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EXHIBIT 99
BOMBARDIER CAPITAL MORTGAGE SECURITIZATION
CORPORATION
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PASS-THROUGH CERTIFICATES
(ISSUABLE IN SERIES)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
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JANUARY 1998
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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 and manufactured housing
installment sales agreements ("Contracts") secured by units of manufactured
housing ("Manufactured Homes") 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
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.
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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, 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."
(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
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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
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
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any judgment, decree or 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,
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
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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, upon the stamping of the face
of each related Contract with a legend giving notice of the assignment
of such Contract to the Trustee, 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, 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.
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(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)The chief executive office of the Company is listed
opposite its name on Schedule I hereto, which office is the place where
it is "located" for the purposes of Section 9-103(3)(d) of the Uniform
Commercial Code as in effect in the State of New York, and the offices
of the Company 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.
(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.
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(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 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
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
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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) The chief executive office of BCI is listed opposite its
name on Schedule I hereto, which office is the place where it is
"located" for the purposes of Section 9-103(3)(d) of the Uniform
Commercial Code as in effect in the State of New York, 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.
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
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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 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
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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 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
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Mortgage Loans to be 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,
substantially contemporaneously with its first delivery of such
Collateral Term Sheet to a potential investor, delivered such Collateral
Term Sheet (in hard copy and 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 promptly provided any such Structural Term Sheet, Series Term
Sheets or Computational Materials (in hard copy and XXXXX format) to the
Company or its counsel, which Structural Term Sheets, 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 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
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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,
Peabody & Co. Incorporated, and Xxxxxx Structured Asset Corporation, the
no-action letter dated May 27, 1994 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.
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(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 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.
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(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
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
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.
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(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
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,
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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 in reliance upon and in conformity with any Underwriters'
Information; 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
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
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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
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 investiating 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.
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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
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.
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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.
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SCHEDULE I
Locations of Chief Executive Offices and Principal Places of Business
Bombardier Capital Mortgage Securitization 0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxxx Xxxxxxxxxx, Xxxxxxx 00000
Bombardier Capital Inc. 0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, 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
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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
January 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 (January 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 installment sales agreements secured by units of manufactured
housing (the "Contracts") with original terms to maturity not exceeding 30 years
[and] 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.
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
$__________.
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23
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
__________, 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
A-2
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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.]
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:
A-3
25
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:
Name:
Title:
Accepted and Acknowledged
As of the Date First
Above Written:
BOMBARDIER CAPITAL MORTGAGE SECURITIZATION CORPORATION
By:
-----------------------------------
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26
Name:
Title:
By:
------------------------------------
Name:
Title:
BOMBARDIER CAPITAL INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
X-0
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
installment sales agreements (the "Contracts") secured by units of manufactured
housing ("Manufactured Homes") and 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 (January
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, January
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
28
[Name of Underwriter(s)]
____________, 19__
Page 2
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,
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
B-2
29
[Name of Underwriter(s)]
____________, 19__
Page 3
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
B-3
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[Name of Underwriter(s)]
____________, 19__
Page 4
Agreements to which it is a party, the performance of their respective
obligations thereunder and the signing of the Registration 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
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[Name of Underwriter(s)]
____________, 19__
Page 5
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 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.
B-5
32
[Name of Underwriter(s)]
____________, 19__
Page 6
(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
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
B-6
33
[Name of Underwriter(s)]
____________, 19__
Page 7
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."
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,
B-7
34
[Name of Underwriter(s)]
__________ __, 19__
Page 1
Exhibit B-2
__________ _____, 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
installment sales agreements (the "Contracts") secured by units of manufactured
housing ("Manufactured Homes") [and 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 (January 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 (January 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;
35
[Name of Underwriter(s)]
__________ __, 19__
Page 2
(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
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
B-2-2
36
[Name of Underwriter(s)]
__________ __, 19__
Page 3
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:
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)
B-2-3
37
[Name of Underwriter(s)]
__________ __, 19__
Page 4
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
B-2-4
38
[Name of Underwriter(s)]
__________ __, 19__
Page 5
or Instruments in the event that the Trustee relinquishes possession
thereof.]
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
"certificated 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 is in one of the forms
supplied by BCI in the Officers' Certificate, in which case the
Contracts are Chattel Paper under the applicable UCC;
B-2-5
39
[Name of Underwriter(s)]
__________ __, 19__
Page 6
(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;
[(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:
B-2-6
40
[Name of Underwriter(s)]
__________ __, 19__
Page 7
(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) 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;
B-2-7
41
[Name of Underwriter(s)]
__________ __, 19__
Page 8
(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;
(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
B-2-8
42
[Name of Underwriter(s)]
__________ __, 19__
Page 9
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
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-2-9
