final Prospectus, and to enter
-4-
into and perform its obligations under the Agreement, each related
Sales Agreement and the related Pooling and Servicing Agreement, and
has qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction in which the character of
the business transacted by it or properties owned or leased by it
requires such qualification, except where the failure so to qualify
would not have a material adverse effect on the Company. The Company
holds all material licenses, certificates, franchises, and permits from
all governmental authorities necessary for the conduct of its business
as it is now conducted and as described in the Final Prospectus or as
is necessary for the performance of its obligations under any related
Sales Agreement or related Pooling and Servicing Agreement, and has
received no notice of proceedings relating to the revocation of any
such license, certificate or permit, that, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
affect materially and adversely the conduct of the business, results of
operations, net worth or condition (financial or otherwise) of the
Company.
(vi) The Company is not in violation of its articles of
incorporation or bylaws or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any contract, deed of trust, indenture, mortgage, loan agreement,
note, lease or other instrument to which it is a party or by which it
or its properties may be bound, which default might result in any
material adverse change in the financial condition, earnings, affairs
or business of the Company or which might materially and adversely
affect the properties or assets thereof or the ability to perform its
obligations under the Agreement, each related Sales Agreement, and the
related Pooling and Servicing Agreement.
(vii) The execution of the Terms Agreement, each related Sales
Agreement and the related Pooling and Servicing Agreement are within
the corporate power of the Company. The Agreement has been, and as of
the Closing Date the related Pooling and Servicing Agreement and each
related Sales Agreement will have been, duly and validly authorized,
executed and delivered by the Company, and assuming the valid
authorization, execution and delivery by the other parties thereto,
each constitutes, or will constitute, a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and to general principles of equity, regardless of whether such
enforcement is sought in a proceeding in equity or at law, and except
that with respect to the Agreement the provisions relating to
indemnification of the Underwriters may be unenforceable as against
public policy.
(viii) Neither the issuance and sale of the Underwritten
Certificates, nor the execution and delivery by the Company of the
Agreement, any related Sales Agreement or the related Pooling and
Servicing Agreement, nor the consummation by the Company of any of the
transactions herein or therein contemplated, nor compliance by the
Company with the provisions hereof or thereof, will (A) conflict with
or result in a breach of, or constitute a default under, any of the
provisions of the articles of incorporation or bylaws of the Company or
any law, governmental rule or regulation or any judgment, decree or
-5-
order binding on the Company or any of its properties, or any of the
provisions of any indenture, mortgage, deed of trust, contract or other
instrument to which the Company is a party or by which it is bound, or
(B) result in the creation or imposition of any lien, charge, or
encumbrance upon any of its properties pursuant to the terms of any
such indenture, mortgage, deed of trust, contract or other instrument.
(ix) No filing or registration with, notice to, qualification
of or with, or consent, approval, authorization or order or other
action of any person, corporation or other organization or of any
court, supervisory or governmental authority or agency is required for
the consummation by the Company of the transactions contemplated by
this Agreement or the related Pooling and Servicing Agreement except
such as have been, or will have been prior to the Closing Date,
obtained under the Act, or state securities laws or "Blue Sky" laws, or
any recordations of the assignment of the related Mortgage Loans, if
any, to the Trustee pursuant to the related Pooling and Servicing
Agreement that have not yet been completed.
(x) There are no actions, suits or proceedings against, or
investigations of, the Company pending, or, to the knowledge of the
Company, threatened, before any court, administrative agency or other
tribunal (A) asserting the invalidity of this Agreement, the related
Pooling and Servicing Agreement, any related Sales Agreement or the
Certificates of the related Series, (B) seeking to prevent the issuance
of the Certificates of the related Series or the consummation of any of
the transactions contemplated by the Agreement, any related Sales
Agreement or the related Pooling and Servicing Agreement, (C) which
might materially and adversely affect the business, operations,
financial condition (including, if applicable, on a consolidated
basis), properties or assets of the Company, performance by the Company
of its obligations under, or the validity or enforceability of, the
Agreement, the related Pooling and Servicing Agreement, any related
Sales Agreement, or the validity or enforceability of the Certificates
of the related Series or (D) seeking to affect adversely the federal or
state income tax attributes of the Underwritten Certificates as
described in the Final Prospectus.
(xi) Since the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there has
not been any material adverse change or development involving a
prospective material adverse change in the business, operations,
financial condition, properties or assets of the Company.
(xii) The Underwritten Certificates and Pooling and Servicing
Agreement will conform in all material respects to the descriptions
thereof contained in the Final Prospectus, and the Underwritten
Certificates, when duly and validly executed and authenticated by the
Trustee and delivered to and paid for by the Underwriters as provided
herein, will be validly issued and entitled to the benefits of the
related Pooling and Servicing Agreement.
(xiii) At the time of execution of the related Pooling and
Servicing Agreement, the Company will own the Assets being transferred
to the Trustee pursuant to the related Pooling and Servicing Agreement,
-6-
free and clear of any lien, adverse claim, mortgage, charge, pledge or
other encumbrance or security interest, and will not have assigned to
any other person any of its right, title or interest in such Assets,
and, upon the execution of the related Pooling and Servicing Agreement,
the Company will have transferred all its right, title and interest in
such Assets to the Trustee, provided that the Company will not be
deemed to be in breach of this representation and warranty to the
extent that a court of competent jurisdiction holds that at the time of
the execution of the related Pooling and Servicing Agreement the
Company had a first priority perfected security interest in such Assets
or that the Company granted to the Trust a first priority perfected
security interest in such Assets.
(xiv) Under generally accepted accounting principles, the
Company will report its transfer of the Assets to the Trustee pursuant
to the related Pooling and Servicing Agreement and the sale of the
Certificates of the related Series as a sale of its interest in such
Assets. The Company has been advised by its independent certified
public accountants that it concurs with such treatment under generally
accepted accounting principles. For federal income tax purposes, the
Company will treat the transfer of the Assets to the Trustee and the
sale of the Underwritten Certificates either as a transaction in which
it acts as the agent of one or more Sellers or as a sale of its
interest in the Assets.
(xv) As of the Closing Date, the Assets will be duly and
validly assigned to the Trustee or its nominee, UCC-1 financing
statements describing any Contracts as collateral and (i) naming the
Seller as "debtor," the Company as "secured party" and the Trustee as
"assignee" and (ii) naming the Company as "debtor" and the Trustee as
"secured party," will be filed in all filing offices where such filing
is necessary to perfect the Trustee's ownership or security interest in
any related Contracts, and any related Mortgage Notes will be endorsed
without recourse to the Trustee or to its nominee and delivered to the
Trustee or to an agent on its behalf and, where required in order to
transfer all right, title and interest to a Mortgage Loan. Upon
completion of the aforementioned actions, and, where required in order
to transfer a lien on a Mortgaged Property, upon the recordation of
assignments to the Trustee of any related Mortgages in the public
records in which such Mortgages shall have been recorded (which
recordation shall be effected unless the Underwriters receive an
opinion of counsel satisfactory to them (at the Company's expense) that
such recording is not required under applicable law to perfect the
Trustee's security interest in the related Mortgaged Property), the
Trustee will own each related Asset, subject to no prior lien,
mortgage, security interest, pledge, charge or other encumbrance,
except as permitted under the related Pooling and Servicing Agreement.
(xvi) As of the Closing Date, any letter of credit or surety
bond included in any accounts or funds constituting part of the Trust
with respect to the Underwritten Certificates will name the Trustee as
the beneficiary thereof and will be delivered to the Trustee, any cash
will be delivered to the Trustee and any Eligible Investments (as
defined in the related Pooling and Servicing Agreement) will be made in
the Trustee's name, and delivered to and/or assigned to the Trustee,
-7-
and the Trustee either will own such assets, or have a first priority
perfected security interest therein, in either case subject to no prior
lien, security interest, pledge, charge or other encumbrance.
(xvii) At the Closing Date, each Contract, Mortgage Note and
Mortgage will meet the criteria for selection described in the Final
Prospectus.
(xviii) At the Closing Date, any Primary Mortgage Insurance
Policies and Standard Hazard Insurance Policies (as such terms are
defined in the related Pooling and Servicing Agreement) that are
required to be maintained with respect to any of the related Assets
pursuant to the related Pooling and Servicing Agreement will have been
duly and validly authorized, executed and delivered by, and will
constitute legal, valid and binding obligations of the issuers of such
Primary Mortgage Insurance Policies and Standard Hazard Insurance
Policies (collectively, the "Insurers"), as the case may be, subject to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and to general principles of
equity, regardless of whether enforcement is sought in a proceeding in
equity or at law.
(xix) Except as otherwise provided in the related Terms
Agreement, each Class of the Underwritten Certificates so described in
the Final Prospectus, when issued, will constitute a "mortgage related
security" as such term is defined in Section 3(a)(41) of the Exchange
Act for so long as such Certificate is rated in one of the two highest
rating categories by a nationally recognized statistical rating
organization.
(xx) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement
and the related Pooling and Servicing Agreement and the execution,
delivery and sale of the Underwritten Certificates have been or will be
paid at or prior to the Closing Date.
(xxi) Neither the Company nor the Trust is, and the issuance
and sale of the Underwritten Certificates in the manner contemplated by
the Final Prospectus will not cause the Company or the Trust to become,
subject to registration or regulation as an "investment company" or an
affiliate of an "investment company" under (and as defined in) the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
(xxii) Immediately prior to the delivery of the Underwritten
Certificates to the Underwriters, the Company will own the Underwritten
Certificates free and clear of any lien, adverse claim, pledge,
encumbrance or other security interest, and will not have assigned to
any person any of its right, title or interest in the Underwritten
Certificates, and, upon consummation of the transactions contemplated
in this Agreement, the Company will have transferred all its right,
title and interest in the Underwritten Certificates to the
Underwriters.
(xxiii) For the purposes of Section 9-103(3)(d) of the Uniform
Commercial Code as in effect in the State of New York, Schedule I
hereto sets forth the locations of the Company's offices for the filing
of any UCC-1 financing statements, and the offices of the Company where
it keeps its records concerning the Assets are also listed in said
-8-
Schedule opposite its name and there has been no other such location
during the four months preceding the Closing Date.
(b) BCI further represents and warrants to, and agrees with, each
Underwriter that:
(i) BCI has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Massachusetts with full power and authority (corporate and other) to
own its properties and conduct its business as it is now conducted by
BCI, and has qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction in which the
character of the business transacted by it or properties owned or
leased by it requires such qualification except when the failure to so
qualify would not have a material adverse effect on BCI. BCI holds all
material licenses, certificates, franchises, and permits from all
governmental authorities necessary for the conduct of its business as
it is now conducted and as described in the Final Prospectus or as is
necessary for the performance of its obligations under any related
Sales Agreement or related Pooling and Servicing Agreement, and has
received no notice of proceedings relating to the revocation of any
such license, certificate or permit, that, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
affect materially and adversely the conduct of the business, results of
operations, net worth or condition (financial or otherwise) of BCI.
(ii) The execution of the Agreement, the related Sales
Agreement and the related Pooling and Servicing Agreement are within
the corporate power of BCI. This Agreement has been, and as of the
Closing Date the related Sales Agreement and the related Pooling and
Servicing Agreement will have been, duly and validly authorized,
executed and delivered by BCI, and assuming the valid authorization,
execution and delivery of each such agreement by the other parties
thereto, each of such agreements constitutes a legal, valid and binding
obligation of BCI, enforceable against BCI in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and to general
principles of equity, regardless of whether such enforcement is sought
in a proceeding in equity or at law, and except that the provisions
relating to indemnification of the Underwriters may be unenforceable as
against public policy.
(iii) BCI is not in violation of its articles of incorporation
or bylaws or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, deed of trust, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it or its
properties may be bound, which default might result in any material
adverse change in the financial condition, earnings, affairs or
business of BCI or which might materially and adversely affect the
properties or assets thereof or the ability to perform its obligations
under the Agreement, each related Sales Agreement, and the related
Pooling and Servicing Agreement.
(iv) Neither the execution and delivery by BCI of this
Agreement, any related Sales Agreement or the related Pooling and
-9-
Servicing Agreement, nor the consummation by BCI of any of the
transactions herein or therein contemplated, nor compliance by BCI with
the provisions hereof or thereof, will (A) conflict with or result in a
breach of, or constitute a default under, any of the provisions of the
articles of incorporation or bylaws of BCI or any law, governmental
rule or regulation or any judgment, decree or order binding on BCI or
any of its properties, or any of the provisions of any indenture,
mortgage, deed of trust, contract or other instrument to which BCI is a
party or by which it is bound, or (B) result in the creation of any
lien, charge, or encumbrance upon any of its properties pursuant to the
terms of any such indenture, mortgage, deed of trust, contract or other
instrument.
(v) There are no actions, suits or proceedings against, or
investigations of, BCI pending, or, to the knowledge of BCI,
threatened, before any court, administrative agency or other tribunal
(i) asserting the invalidity of the Agreement, the related Pooling and
Servicing Agreement or any related Sales Agreement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by the
Agreement or any related Sales Agreement or the related Pooling and
Servicing Agreement, (iii) which might materially and adversely affect
the business, operations, financial condition (including, if
applicable, on a consolidated basis), properties or assets of BCI,
performance by BCI of its obligations under, or the validity or
enforceability of, the Agreement, the related Pooling and Servicing
Agreement or any related Sales Agreement or (iv) seeking to affect
adversely the federal or state income tax attributes of the
Underwritten Certificates as described in the Final Prospectus.
(vi) No filing or registration with, notice to, qualification
of or with, or consent, approval, authorization or order or other
action of any person, corporation or other organization or of any
court, supervisory or governmental authority or agency is required for
the consummation by BCI of the transactions contemplated by this
Agreement or the related Pooling and Servicing Agreement except such as
have been, or will have been prior to the Closing Date, obtained under
the Act, or state securities laws or "Blue Sky" laws, or from the
National Association of Securities Dealers, Inc. in connection with the
purchase and distribution of the Underwritten Certificates by the
Underwriters, or any recordations of the assignment of the related
Mortgage Loans to the Trustee pursuant to the related Pooling and
Servicing Agreement that have not yet been completed.
(vii) At the time of execution of the related Sales Agreement,
BCI will own the Assets being transferred to the Company pursuant to
the related Sales Agreement, free and clear of any lien, adverse claim,
mortgage, charge, pledge or other encumbrance or security interest, and
will not have assigned to any other person any of its right, title or
interest in such Assets, and, upon the execution of the related Sales
Agreement, BCI will have transferred all its right, title and interest
in such Assets to the Company, provided that BCI will not be deemed to
be in breach of this representation and warranty to the extent that a
court of competent jurisdiction holds that at the time of the execution
of the related Sales Agreement BCI had a first priority perfected
-10-
security interest in such Assets or that BCI granted to the Company a
first priority perfected security interest in such Assets.
(viii) Under generally accepted accounting principles, BCI
will report its transfer of the Assets pursuant to its Sales Agreement
as a sale of its interest in such Assets. BCI has been advised by its
independent certified public accountants that they concur with such
treatment under generally accepted accounting principles and, if
applicable, regulatory accounting principles. BCI also will so report
the transfer in all financial statements and reports to the regulatory
and supervisory agencies and authorities to which it reports, if any.
For federal income tax purposes, BCI will treat the transfer of the
Assets pursuant to the related Sales Agreement as a sale of the
interest in the Assets represented by the Certificates of the related
Series not held by BCI and as an exchange of the remaining interest in
the Assets for any Certificates of such Series retained by BCI.
(ix) For the purposes of Section 9-103(3)(d) of the Uniform
Commercial Code as in effect in the State of New York, Schedule I
hereto sets forth the locations of BCI's offices for the filing of any
UCC-1 financing statements, and the offices of BCI where it keeps its
records concerning the Assets are also listed in said Schedule opposite
its name and there has been no other such location during the four
months preceding the Closing Date.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations, warranties and agreements set forth herein,
the Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the applicable
purchase prices set forth in the related Terms Agreement (plus accrued interest
as therein set forth), Underwritten Certificates representing the respective
aggregate approximate principal amounts, notional amounts or percentage
interests, as the case may be, of the various classes of Underwritten
Certificates set forth in the Terms Agreement or opposite such Underwriter's
name in an attachment to the Terms Agreement.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Certificates shall be made at the office, on the date and at the time specified
in the related Terms Agreement, which date and time may be postponed by
agreement between the Underwriters and the Company or as provided in Section 10
hereof (such date and time of delivery and payment for the Underwritten
Certificates being herein called the "Closing Date"). Delivery of the
Underwritten Certificates shall be made to the Underwriters against payment by
the Underwriters of the purchase price thereof to or upon the order of the
Company in the type of funds specified in the Terms Agreement. The Underwritten
Certificates shall be registered in such names and in such authorized
denominations as the Underwriters may request in writing not less than two full
business days in advance of the Closing Date.
The Company agrees to have the Underwritten Certificates available for
inspection, checking and packaging by the Underwriters in New York, New York (or
such other location within the continental United States agreed to by the
Underwriters and the Company), not later than 1:00 p.m. on the business day
prior to the Closing Date.
-11-
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Underwritten Certificates of such Series for
sale to the public as set forth in the related Final Prospectus.
5. Agreements. (a) Each of the Company and BCI, jointly and severally,
covenants and agrees with the several Underwriters that:
(i) Substantially contemporaneously with the execution of the
related Terms Agreement, the Company will prepare the supplement to the
Basic Prospectus setting forth the principal amount of Underwritten
Certificates covered thereby and the material terms thereof, the
initial public offering price of the Underwritten Certificates or the
manner of offering such Underwritten Certificates, the price at which
the Underwritten Certificates are to be purchased by the Underwriters
from the Company, the selling concessions and reallowance, if any, and
such other information as the Underwriters and the Company deem
appropriate in connection with the offering of such Underwritten
Certificates. The Company will not file any amendment or supplement to
the Registration Statement or the Final Prospectus relating to the
Underwritten Certificates unless the Company has furnished the
Underwriters a copy for their review prior to filing and will not file
any such proposed amendment or supplement to which the Underwriters
reasonably object. Subject to the foregoing sentence, the Company will
cause the Final Prospectus to be filed with the Commission pursuant to
Rule 424 under the Act and a report on Form 8-K will be filed with the
Commission within 15 days following the Closing setting forth specific
information concerning the Underwritten Certificates and the related
Assets and including, as an exhibit, a copy of the related Pooling and
Servicing Agreement. In addition, to the extent that any Underwriter
(i) has provided Collateral Term Sheets to the Company that such
Underwriter has provided to a prospective investor, the Company has
filed such Collateral Term Sheets as an Exhibit to Form 8-K within two
business days of its receipt thereof, (ii) has provided Structural Term
Sheets or Computational Materials to the Company that such Underwriter
has provided to a prospective investor, the Company will file or cause
to be filed with the Commission a report on Form 8-K containing such
Structural Term Sheets and Computational Materials, as soon as
reasonably practicable after the date of the Underwriting Agreement,
but in any event, not later than the date on which the Final Prospectus
is filed with the Commission pursuant to Rule 424 under the Act, or
(iii) has provided Series Term Sheets to the Company that such
Underwriter has provided to a prospective investor, the Company has
filed such Series Term Sheets as an Exhibit to Form 8-K within two
business days of its receipt thereof. The Company will promptly advise
the Underwriters (A) when the Final Prospectus shall have been filed
with the Commission pursuant to Rule 424 and the Form 8-K shall have
been filed with the Commission, (B) when any amendment to the
Registration Statement shall have become effective, (C) of any request
by the Commission for any amendment of the Registration Statement or
the Final Prospectus or for any additional information, (D) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose, and (E) of the receipt
by the Company of any notification with respect to the suspension of
-12-
the qualification of the Underwritten Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or suspension and, if issued, to obtain
the withdrawal thereof as soon as possible.
(ii) If, at any time when a prospectus relating to the
Underwritten Certificates is required to be delivered under the Act,
any event occurs as a result of which, in the opinion of counsel to the
Company or the Underwriters, the Final Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements made
therein, in the light of the circumstances under which they were made,
not misleading, or if it shall be necessary to amend or supplement the
Final Prospectus to comply with the Act or the rules and regulations
thereunder, the Company will promptly prepare and file with the
Commission, subject to paragraph (i) of this Section 5, an amendment or
supplement that will correct such statement or omission or an amendment
that will effect such compliance and, if such amendment or supplement
is required to be contained in a post-effective amendment of the
Registration Statement, will use its best efforts to cause such
amendment of the Registration Statement to be made effective as soon as
possible and will promptly file all reports and any definitive proxy or
information statements required to be filed by the Company pursuant to
Sections 13, 14 and 15 of the Exchange Act subsequent to the date of
the Prospectus for so long as the delivery of a Prospectus is required
in connection with the offering or sale of the Underwritten
Certificates.
(iii) The Company will furnish to counsel for the
Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and each amendment thereto which
shall become effective on or prior to the Closing Date, and to each
Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and each such amendment and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and the Final
Prospectus and any amendments thereof and supplements thereto as the
Underwriters may reasonably request.
(iv) The Company will apply the net proceeds from the sale of
the Underwritten Certificates in the manner set forth in the related
Final Prospectus.
(v) The Company or BCI will pay or cause to be paid all the
fees and disbursements of the Company's and BCI's counsel and of
independent accountants for the Company and BCI relating to legal
review, opinions of counsel for the Company and BCI, audits, review of
unaudited financial statements, cold comfort review or otherwise
(except for costs incurred pursuant to Section 5(b)(v)); the costs and
expenses of printing (or otherwise reproducing) and delivering the
Agreement, the related Pooling and Servicing Agreement, the
Underwritten Certificates and other related transaction documents
(including the printing and delivering of any such documents to the
Underwriters in such quantities as the Underwriters may reasonably
request); the initial fees, costs and expenses of or relating to the
Trustee under the related Pooling and Servicing Agreement and its
-13-
counsel; the initial fees, costs and expenses of or relating to any
custodian of the Contracts or Mortgage Loans under a custodial
agreement and such custodian's counsel; the costs and expenses incident
to the preparation, printing (including XXXXX costs), distribution and
filing of the Registration Statement (including exhibits thereto), the
Basic Prospectus, the Preliminary Final Prospectus and the Final
Prospectus, and all amendments of and supplements to the foregoing, any
Form 8-Ks relating to any Collateral Term Sheets, Structural Term
Sheets, Computational Materials or Series Term Sheets, and of the
Underwritten Certificates; the fees of The Depository Trust Company or
any successor Clearing Agency, in connection with the book-entry
registration of the Book-Entry Certificates; the reasonable expenses of
the Underwriters, including the reasonable fees and disbursements of
its counsel, in connection with the initial qualification of the
Underwritten Certificates for sale in the jurisdictions that the
Underwriters may designate pursuant to subsection (vi) below and in
connection with the preparation of any blue sky survey and legal
investment survey; and the fees of rating agencies. Except as provided
in Section 7 hereof, the Underwriters shall be responsible for paying
all costs and expenses incurred by them in connection with their
purchase and sale of the Underwritten Certificates.
(vi) The Company will arrange for the qualification of the
Underwritten Certificates for sale under the laws of such jurisdictions
as the Underwriters may designate in the Terms Agreement, will maintain
such qualifications in effect so long as required for the distribution
of the Underwritten Certificates and will arrange for the determination
of the legality of the Underwritten Certificates for purchase by
investors; provided, however, that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
(vii) So long as any Underwritten Certificates are
outstanding, the Company will cause the related Servicer or Trustee to
furnish to each Underwriter, as soon as available, a copy of (A) the
annual statement of compliance delivered by the Servicer to the Trustee
under the related Pooling and Servicing Agreement, (B) the annual
independent public accountants' servicing report furnished to the
Trustee pursuant to the related Pooling and Servicing Agreement, (C)
each report, statement or other document regarding the Underwritten
Certificates filed with the Commission under the Exchange Act or mailed
to the holders of the Underwritten Certificates, pursuant to the
related Pooling and Servicing Agreement or otherwise, (D) any reports
provided by certified public accountants pursuant to the related
Pooling and Servicing Agreement regarding the reports, statements or
other documents included in clause (C) above, and (E) from time to
time, such other information concerning the Underwritten Certificates
as any Underwriter may reasonably request and which may be furnished by
the Company or the Servicer without undue expense.
(viii) On or before the Closing Date, the Company and BCI
shall cause each of their respective books and records (including any
computer records) relating to the Contracts and Mortgage Loans to be
-14-
marked to show the Trust's absolute ownership of the Assets, and from
and after the Closing Date neither the Company nor BCI, as Servicer,
shall take any action inconsistent with the Trust's ownership of such
Assets, other than as permitted by the related Pooling and Servicing
Agreement.
(ix) To the extent, if any, that the ratings provided with
respect to the Underwritten Certificates by any Rating Agency are
conditional upon the furnishing of documents or the taking of any other
actions by the Company or BCI, the Company or BCI, as the case may be,
shall furnish any such documents and take any such other actions as may
be required to satisfy such conditions. A copy of each such document
shall be provided to the Underwriters at the time it is delivered to
the Rating Agencies.
(x) Without the consent of the Underwriters, the Company will
not waive any of the conditions to its obligations to purchase the
Assets pursuant to the related Sales Agreement.
(xi) If a REMIC election is to be made with respect to some or
all of the related Assets ("REMIC Assets"), the Company will make or
cause to be made all filings necessary to establish and maintain the
status of such REMIC Assets as a REMIC.
(b) Each Underwriter represents, warrants, covenants and agrees with
the Company and BCI that:
(i) It either (A) has not provided any potential investor with
a Collateral Term Sheet (that is required to be filed with the
Commission within two business days of first use under the terms of the
Public Securities Association Letter as described below), or (B) has,
prior to its first delivery of such Collateral Term Sheet to a
potential investor, delivered such Collateral Term Sheet (in hard copy)
to the Company or its counsel and received any consent required by the
related Terms Agreement and has substantially contemporaneously with
its first delivery of such Collateral Term Sheet to a potential
investor, delivered such Collateral Term Sheet (in XXXXX format) to the
Company or its counsel, which Collateral Term Sheet, if any, is
attached to the related Terms Agreement as Exhibit A.
(ii) It either (A) has not provided any potential investor
with a Structural Term Sheet, Series Term Sheets or Computational
Materials, or (B) has, prior to its first delivery of any such
Structural Term Sheet, Series Term Sheets or Computational Materials to
a potential investor, delivered such Structural Term Sheet, Series Term
Sheets or Computational Materials (in hard copy) to the Company or its
counsel and received any consent required by the related Terms
Agreement and has promptly provided any such Structural Term Sheet,
Series Term Sheets or Computational Materials (in XXXXX format) to the
Company or its counsel, which Structural Term Sheet, Series Term Sheets
and Computational Materials, if any, are attached to the related Terms
Agreement as Exhibit B.
(iii) Each Collateral Term Sheet bears a legend indicating
that the information contained therein will be superseded by the
-15-
description of the collateral contained in the Prospectus Supplement
and, except in the case of the initial Collateral Term Sheet, that such
information supersedes the information in all prior Collateral Term
Sheets.
(iv) Each Structural Term Sheet, Series Term Sheet and all
Computational Materials bear a legend substantially as follows (or in
such other form as may be agreed prior to the date of the Underwriting
Agreement):
This information does not constitute either an offer to sell
or a solicitation of an offer to buy any of the securities
referred to herein. Information contained herein is
confidential and provided for information only, does not
purport to be complete and should not be relied upon in
connection with any decision to purchase the securities. This
information supersedes any prior versions hereof and will be
deemed to be superseded by any subsequent versions including,
with respect to any description of the securities or the
underlying assets, the information contained in the final
Prospectus and accompanying Prospectus Supplement. Offers to
sell and solicitations of offers to buy the securities are
made only by the final Prospectus and the related Prospectus
Supplement.
(v) It (at its own expense) agrees to obtain and provide to
the Company one or more accountants' letters in form and substance
reasonably satisfactory to the Underwriter and the Company relating to
the Collateral Term Sheets, Structural Term Sheets, Series Term Sheets
and Computational Materials, which accountants' letters shall be
addressed to the Company.
(vi) It has not, and will not, without the prior written
consent of the Company, provide any Collateral Term Sheets, Structural
Term Sheets, Series Term Sheets or Computational Materials to any
investor after the date of the Agreement, other than as set forth in
Exhibit A or Exhibit B attached to the related Terms Agreement.
For purposes of this Agreement, Series Term Sheets, Collateral
Term Sheets and Structural Term Sheets shall have the respective
meanings assigned to them (a) in the case of Series Term Sheets, in the
no-action letter addressed to Greenwood Trust Company, Discover Card
Master Trust I dated April 5, 1996, and (b) in the case of Collateral
Term Sheets and Structural Term Sheets, in the February 13, 1995 letter
of Cleary, Gottlieb, Xxxxx & Xxxxxxxx on behalf of the Public
Securities Association (which letter, and the SEC staff's response
thereto, are publicly available February 17, 1995). The term
"Collateral Term Sheet" as used herein includes any subsequent
Collateral Term Sheet that reflects a substantive change in the
information presented. Computational Materials has the meaning assigned
to it in the no-action letter dated May 20, 1994 issued by the Division
of Corporation Finance of the Commission to Xxxxxx, Peabody Acceptance
Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated, and Xxxxxx
Structured Asset Corporation, the no-action letter dated May 27, 1994
-16-
issued by the Division of Corporation Finance of the Commission to the
Public Securities Association and the no-action letter of February 17,
1995 issued by the Commission to the Public Securities Association.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters hereunder to purchase the Underwritten Certificates of any
Series to which this Agreement applies shall be subject to the following
conditions:
(a) To the accuracy on the date hereof and on the Closing Date (as if
made on such Closing Date), and as of the date of the effectiveness of any
amendment to the Registration Statement filed prior to the Closing Date, of the
representations and warranties on the part of the Company and BCI contained
herein and to the extent that this Agreement provides that the Company and BCI
are not making certain representations and warranties, to the accuracy of the
representations and warranties provided by the parties making such
representations and warranties as of the date thereof and on the Closing Date
(as if made on such Closing Date) and as of the date of the effectiveness of any
amendment to the Registration Statement filed prior to the Closing Date.
(b) On the Closing Date, the representations and warranties made by
each of the Company and BCI in the related Sales Agreement and the related
Pooling and Servicing Agreement will be true and correct in all material
respects.
(c) The Registration Statement shall have become effective and no stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and not withdrawn and no proceedings
for that purpose shall have been instituted or threatened; and the Final
Prospectus shall have been filed or mailed for filing with the Commission in
accordance with Rule 424 under the Act, and all actions required to be taken and
all filings required to be made by the Company under the Act prior to the sale
of the Underwritten Certificates shall have been duly taken or made.
(d) Certificates.
(i) The Company shall have delivered to the Underwriters a
certificate of the Company, signed by the President or any Vice
President or Assistant Vice President of the Company and dated the
Closing Date, to the effect that the signer of such certificate has
carefully examined the Registration Statement, the Final Prospectus,
the Agreement, the related Sales Agreement and the related Pooling and
Servicing Agreement and that: (A) the representations and warranties of
the Company in the Agreement, the related Sales Agreement and the
related Pooling and Servicing Agreement are true and correct in all
material respects at and as of the Closing Date with the same effect as
if made on the Closing Date; (B) the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date; (C) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to
the Company's knowledge, threatened; and (D) nothing has come to such
Officer's attention that would lead him or her to believe that the
Final Prospectus contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the
-17-
statements, in the light of the circumstances under which they were
made, not misleading; and (E) there has been no material adverse change
or development involving a prospective material adverse change in the
business, operations, financial condition, properties or assets of the
Company.
(ii) BCI shall have delivered to the Underwriters a
certificate of BCI, signed by the President or any Vice President or
Assistant Vice President of BCI and dated the Closing Date, to the
effect that the signer of such certificate has carefully examined the
Agreement, the related Sales Agreement and the related Pooling and
Servicing Agreement and that: (A) the representations and warranties of
BCI in the Agreement, the related Sales Agreement and the related
Pooling and Servicing Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made
on the Closing Date; (B) there has been no material adverse change or
development involving a prospective material adverse change in the
business, operations, financial condition, properties or assets of BCI;
and (C) BCI has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date.
(e) Opinions.
(i) The Underwriters shall have received from Xxxxxx, Xxxxx &
Bockius LLP, Downs Xxxxxxx & Xxxxxx, P.C. and such other counsel
reasonably acceptable to the Underwriters opinions of counsel, each
dated the Closing Date and satisfactory in form and substance to
counsel for the Underwriters, as to (A) various matters relating, among
other things, to the corporate status and authorization of the Company
and BCI, substantially in the form of Exhibit B-1 hereto; (B) various
matters relating to the lien of the trustee in the assets,
substantially in the form of Exhibit B-2 hereto; and (C) the applicable
federal income tax treatment of the Certificates.
(ii) The Underwriters shall have received one or more opinions
from local counsel reasonably acceptable to the Underwriters, each
dated the Closing Date satisfactory in form and substance to counsel
for the Underwriters, with respect to the Trustee's first priority
perfected interest in the Manufactured Homes located in those states
where 10% or more of the principal balance of the Contracts and/or
Mortgage Loans are located as of the Cut-off Date.
(iii) The Underwriters shall have received copies of any
opinions of counsel furnished to the Rating Agencies, together with a
letter addressed to the Underwriters to the effect that each
Underwriter may rely on each such opinion to the same extent as though
such opinion was addressed to each Underwriter as of its date,
including any opinions with respect to the non-consolidation of the
Company with its affiliates and the "true sale" of the Assets, or, in
the absence of such true sale, that the Trustee has a perfected
security interest in the Assets, subject to no prior liens or
encumbrances.
(iv) The Underwriters shall have received from reputable
counsel an opinion or opinions of counsel dated the Closing Date and
satisfactory in form and substance to counsel for the Underwriters, as
to the income tax treatment of the Certificates in those states
-18-
specified in the Terms Agreement.
(v) The Underwriters shall have received from counsel for the
Underwriters such opinion or opinions, dated the Closing Date, with
respect to the validity of the Certificates and other related matters
as the Underwriters may reasonably require, and the Company and BCI
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(vi) The Company shall have furnished to the Underwriters the
opinions of counsel to each Seller, dated the Closing Date and
satisfactory in form and substance to counsel for the Underwriter, as
to the due authorization, execution and delivery of each of the related
Sales Agreements by the related Seller and its enforceability against
the related Seller.
(vii) The Company shall have furnished to the Underwriters the
opinions of counsel to the Trustee, dated the Closing Date and
satisfactory in form and substance to counsel for the Underwriters, as
to the due authorization, execution and delivery of the Pooling and
Servicing Agreement by the Trustee.
(viii) The Company shall have furnished to the Underwriters
the opinions of counsel to any Insurer or any monoline insurance
company guaranteeing any or all of the payments with respect to one or
more Classes of Certificates, dated the Closing Date and satisfactory
in form and substance to counsel for the Underwriters, as to the due
issuance and enforceability of the policies issued by such Insurer or
such monoline insurance company and covering such other matters as
reasonably requested by the Underwriters.
(f) The Underwritten Certificates shall have been assigned the ratings
set forth in the Terms Agreement, which shall be in one of the four highest
rating categories, by one or more "nationally recognized statistical rating
organizations," as that term is defined by the Commission from time to time,
designated in the Terms Agreement. On the Closing Date, (i) such rating or
ratings shall not have been rescinded and there shall not have been any
downgrading, or public notification of a possible downgrading or public notice
of a possible change, without indication of direction, and (ii) no downgrading,
or public notification of a possible downgrading or public notification of a
possible change, without indication of direction, shall have occurred in the
rating accorded any of the debt securities of any person providing any form of
credit enhancement for the Certificates by any "nationally recognized
statistical rating organization."
(g) The Underwriters shall have received from Ernst & Young LLP,
certified public accountants, two letters, (i) one dated the date of the related
Terms Agreement and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters to the effect that they have performed certain
specified procedures as a result of which they have determined that the Assets
listed in Schedule I to each related Sales Agreement conform with the
description thereof in the Prospectus Supplement under "The Asset Pool" and that
a sampling of the Contract Files relating to the Contracts and of the Trustee
Mortgage Loan Files relating to the Mortgage Loans conforms with the information
contained on the contract and mortgage loan data file tape upon which the
-19-
information in the Prospectus Supplement under the caption "The Asset Pool" was
based; and (ii) the other letter dated the Closing Date and satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, reconfirming
or updating the letter dated the date hereof; to the further effect that they
have performed certain procedures as a result of which they have determined that
the Assets listed in Schedule I to the related Pooling and Servicing Agreement
(A) conform with the description thereof in the Prospectus Supplement under the
caption "The Asset Pool" or (B) conform with the information, if any, set forth
in the Company's report on Form 8-K with respect to such Assets; and covering
such other matters relating to the Trust as the Underwriters may reasonably
request.
(h) The Underwriters shall have received from the certified public
accountants of each Seller or Servicer, as applicable, a letter or letters dated
the date hereof and satisfactory in form and substance to the Underwriters and
counsel to the Underwriters to the effect that they have performed certain
specified procedures as a result of which they determined that certain
information of an accounting, financial and statistical nature set forth in the
Final Prospectus under the caption "Servicing of the Contracts" (or other
caption relating to the Servicer's servicing activities) agrees with the records
of the Servicer.
(i) If applicable, and subject to the conditions set forth in the
related Pooling and Servicing Agreement, any reserve fund to be established for
the benefit of the holders of any related Certificates shall have been
established by the Company with the Trustee and any initial deposit required to
be made therein shall have been delivered to the Trustee for deposit therein as
contemplated by the related Pooling and Servicing Agreement.
(j) The Underwriters shall have received evidence satisfactory to it
and counsel for the Underwriters that, on or before the Closing Date, UCC-1
financing statements shall have been (or, on the Closing Date, will be)
submitted for filing in the appropriate filing offices reflecting the transfer
of the interest in the Contracts and the proceeds thereof to the Trustee, on
behalf of the Trust.
(k) On the Closing Date, there shall not have occurred any change, or
any development involving a prospective change, in or affecting the business or
properties of the Company or BCI since the date of the Terms Agreement which the
Underwriters conclude in the reasonable judgment of the Underwriters materially
impairs the investment quality of the Underwritten Certificates so as to make it
impractical or inadvisable to proceed with the public offering or the delivery
of the Underwritten Certificates as contemplated by the Final Prospectus.
(l) All proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto shall be satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, and the
Underwriters and counsel for the Underwriters shall have received such
information, certificates and documents as they may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein or
if any of the opinions and certificates mentioned above or elsewhere in this
-20-
Agreement shall not be reasonably satisfactory in all material respects and in
form and substance reasonably satisfactory to the Underwriters and counsel for
the Underwriters, the Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of any such cancellation shall be given to the Company in
writing, or by telephone or telegraph and confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If for any reason, other
than a default by the Underwriters pursuant to Section 9 hereof, the sale of the
Underwritten Certificates provided for herein is not consummated, the Company
and BCI jointly and severally agree to reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by them in
connection with their investigation, the preparation to market and the marketing
of the Underwritten Certificates, or in contemplation of the performance by them
of their obligations hereunder.
8. Indemnification and Contribution. (a) The Company and BCI, jointly
and severally, indemnify and hold harmless each Underwriter, each Underwriter's
respective officers and directors and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, as follows:
(i) against any and all losses, claims, expenses, damages or
liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, the Final Prospectus, or any amendment or
supplement thereto, or any related Preliminary Final Prospectus, or
arise out of, or are based upon, the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements made therein not misleading; and will
reimburse each Underwriter and each such controlling person for any
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that (A) the Company and BCI will not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
omission, or alleged untrue statement or omission, made in any of such
documents (x) in reliance upon and in conformity with any Underwriters'
Information or (y) in any Collateral Term Sheet, Structural Term Sheet,
Series Term Sheet or Computational Materials, except in the case of
this clause (y) to the extent that any untrue statement or alleged
untrue statement therein results (or is alleged to have resulted) from
an error or material omission in the information concerning the
characteristics of the Assets furnished by the Company to the
Underwriters for use in the preparation of any Collateral Term Sheet,
Structural Term Sheet, Series Term Sheet and/or Computational Materials
(any such information, the "Asset Pool Information"), which error was
not superseded or corrected by the delivery to the Underwriters of
corrected written or electronic information, or for which the Company
-21-
provided written notice of such error to the Underwriters prior to the
confirmation of the sale of the applicable Certificates (any such
uncorrected Asset Pool Information an "Asset Pool Error"); and (B) such
indemnity with respect to any Preliminary Final Prospectus shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim,
damage or liability purchased the Underwritten Certificates which are
the subject thereof if such person did not receive a copy of the Final
Prospectus (or the Final Prospectus as amended or supplemented,
excluding any documents incorporated therein by reference) at or prior
to the confirmation of the sale of such Underwritten Certificates to
such person in any case where such delivery is required by the Act and
the untrue statement or omission of a material fact contained in such
Preliminary Final Prospectus was corrected in the Final Prospectus (or
the Final Prospectus as amended or supplemented, excluding any
documents incorporated therein by reference). "Underwriters'
Information" shall have the meaning assigned to such term in the
related Terms Agreement;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by any such Underwriter),
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under clause (i) or clause (ii) above.
This indemnity agreement will be in addition to any liability which the Company
or BCI may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
have signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 the Act or Section 20 the Exchange Act,
against any and all losses, claims, expenses, damages or liabilities to which
the Company or any such director, officer or controlling person may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Final Prospectus or any amendment or supplement
thereto, or any related Preliminary Final Prospectus, or arise out of, or are
based upon, the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements made
therein not misleading, in each case to the extent, but only to the extent, that
-22-
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with any Underwriters'
Information; and will reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer or controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action. This indemnity agreement will be in addition to any liability which such
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action described therein, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability that it may have to any indemnified
party otherwise than under this Agreement. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may wish to do so, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party under this
Section 8, such indemnifying party shall not be liable for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and in respect of which
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering
of the Underwritten 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 the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault 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 the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
-23-
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to above in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Underwritten Certificates underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Underwritten Certificates of any Class
agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions which
the portion of the Underwritten Certificates of such Class set forth opposite
their names in the Terms Agreement or in an attachment to the Terms Agreement
bears to the aggregate amount of Underwritten Certificates of such Class set
forth opposite the names of the remaining Underwriters) the Underwritten
Certificates of such Class which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
amount of Underwritten Certificates of such Class which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Underwritten Certificates of such Class as set forth in
the Final Prospectus, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Underwritten Certificates of such Class, and if such non-defaulting Underwriters
do not purchase all the Underwritten Certificates of such Class, this Agreement
will terminate without liability to any non-defaulting Underwriter or the
Company. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 9. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Company prior to
delivery of and payment for all Underwritten Certificates if prior to such time
(i) trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the over-the-counter market shall have been suspended or
limited, or minimum approximate prices shall have been established on any such
Exchange or market; (ii) a banking moratorium shall have been declared by either
federal or New York State authorities; (iii) there shall have occurred any
outbreak or escalation of hostilities or other calamity or crisis, the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Underwriters, impracticable or inadvisable to market the
Underwritten Certificates; or (iv) there has been, since the date of the Terms
-24-
Agreement or since the respective dates as of which information is given in the
Registration Statement or the Final Prospectus any change in, or any development
involving a prospective change in, or affecting, the condition, financial or
otherwise, earnings, affairs or business of the Company, BCI or Bombardier Inc.
whether arising in the ordinary course of business or otherwise, which in the
reasonable judgment of the Underwriters would materially impair the market for,
or the investment quality of, the Underwritten Certificates.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company and BCI or their respective officers and the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or BCI or any of the officers, directors or controlling persons referred
to in Section 8 hereof, and will survive delivery of and payment for the
Underwritten Certificates. The provisions of this Section 11 and Sections
5(a)(v), 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to it at the office or offices set forth
in the Terms Agreement; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx
00000, Attention: President; or, if sent to BCI, will be mailed, delivered or
telegraphed and confirmed to it at 00000 Xxxx Xxx Xxxxxxx Xxxx, Xxxxx 0000,
Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxx Xxxxxx.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the jurisdiction as may be specified in the Terms
Agreement. The Terms Agreement may be executed in any number of counterparts,
each of which shall for all purposes be deemed to be an original and all of
which shall together constitute but one and the same instrument.
15. Miscellaneous. Time shall be of the essence of this Agreement. This
Agreement supersedes all prior or contemporaneous agreements and understandings
relating to the subject matter hereof. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
-25-
SCHEDULE I
Locations of Offices
Bombardier Capital Mortgage Securitization 0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxxx Xxxxxxxxxx, Xxxxxxx 00000
00000 Xxxx Xxx Xxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Bombardier Capital Inc. 0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
12735 Xxxx Xxx Xxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Locations of Records
Bombardier Capital Mortgage Securitization 12735 Gran Bay Parkway West
Corporation Suite 1000
Xxxxxxxxxxxx, Xxxxxxx 00000
Bombardier Capital Inc. 00000 Xxxx Xxx Xxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
I-26
Exhibit A
Bombardier Capital Mortgage Securitization Corporation
Pass-Through Certificates
FORM OF TERMS AGREEMENT
Dated: __________, 199__
To: Bombardier Capital Mortgage Securitization Corporation (the "Company")
Bombardier Capital Inc. ("BCI")
Re: Underwriting Agreement Standard Provisions dated
July 1998 (the "Standard Provisions")
Series
Designation: Pass-Through Certificates, Series 199___-___, Classes _____
__________ (collectively, the "Certificates"). The Classes
__________ Certificates are collectively referred to herein as
the "Underwritten Certificates."
Underwriting Agreement: Subject to the terms and conditions set forth
herein and to the terms of the Standard Provisions, which are incorporated by
reference herein, the Company hereby agrees to issue and sell to __________ (the
"Underwriter"), and the Underwriter hereby agrees to purchase from the Company,
on __________, 199___, the Underwritten Securities at the purchase price and on
the terms set forth below; provided, however, that the obligations of the
Underwriter are subject to: (i) receipt by the Company of the ratings on the
Certificates as set forth herein, (ii) receipt by the Underwriter of the Sales
Agreement (the "Sales Agreement"), dated as of ____________, 199__, by and
between the Company and BCI, and the Pooling and Servicing Agreement (as defined
below), each being in form and substance satisfactory to the Underwriter.
The Certificates will be issued by BCMSC Securitization Trust
199___-___ pursuant to a Pooling and Servicing Agreement, to be dated as of
__________,199___ among the Company, BCI, as servicer (the "Servicer") and
__________, as Trustee (the "Trustee"), which incorporates by reference the
Company's Standard Terms to Pooling and Servicing Agreement (July 1998 Edition)
(collectively, the "Pooling and Servicing Agreement"). The Certificates will
represent in the aggregate the entire beneficial ownership interest in the
assets of the Trust which will consist primarily of retail installment sales
contracts [and/or] installment sales agreements secured by units of manufactured
housing ("Manufactured Homes") [and] contracts secured by liens on the real
estate on which the related Manufactured Homes are located (collectively, the
"Contracts") with original terms to maturity not exceeding 30 years [and/or]
one- to four-family, fully amortizing, [fixed] [adjustable] rate, first-lien
residential mortgage loans (the "Mortgage Loans" and, together with the
Contracts, the "Assets") with original terms to maturity not exceeding 30 years,
in each case having the characteristics described in the Prospectus Supplement.
A-27
The Company and the Servicer specifically covenant to make available on
the Closing Date for sale, transfer and assignment to the Trust, Contracts and
Mortgage Loans having the characteristics described in the Prospectus
Supplement; provided, however, that there may be nonmaterial variances from the
description of the Contracts and Mortgage Loans in the Prospectus Supplement and
the Contracts and Mortgage Loans actually delivered on the Closing Date.
Registration Statement: References in the Standard Provisions to the
Registration Statement shall be deemed to include registration statement No.
333-40113.
Initial Aggregate Schedule Principal Balance of Assets: Approximately
$__________.
Cut-off Date: ________________, 199__.
Terms of the Underwritten Certificates:
----------------------------------------------------------------------------------------------------------------------
Initial
Principal Purchase
Class Balance Pass-Through Price
Designation (approximate)(1) Rate Rating
----------------------------------------------------------------------------------------------------------------------
[Specify Rating
Agency and Rating]
----------------------------------------------------------------------------------------------------------------------
[(1) Subject to a permitted variance of plus or minus 5% depending on the
Contracts and Mortgage Loans actually acquired by the Trust.]
Subordination Features: Losses and Shortfalls on the Contracts and
Mortgage Loans will be allocated among the Certificates as described in the
Prospectus Supplement. [Except as otherwise specified in the Prospectus
Supplement, the Class ___Certificates are subordinated to the rights of the
Class ___ Certificates for purposes of the allocation of Realized Losses on the
Contracts and Mortgage Loans, as described in the Prospectus Supplement.]
Reserve Funds:
Distribution Dates: Each Distribution Date shall be the [____] day of
each month, or if such day is not a business day, on the next succeeding
business day, commencing in __________ 199__.
[Remic Election: An election will be made to treat some or all of the
assets of the Trust as a real estate mortgage investment conduit for federal
income tax purposes (the "REMIC"). The Classes __________ Certificates will be
designated as "regular interests" in the REMIC and the Class R Certificates will
be designated as the "residual interest" in the REMIC.]
Purchase Price: The Underwriter has agreed to purchase the Underwritten
Certificates from the Company for a purchase price of __________ % of the
initial aggregate principal amount thereof, plus accrued interest thereon from
A-28
__________, 199___. Payment of the purchase price for the Underwritten
Certificates shall be made to the Company in federal or similar immediately
available funds payable to the order of the Company.
Denominations: The Underwritten Certificates will be issued in
[book-entry] [certificated, fully-registered] form in minimum denominations of
$__________ and integral multiples of $__________ in excess thereof, except that
one Certificate of each Class of the Underwritten Certificates may be issued in
a different denomination.
Fees: It is understood that servicing fees will be withheld from the
payments on the Assets in each month prior to distributions on the Certificates
on the Distribution Date occurring in such month.
Closing Date And Location: 10:00 a.m. Eastern Time on __________,199__,
at the offices of Xxxxxx, Xxxxx & Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000. [The Company will deliver the Underwritten Certificates in
certificated, fully-registered form at the offices of the Underwriter in
__________, __________ on __________, 199__]. [The Company will deliver the
Underwritten Securities in book-entry form only, through the same-day funds
settlement system of The Depository Trust Company on the Closing Date.]
Non-SMMEA Classes: The Class __________ Certificates are not "mortgage
related securities" for purposes of the Secondary Mortgage Market Enhancement
Act of 1984 ("SMMEA") because such Class(es) of Certificates are not rated in
one of the two highest rating categories by a nationally recognized rating
agency.
Additional Conditions:
Due Diligence: At any time prior to the Closing Date, the Underwriter
has the right to inspect the Contract Files and Trustee Mortgage Loan Files, the
related manufactured homes [and] mortgaged properties and the related loan
origination procedures to ensure conformity with the Final Prospectus and the
Prospectus Supplement.
Controlling Agreement: This Terms Agreement sets forth the complete
agreement among the Company, BCI and the Underwriter and fully supersedes all
prior agreements, both written and oral, relating to the issuance of the
Underwritten Certificates and all matters set forth herein. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Standard Provisions.
Series Term Sheets, Collateral Term Sheets, Structural Term Sheets and
Computational Materials: The Underwriter hereby represents and warrants that (i)
information provided by it and attached hereto as Exhibit A constitutes all
"Collateral Term Sheets" disseminated by it in connection with the Underwritten
Certificates and (ii) information provided by it and attached hereto as Exhibit
B constitutes all "Structural Term Sheets", "Computational Materials" and
"Series Term Sheets" disseminated by it in connection with the Underwritten
Certificates. [Any Additional Terms.]
A-29
Underwriters' Information: It is understood and agreed that the
information set forth under the heading "Underwriting" in the Prospectus
Supplement, and the sentence regarding the Underwriter's intention to establish
a market in the Underwritten Certificates on the Cover Page of the Prospectus
Supplement, is the only information furnished by the Underwriter for inclusion
in the Registration Statement and the Final Prospectus.
Trustee: __________ will act as Trustee of the Trust.
[Custodian:]
Blue Sky Qualifications:
State Tax Opinions: The Company shall deliver to the Underwriters an
opinion of counsel pursuant to Section 6(e)(iv) of the Standard Provisions with
respect to [the State of Vermont and the State of Florida].
Blackout Period: [None.]
Applicable Law: THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF [NEW YORK] WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
Notices: All communications hereunder will be in writing and effective
only upon receipt and, if sent to the Underwriter, will be mailed, delivered or
telegraphed and confirmed to the Underwriter at ____________________, Attention:
_________________.
Request for Opinions: (a) The Company and BCI hereby request and
authorize Xxxxxx, Xxxxx & Bockius LLP, as their counsel in this transaction, to
issue on behalf of the Company and BCI, such legal opinions to the Underwriter,
its counsel, the Trustee and the Rating Agencies as may be required by any and
all documents, certificates or agreements executed in connection with this
Agreement.
(b) The Underwriter hereby requests and authorizes __________, as its
special counsel in this transaction, to issue to the Underwriter such legal
opinions, as they may require, and the Company and BCI shall have furnished to
_________ such documents as they may request for the purpose of enabling them to
pass upon such matters.
The Underwriter agrees, subject to the terms and provisions of the
Standard Provisions, a copy of which is attached hereto, and which is
incorporated by reference herein in its entirety and made a part hereof to the
same extent as if such provisions had been set forth in full herein, to purchase
the Underwritten Certificates.
[NAME OF UNDERWRITER]
By:
A-30
Name:
Title:
Accepted and Acknowledged
As of the Date First
Above Written:
BOMBARDIER CAPITAL MORTGAGE SECURITIZATION CORPORATION
By:
Name:
Title:
By:
Name:
Title:
BOMBARDIER CAPITAL INC.
By:
Name:
Title:
By:
Name:
Title:
X-00
Xxxxxxx X-0
____________, 199_
[Name and Address
of Underwriter(s)]
Bombardier Capital Mortgage Securitization Corporation
Pass-Through Certificates, Series
Ladies and Gentlemen:
We have acted as special counsel to Bombardier Capital Mortgage
Securitization Corporation, a Vermont corporation ("BCMSC"), in connection with
the formation by it of BCMSC Securitization Trust 199_-_ (the "Trust"), which
consists primarily of a pool of retail installment sales contracts [and/or]
installment sales agreements secured by units of manufactured housing
("Manufactured Homes"), [and] contracts secured by liens on the real estate on
which the related Manufactured Homes are located (collectively, the "Contracts")
[and/or] mortgage loans (the "Mortgage Loans" and, together with the Contracts,
the "Assets") secured by first liens on the real estate to which the related
Manufactured Homes are deemed permanently affixed (the "Mortgaged Properties").
The Trust was organized pursuant to a Pooling and Servicing Agreement
(the "Series Agreement"), dated as of ____________ 1, 199_, by and among BCMSC,
Bombardier Capital Inc. ("BCI") in its capacity as servicer of the Assets (the
"Servicer"), and __________, as trustee (the "Trustee"), which incorporates by
reference BCMSC's Standard Terms to Pooling and Servicing Agreement (July 1998
Edition) (together with the Series Agreement, the "Pooling and Servicing
Agreement"). We also have acted as special counsel to BCI in connection with its
role as Servicer for the Trust and to BCI (the "Seller"), as seller of the
Assets to BCMSC. Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
The Trust is issuing today __________ Classes of certificates
(collectively, the "Certificates"), which Classes are described in the Pooling
and Servicing Agreement. The Classes ___ Certificates (collectively, the
"Offered Certificates") are being sold to you today pursuant to a terms
agreement, dated as of _______________, 199_, among BCMSC, BCI and each of you
(the "Terms Agreement"). This opinion is furnished to you in accordance with
Section 6(e) (i) of BCMSC's Underwriting Agreement Standard Provisions, July
1998 (the "Standard Provisions" ), the terms of which are incorporated by
reference into the Terms Agreement (the Terms Agreement together with the
Standard Provisions being referred to herein collectively as the "Underwriting
Agreement").
In rendering the opinions expressed below, we have made such legal and
factual examinations and inquiries as we have deemed necessary or advisable for
the purpose of rendering this opinion, including but not limited to the
examination of the following:
a. BCMSC's registration statement on Form S-3 (No.
333-__________), as amended (the "Registration Statement"), filed under
the Securities Act of 1933, as amended (the "Act"), and the Prospectus,
dated _____________, 199_ (the "Base Prospectus"), and the Prospectus
Supplement, dated __________, 199_ (the "Prospectus Supplement," and
collectively with the Base Prospectus, the "Prospectus"), all relating
to the Offered Certificates;
b. The Pooling and Servicing Agreement;
c. The form of the Certificate evidencing each Class of the
Certificates;
d. The sales agreement, dated as of ____________ 1, 199_ (the
"Sales Agreement"), between the Seller and BCMSC pursuant to which
BCMSC acquired the Assets;
e. The Underwriting Agreement (together with the Sales
Agreement and the Pooling and Servicing Agreement, the "Agreements");
f. The Articles of Incorporation, as amended, and Bylaws of
each of BCMSC and BCI, together with a certificate of existence from
the State of Vermont and the State of Massachusetts with respect to
BCMSC and BCI, respectively; and
g. Resolutions of each of BCMSC and BCI pertaining to the
subject transactions, each certified by an officer of BCMSC and BCI, as
appropriate.
In rendering the opinions expressed below, we have assumed (i) the
authenticity of all documents submitted to us as originals, (ii) the conformity
to the originals of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such copies, (iii) the
genuineness of signatures not witnessed by us, (iv) the legal capacity of
natural persons and (v) the due authorization, execution and delivery of all
documents by all parties thereto and the validity and binding effect thereof
(other than the authorization, execution and delivery of documents by BCMSC and
BCI, and the validity and binding effect thereof upon BCMSC and BCI, to the
extent we express our opinion on such subjects below).
In addition, we have relied, as to factual matters, upon
representations included in the Agreements and other agreements and documents
delivered at the closing, and upon certificates of officers of BCMSC, BCI and
the Trustee, and upon certificates of public officials. Whenever the phrase "to
our knowledge" or "known to us" is used in this opinion letter, it refers to the
actual knowledge of the attorneys of this firm involved in the representation of
BCMSC and BCI in connection with the transactions described herein without
independent investigation.
The obligations of the parties with respect to the Agreements are
subject, with respect to their enforceability, to the provisions of federal and
other applicable bankruptcy, insolvency, reorganization, moratorium and similar
laws relating to or affecting the enforcement of creditors' rights generally,
B-33
now or hereafter in effect. Such obligations also are subject to usual equity
principles, which may limit enforcement under state law of certain remedies, but
which do not affect the validity of such documents.
We do not purport to express an opinion on any laws other than those of
the States of [Vermont, Massachusetts] and New York and the United States of
America.
I.
Based upon the foregoing and such other documents and information a
review of which we have considered necessary for the purposes hereof, and
subject to all the assumptions and qualifications set forth herein, we are of
the opinion that:
(1) Each of BCMSC and BCI has been duly organized and is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation.
(2) Each of BCMSC and BCI has the corporate power and
corporate authority to carry on its business as described in the
Prospectus and to own and operate its properties in connection
therewith.
(3) Each of BCMSC and BCI is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization and each has the corporate power to
own its assets and to transact the business in which it is currently
engaged and to perform their respective obligations under each of the
Agreements to which it is a party. Each of BCMSC and BCI is qualified
to do business as a foreign corporation and each is in good standing in
each jurisdiction in which the character of the business transacted by
it or properties owned or leased by it requires such qualification and
in which the failure so to qualify would have a material adverse effect
on the business, properties, assets, or condition (financial or other)
of BCMSC and BCI, respectively or on their ability to perform their
respective obligations under the Agreements.
(4) Each of the Agreements to which BCMSC and BCI is a party
has been duly authorized, executed and delivered by BCMSC and BCI, as
applicable, and each constitutes a legal, valid and binding obligation
of, each of BCMSC and BCI, enforceable against each of BCMSC and BCI in
accordance with its terms, except that (A) such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (B) such enforcement may be limited by general principles
of equity (regardless of whether enforcement is sought in a proceeding
in equity or at law).
(5) The execution and delivery by each of BCMSC and BCI of
each of the Agreements to which it is a party, the performance of their
respective obligations thereunder and the signing of the Registration
B-34
Statement by BCMSC are within the corporate power of BCMSC and BCI, as
applicable, and have been duly authorized by all necessary corporate
action on the part of BCMSC and BCI, as applicable; and neither the
issue and sale of the Certificates, nor the consummation of the
transactions contemplated by the Agreements nor the fulfillment of the
terms thereof will, to the best of our knowledge after due inquiry,
conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or asset of BCMSC and BCI pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which BCMSC and BCI is a party or by which either may be bound or to
which the property or assets of BCMSC and BCI are subject, nor will
such action result in any violation of the provisions of the
certificate of incorporation or bylaws of BCMSC and BCI or, to the best
of our knowledge after due inquiry, any law, administrative regulation
or administrative or court decree of any state or federal courts,
regulatory bodies, other body, governmental entity or arbitrator having
jurisdiction over BCMSC and BCI.
(6) To the best of our knowledge, there is no investigation,
action, litigation or administrative proceeding of or before any court,
tribunal or governmental body currently pending or threatened against
BCMSC or BCI (a) asserting the invalidity of the Agreements or the
Certificates, (b) seeking to prevent the consummation of any of the
transactions contemplated by the Agreements, (c) that would be likely
to impair materially the ability of BCMSC or BCI or the Seller, as the
case may be, to perform its obligations under any of the Agreements or
to affect materially and adversely the validity or enforceability of
any of the Agreements or the Certificates, or (d) that could reasonably
be expected to result in any material adverse change in the business,
operations, financial conditions, properties or assets of BCMSC or BCI,
or the ability of BCMSC or BCI to carry on its business substantially
as it is now conducted.
(7) Upon due execution and authentication by the Trustee of
each Class of the Offered Certificates in accordance with the terms of
the Pooling and Servicing Agreement, and upon payment for the Offered
Certificates as provided for in the Underwriting Agreement, the Offered
Certificates will be validly issued and outstanding and the holders
thereof will be entitled to the benefits provided to Certificateholders
pursuant to the Pooling and Servicing Agreement.
[(8) If Mortgage Loans are included as Assets of the related
Trust] (a) Assuming that the transfer of the Mortgage Notes and the
applicable Mortgages to the Trustee as contemplated by the Pooling and
Servicing Agreement is a sale and that the Mortgage Notes have been
duly endorsed and transferred to the Trustee as provided in the Sales
Agreement, the Trustee will obtain, under the laws of ____________, all
of the respective sellers' rights under the applicable Mortgages
(including whatever right the applicable sellers have to require the
trustee under the Mortgage to foreclose thereunder) when such Mortgage
B-35
Notes are delivered to the Trustee against payment therefor. In
__________, when a mortgagee assigns or negotiates a note secured by a
deed of trust to a third party, the deed of trust is also automatically
assigned. Accordingly, the laws of ____________ do not require the
recordation of an assignment or similar instrument as to the Mortgages
in the official land records to transfer to the Trustee the rights of
the applicable sellers in, to and under the Mortgages.
[(b) If the transfer to the Trustee of Mortgage Notes
and the applicable Mortgages is deemed to be a grant of a security
interest therein to the Trustee and assuming that the Mortgage Notes
have been duly endorsed and delivered to the Trustee as provided in the
Sales Agreement, execution and recordation of assignments or similar
instruments as to the Mortgages are not required under the laws of
__________ to create or perfect such a security interest in the
Mortgage Notes and assuming that the Mortgage Notes have been duly
endorsed and delivered to the Trustee as provided in the Sales
Agreement, the beneficiary's rights under the applicable Mortgages will
inure to the Trustee when the Trustee becomes the owner and holder of
the Mortgage Notes after proper realization upon the Trustee's security
interest in such Mortgage Notes.]
(9) No consent, approval, authorization or order of,
registration or filing with, or notice to, any court or governmental
agency or body or official is required under the laws of the United
States of America or the States of [Vermont and Massachusetts] for the
consummation by each of BCMSC and BCI of the transactions contemplated
by the Agreements to which it is a party, except such as may be
required under state securities or "blue sky" laws of any jurisdiction
in connection with the purchase and distribution by each Underwriter of
the Offered Certificates.
(10) Neither BCMSC nor the Trust established pursuant to the
Pooling and Servicing Agreement is required, as a result of the offer
and sale of the Offered Certificates as contemplated by the
Underwriting Agreement, to be registered under the Investment Company
Act of 1940, as amended.
(11) The Registration Statement has become effective under the
Act, and, to our knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and not withdrawn and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act.
(12) The statements in the Base Prospectus under the captions
"Description of the Certificates," "The Pooling and Servicing
Agreements," "ERISA Considerations," "Federal Income Tax Consequences"
and "State Tax Considerations" and the statements in the Prospectus
Supplement under the captions "The Trust," "Description of the Offered
Certificates," "ERISA Considerations" and "Federal Income Tax
Consequences," insofar as such statements constitute a summary of the
documents referred to therein, fairly summarize such documents and
B-36
present the information called for by the Act and the rules and
regulations promulgated under the Act.
II.
We have participated in various conferences with the officers and
directors of BCMSC and its independent certified public accountants. In some
conferences you and your counsel also participated. At those conferences, the
contents of the Registration Statement and Prospectus were discussed and
revised. Since the dates of those conferences, we have inquired of certain
officers whether there has been any material change in the affairs of BCMSC.
Because of the inherent limitations in the independent verification of
factual matters, and the character of determinations involved in the preparation
of registration statements under the Act, we are not passing upon, and do not
assume any responsibility for, and make no representation that we have
independently verified, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except as
specifically set forth in paragraph 12 of Part I of our opinion above. Also, we
do not express any opinion or belief as to the financial statements or other
financial or statistical information contained or incorporated by reference into
the Registration Statement. However, subject to the foregoing, on the basis of
our participation in the conferences referred to above and our examination of
the documents referred to herein, we advise you that: (a) in our opinion, the
Registration Statement, when it became effective, and the Prospectus, as of its
date and as of the date hereof (other than the financial statements, schedules
and other financial data included therein or excluded therefrom or included in
or excluded from the exhibits to the Registration Statement or incorporated
therein by reference, as to which we express no opinion) comply as to form in
all material respects with the requirements of the Act and the rules and
regulations promulgated thereunder; and (b) to our knowledge, there are no
contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required. We note that
the Pooling and Servicing Agreement will be filed as an exhibit to a Current
Report of BCMSC on Form 8-K within 15 days after the date hereof. Further,
nothing has come to our attention that leads us to believe that the Registration
Statement, when it became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements made therein not misleading; or that
the Prospectus, as of its date and as of the date hereof, contained or contains
any untrue statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not
misleading; except that we make no statement with respect to the financial
statements or other financial or statistical data included therein or
incorporated therein by reference, including, but not limited to, the
information relating to the Assets, under the heading "The Asset Pool" and the
information relating to the Assets and financial data under the headings
"Maturity and Prepayment Considerations" and "Yield on the Offered Certificates"
in the Prospectus Supplement and the information set forth in the Prospectus
under the headings "Maturity and Prepayment Considerations" and "Yield
Considerations."
B-37
We consent to reliance on this opinion letter by you and by (i) the
Trustee, (ii) [names of rating agencies] each for the purpose of issuing a
letter rating the Offered Certificates, and (iii) [counsel for the
Underwriters], with respect to all matters of _________ law covered hereby, for
the purpose of rendering their opinion to the Underwriters. Except as provided
in the preceding sentence, this opinion letter may not be relied upon by, nor
may copies be delivered to, any person without our prior written consent.
Very truly yours,
X-00
Xxxxxxx X-0
__________ _____, 199_
[Name and Address
of Underwriter(s) ]
[Name and Address
of Rating Agency]
Bombardier Capital Mortgage Securitization Corporation
Pass-Through Certificates, Series _______
Ladies and Gentlemen:
We have acted as special counsel to Bombardier Capital Mortgage
Securitization Corporation, a Vermont corporation (the "Company"), in connection
with the formation by it of BCMSC Trust 199_-_ (the "Trust"), the assets of
which consist primarily of a pool of retail installment sales contracts [and/or]
installment sales agreements secured by units of manufactured housing
("Manufactured Homes") [and] contracts secured by liens on the real estate on
which the related Manufactured Homes are located (collectively, the "Contracts")
[and/or] mortgage loans (the "Mortgage Loans," and, together with the Contracts,
the "Assets") secured by first liens the real estate to which the related
Manufactured Homes are deemed permanently affixed (the "Mortgaged Properties").
The Trust was organized pursuant to a Pooling and Servicing Agreement
(the "Series Agreement"), dated as of _____________ __, 199_, by and among the
Company, Bombardier Capital Inc. ("BCI") in its capacity as servicer of the
Contracts (the "Servicer"), and __________, as trustee (the "Trustee"). The
Series Agreement incorporates by reference the Company's Standard Terms to
Pooling and Servicing Agreement (July 1998 Edition) (the "Standard Terms," and,
together with the Series Agreement, the "Pooling and Servicing Agreement"). We
also have acted as special counsel to BCI in connection with its role as
Servicer for the Trust. Capitalized terms used herein but not defined herein
shall have the meanings assigned to them in the Pooling and Servicing Agreement.
The Trust is issuing today number classes of certificates
(collectively, the "Certificates"), which Classes are described in the Pooling
and Servicing Agreement. The Classes __________ Certificates (the "Underwritten
Certificates") are being sold to you today pursuant to a terms agreement (the
"Terms Agreement") dated _________ __, 19__, among you (the "Underwriter"), the
Company and BCI. This opinion is furnished to you in accordance with Section
6(e) of the Company's Underwriting Agreement Standard Provisions (July 1998)
(the "Standard Provisions"), the terms of which are incorporated by reference
into the Terms Agreement (the Terms Agreement together with the Standard
Provisions being referred to collectively as the "Underwriting Agreement" ).
In rendering the opinions expressed below, we have examined the
following documents:
(a) The Pooling and Servicing Agreement;
(b) The Sales Agreement, dated as of __________ __, 19__
(the "Sales Agreement"), by and between BCI, as
seller, and the Company, as purchaser, pursuant to
which the Company acquired the Assets;
(c) Financing statements (the "Financing Statements") (1)
relating to the Contracts and the payments thereon
and proceeds thereof, naming [BCI] as debtor, the
Company as secured party and the Trustee as assignee,
(2) relating to the Assets and the payments thereon
and proceeds thereof, naming [the Company] as debtor
and the Trustee as Secured Party, and (3) relating to
the Assets and the payments thereon and proceeds
thereof, the Company's rights under the Sales
Agreement and to the [specify any reserve or other
funds pledged or conveyed to the Trustee by the
Company], naming the Company as debtor and the
Trustee as secured party; and
(d) The Underwriting Agreement (together with the Pooling
and Servicing Agreement and the Sales Agreement, the
"Agreements").
For the purposes of this opinion:
(i) the ["Florida/Vermont UCC"] means the
Uniform Commercial Code as in effect in the State of
[Florida/Vermont];
(ii) "Money" means "money" as defined in
Section 1-201 of the applicable UCC;
(iii) "Instruments" means "instruments" as
defined in Section [9-105(1)(i)] of the applicable
UCC;
(iv) "General Intangibles" means "general
intangibles" as defined in Section [9-106] of the
applicable UCC; and
(v) "Chattel Paper" means "chattel paper" as
defined in Section [9-105(1)(b)] of the applicable
UCC.
In rendering the opinions expressed below, we have assumed (i) the
authenticity of all documents submitted to us as originals, (ii) the conformity
to the originals of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such copies, (iii) the
genuineness of signatures not witnessed by us, (iv) the legal capacity of
natural persons and (v) the due authorization, execution and delivery of all
documents by all parties thereto and the validity, binding effect and
enforceability thereof. We note that you have received today our opinion with
B-2-40
respect to certain of the matters set forth in clause (v) of the preceding
sentence. Whenever the phrase "to our knowledge" or "known to us" is used
herein, it refers to the actual knowledge of the attorneys of this firm involved
in the representation of the Company and BCI in connection with the transactions
described herein without independent investigation.
We have not examined the actual Contracts [or] Mortgage Notes, the
assignments of the Contracts or the endorsements of the Mortgage Notes, any
Mortgages or assignments thereof or any other Contract Documents or Mortgage
Loan Documents (collectively, the "Asset Documents"), and we express no opinion
concerning the conformity of any of the foregoing to the requirements of any of
the Agreements. We have not examined the certificate of title, if any,
pertaining to the ownership or status of title to the property securing any
Contract and we express no opinion thereon. We also have not examined any title
records as they pertain to ownership or status of title to the Mortgaged
Property securing any Mortgage Note or the Real Property securing any Land
Secured Contract. [We call to your attention that the Initial Certification of
the Trustee delivered pursuant to Section 2.03(c)(1) of the Standard Terms
identifies certain document deficiencies with respect to the Mortgage Loan
Documents for certain Mortgage Loans. Consequently, certain assumptions made
herein regarding the conformity of the Asset Documents to the requirements of
any of the Agreements may not be true. We note that the Sales Agreement provides
that, in some but not all circumstances, BCI is required to repurchase or
replace Assets to the extent of document deficiencies that are not cured.]
We have requested [CSC Networks (formerly known as Xxxxxxxx-Xxxx Legal
& Financial Services)] to review the UCC records maintained by the
______________ Secretary of State and the Register of Deeds of ________________,
_____________ with respect to financing statements naming BCI or the Company, as
debtor. Our opinion expressed in numbered paragraph 3 below is rendered in
reliance upon the results of that search and upon a certificate of officers of
the respective companies relating thereto, dated the date hereof (the "Officers'
Certificate"), and is based upon the assumptions (i) that no financing
statements were filed against any of the aforementioned companies as of the
dates through which the respective related search reports are current, which is
no earlier than ________ ___, 19__, other than those reflected in such search
reports, and (ii) that no financing statements have been filed against such
companies since _________ ___, 19__. We assume no liability for the search
reports. Each of BCI and the Company has represented that the Assets formerly
owned by it are subject to no liens, claims or encumbrances having priority over
the Trustee's lien thereon. We do not purport to express an opinion on any laws
other than those of the [State of Vermont/Florida] and the United States of
America.
Based upon the foregoing and such other documents and information a
review of which we have considered necessary for the purposes hereof, and
subject to all other assumptions and qualifications set forth herein, we are of
the opinion that:
B-2-41
1. In the event that either the transfer of the Assets by
[BCI] to the Company or the transfer of the Assets by the Company to
the Trustee is found not to be a "true sale," (a) BCI (i) has granted
to the Company a valid security interest under Article 9 of the
[Vermont/Florida] UCC in the Contracts and the Mortgage Notes, and in
the proceeds thereof to the extent provided in Section [9-306] of the
[Vermont/Florida] UCC, and (ii) has assigned to the Company a security
interest in the Manufactured Homes, and (b) the Company (i) has either
granted or assigned to the Trustee a valid security interest under
Article 9 of the [Vermont/Florida] UCC in the Contracts [and the
Mortgage Notes], and in the proceeds thereof to the extent provided in
Section [9-306] of the [Vermont/Florida] UCC, and (ii) has assigned to
the Trustee a security interest in the Manufactured Homes securing the
Contracts.
[2. [If Reserve Fund included] The Company has granted to the
Trustee a valid security interest in the Money and Instruments
comprising the [specify any fund pledged to the Trustee], and in the
proceeds thereof to the extent provided in Section [9-306] of the
[Vermont/Florida] UCC. ]
3. The Financing Statements are in appropriate form for filing
in the office of the [Vermont/Florida] Secretary of State and in the
office of the Register of Deeds of ____________________, and the due
indexing of the Financing Statements among the UCC financing statement
records in the office of the [Vermont/Florida] Secretary of State and
in the office of the Register of Deeds of __________________ will be
sufficient to perfect the security interests created by the Sales
Agreement and by the Pooling and Servicing Agreement in the Contracts
and in the proceeds thereof (to the extent a security interest in
proceeds of the Contracts was created as provided in Section [9-306] of
the [Vermont/Florida] UCC) [and in that portion of the specify any fund
pledged by the Company to the Trustee consisting of those items and
types of collateral a security interest in which may be perfected by
filing a financing statement under the [Vermont/Florida] UCC]. Upon
perfection of the Company's security interest in the Contracts and of
the Trustee's security interest in the Contracts, no other security
interest will be equal or prior to the Trustee's security interest in
the Contracts and in the proceeds thereof to the extent provided in
Section [9-306] of the [Vermont/Florida] UCC.
[4. [If Assets include Mortgage Loans] The security interest
of the Trustee in the Mortgage Notes and in those portions of the
specify any fund to be pledged by the Company to the Trustee that
constitute Money or Instruments and in the proceeds thereof (but only
to the extent provided in Section [9-306] of the [applicable] UCC) will
be perfected upon the delivery of the Mortgage Notes and such Money or
Instruments to the Trustee. Upon such delivery, no other security
interest will be equal or prior to the security interest of the Trustee
in the Mortgage Notes and such Money or Instruments. No opinion is
expressed with respect to the continued perfection of such security
interest in the Mortgage Notes or such Money or Instruments in the
event that the Trustee relinquishes possession thereof.]
B-2-42
Our opinions with respect to the security interests of the Trustee in
items of collateral other than the Manufactured Homes are subject to the
following qualifications:
(a) we call to your attention that a security interest in
proceeds is limited to the extent set forth in Section [9-306] of the
applicable UCC;
(b) we have assumed, based on the certifications contained in
the Officer's Certificate, that each item of collateral described
herein exists and that BCI has sufficient rights in all such collateral
for the security interests therein granted to the Company pursuant to
the Sales Agreement to attach and that the Company has sufficient
rights in all such collateral for the security interests therein
granted or assigned pursuant to the Pooling and Servicing Agreement to
attach;
(c) we have assumed that payment for the Certificates has been
made in accordance with the Underwriting Agreement and that payment for
the Assets has been made in accordance with the Sales Agreement;
(d) we have assumed that the Contracts are Chattel Paper under
the applicable UCC [and the Mortgage Notes are Instruments as defined
in the applicable UCC (but excluding any Instrument constituting a
"certified security" as defined in Section [8-102] of the applicable
UCC);]
(e) we have assumed, based on the certifications in the
Officer's Certificate, that each Contract validly created a security
interest in BCI in the underlying Manufactured Home, which security
interest attached;
(f) we have assumed (i) that payment for the Offered
Certificates has been made in accordance with the Underwriting
Agreement and (ii) that [_________________] has made payment for the
[Class X and Class R] Certificates to the Company in accordance with
the agreement between the Company and [____] providing for such
purchase and that the [Class X and Class R] Certificates have been
executed and authenticated by the Trustee and delivered to [_____] or
its designee;
(g) we have assumed that each Contract [and Mortgage Note] is
in one of the forms supplied by BCI in the Officers' Certificate;
(h) we have assumed, based upon the certifications in the
Officer's Certificate, the due execution of each endorsement of each
[Mortgage Note,] of an assignment or assignments of the Contracts [and
of an assignment in recordable form of each Mortgage] (an
"Assignment"), in each case from the originators thereof through any
intervening endorsees or assignees to the Company and the validity of
each such endorsement and assignment under relevant state law;
B-2-43
[(i) we have assumed that, to the extent required by
applicable state law, each Assignment of a Mortgage securing a Mortgage
Loan necessary to reflect the transfer of such Mortgage from the
related originator to the Trustee has been duly recorded in the proper
recording office subject to no intervening recordations prior to the
date of recordation of such Assignment. We note that Section _________
of the Standard Terms requires that the Company arrange for the
recordation of such Assignments promptly following closing and, in any
event, within one year after the Closing Date;]
(j) we call to your attention that Section 552 of Title 11 of
the United States Code (the "Bankruptcy Code") limits the extent to
which property acquired by a debtor after the commencement of a
proceeding under the Bankruptcy Code may be subject to a security
interest arising from a security agreement entered into by the debtor
before the commencement of such a proceeding;
(k) we have assumed, based on Section 204 of the Standard
Terms, that the Trustee has not received any notice as to any security
interest in the Contracts [or Mortgage Notes] [specify any fund pledged
to the Trustee], other than a notice with respect to the security
interest of the Trustee;
(l) we have assumed based on the certifications in the
Officer's Certificate, that each Contract [and each Mortgage Note] is
evidenced by only one original document; and
(m) we have assumed based on the certifications in the
Officer's Certificate, that there are no agreements or understandings
among the Company, BCI, the Trustee or any other party which would
modify, release, terminate or delay the attachment of the security
interest granted to the Trustee under the Pooling and Servicing
Agreement.
As to factual matters, we have relied upon representations included in
the Agreements, in documents delivered at the closing, upon certificates of
officers of BCI, the Company and the Trustee, and upon certificates of public
officials. Without limiting the foregoing, we have relied upon representations
and warranties in the Agreements or upon certificates of BCI, the Company, or
the Trustee:
(a) that BCI has the full right to sell each Asset to the
Company and that the Company has the full right to sell each Asset to
the Trustee, and that, upon authorization, execution and delivery of
the Sales Agreement by all parties thereto, the Company will be the
sole beneficial owner of each Asset free and clear of liens,
encumbrances (except the lien created by the Pooling and Servicing
Agreement), and that the Company has not assigned any interest or
participation in any Asset other than to the Trustee that has not been
released;
B-2-44
(b) that each Asset was acquired by each of BCI, the Company
and the Trustee in the ordinary course of their respective businesses,
in good faith, for value and without notice that it is overdue or has
been dishonored or of any defense against or claim to it on the part of
any person;
(c) as to the absence of any actual or constructive knowledge
or notice by BCI, the Company or the Trustee of any interest contrary
to the Trustee's interests under the Pooling and Servicing Agreement;
(d) that the Trustee is not an affiliate of the Company; and
(e) that the Obligor's debt evidenced by any Contract is not
separately evidenced by any promissory note or other Instrument.
We do not express any opinion as to:
(1) the priority of any security interest as against any claim
or lien in favor of the United States or any State or any agency or
instrumentality of the United States or any State (including, without
limitation, federal tax liens, liens under the Employee Retirement
Income Security Act of 1974, as amended, or claims given priority
pursuant to 31 U.S.C. ss. 3713);
(2) the priority of any security interest as against any
liens, claims, or other interests that arise by operation of law and do
not require any filing or similar action in order to take priority over
a prior perfected security interest under the UCC of any relevant
jurisdiction;
(3) the priority of any security interest as against the
rights of any purchaser of any of the Assets who gives new value for
and takes possession of such Assets in the ordinary course of his
business without knowledge that any such Asset is subject to a security
interest as described in Section [9-308] of the applicable UCC or
against a purchaser of any of the Assets (including a secured party)
who could be afforded priority under Section [9-309] of the applicable
UCC;
(4) the priority of any security interest as against a lien
creditor (as defined in Section [9-301(3)] of the applicable UCC) who
attached or levied prior to the perfection of the security interest of
the Trustee;
(5) the priority of any security interest as against a lien
creditor to the extent the security interest purports to secure future
advances or other extensions of credit subsequent to the date hereof
other than advances made pursuant to commitments existing on the date
of attachment by such lien creditor;
B-2-45
(6) the priority of any security interest in collateral
constituting proceeds of collateral subject to a third party's security
interest;
(7) the priority of any security interest as against another
secured party in possession of the related collateral prior to the
perfection of the Trustee's security interest through filing of the
Financing Statements;
(8) the priority of any security interest as against a
purchase money security interest that could be perfected without
possession pursuant to Section [8-313(1)(h)] of the applicable UCC or
that could be afforded priority under Section [9-312(4)] of the
applicable UCC;
(9) the priority of any security interest as against the
rights of any person against whom the transfer to BCI, the Company or
the Trustee was "wrongful" within the meaning of Section [8-315] of the
applicable UCC;
(10) the priority of any security interest as against a
security interest perfected under the laws of another jurisdiction to
the extent the collateral subject to such security interest was located
in such jurisdiction within four months prior to the perfection of the
security interest of the Company or the Trustee;
(11) the priority of any security interest as against any
person who has entered into a subordination agreement or intercreditor
agreement with the Company or the Trustee with respect to any of the
collateral covered by the opinions set forth above; and
(12) whether or to what extent particular items included in
the [specify any fund pledged to Trustee] may constitute Money or
Instruments.
With respect to the Financing Statements, we call your attention to the
fact that the effectiveness of the Financing Statements will terminate (i)
unless appropriate continuation statements are filed within the time period
prescribed by relevant state law; (ii) with respect to collateral acquired more
than four months after any name change by the debtor, unless new appropriate
financing statements indicating the new name of the debtor are properly filed
before the expiration of four months after the debtor changes its name; and
(iii) four months after any relocation by the debtor of its chief executive
office or principal place of business to a new jurisdiction, unless such
security interest is perfected in such new jurisdiction within such time.
[We do not purport to express an opinion on any laws other than those
of the ________________________, ___________________________ and the United
States of America, except to the extent that the opinion expressed in numbered
paragraph 4 above relates to matters of ______________ law.]
We consent to reliance on this opinion letter by you and by (i) the
B-2-46
Trustee and (ii) Underwriters' counsel, with respect to all matters of
______________________________ law covered hereby, for the purpose of rendering
their opinion to the Underwriters. Except as provided in the preceding sentence,
this opinion letter is for your benefit only and may not be relied upon by, nor
may copies be delivered to, any other person without our prior written consent.
Very truly yours,
B-2-47
