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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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JULY 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, manufactured housing
installment sales agreements ("Contracts") secured by units of manufactured
housing ("Manufactured Homes"), Contracts secured by liens on the real estate on
which the related Manufactured Homes are located and/or mortgage loans
("Mortgage Loans" and, collectively with Contracts, "Assets") secured by first
liens on real estate to which the related Manufactured Homes are deemed
permanently affixed ("Mortgaged Properties").
The Trustee may make one or more elections to have the assets of the Trust
or portions thereof treated as real estate mortgage investment conduits (each, a
"REMIC") under the Internal Revenue Code of 1986, as amended (the "Code"). In
the event that more than one REMIC is created for a Series, all references
herein to a REMIC shall be deemed to refer to all related REMICs, unless the
context otherwise requires.
The Company will sell, assign and transfer the Assets acquired by it to
the related Trust, all in exchange for the Certificates of the related Series
issued by that Trust. The Assets will have been acquired by the Company from BCI
or from one or more sellers (each, in such capacity, a "Seller"), in each case
pursuant to a sales agreement (each, a "Sales Agreement") between the Company
and the Seller of such Assets. The net proceeds to the Company from the sale of
each Series of the Certificates principally will be used to pay the purchase
price of the Assets acquired for the related Trust.
The Certificates are more fully described in the Registration Statement
(as hereinafter defined). Each Series of Certificates, and any classes of
Certificates within each Series, may vary, among other things, as to number and
types of classes, aggregate principal amount, final stated distribution dates,
the rate or rates of interest accruing thereon, and the allocation, priority and
timing of distributions thereon.
From time to time, the Company may enter into one or more terms agreements
(each, a "Terms Agreement") substantially in the form of the Form of Terms
Agreement attached hereto as Exhibit A, which Terms Agreements provide for the
sale of all or a portion of certain classes of a Series of Certificates (such
certificates to be so purchased being herein collectively referred to as the
"Underwritten Certificates") to the underwriters named in the related
underwriting agreement (the "Underwriters"). The standard provisions set forth
herein are to be incorporated by reference in any such Terms Agreement. A Terms
Agreement, including the provisions hereof incorporated therein by reference, is
herein referred to as an "Underwriting Agreement" or an "Agreement." Unless
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
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defined therein shall have the meanings assigned to them in the related Pooling
and Servicing Agreement.
The Terms Agreement relating to each offering of Underwritten Certificates
shall specify, among other things, the principal amount of the Underwritten
Certificates to be issued and their terms not otherwise specified in the related
Pooling and Servicing Agreement, the price or prices at which the Underwritten
Certificates are to be purchased by the Underwriters from the Company, the
initial public offering price or the method by which the price at which such
Underwritten Certificates are to be sold will be determined, the names of the
firm(s), if any, designated as representative(s) of the Underwriters (the
"Representatives"), and the principal amount of the Underwritten Certificates to
be purchased by each Underwriter, and shall set forth the date, time and manner
of delivery of the Underwritten Certificates and payment therefor.
The Company is a limited-purpose finance corporation and a wholly-owned
subsidiary of BCI, which in turn, is an indirect wholly-owned subsidiary of
Bombardier Inc., a Canadian corporation.
1. Representations and Warranties. (a) The Company and BCI,
jointly and severally, represent and warrant to, and agree with, each
Underwriter that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 for the
registration of the Underwritten Certificates under the Securities Act of
1933, as amended (the "Act"), which registration statement has become
effective, and has filed such amendments thereto as may have been required
to the date hereof. Such registration statement, as amended at the date
hereof, meets the requirements set forth in Rule 415 under the Act and
complies in all material respects with the Act and the rules and
regulations thereunder. The Company proposes to file with the Commission
pursuant to Rule 424 under the Act a supplement to the form of prospectus
included in such registration statement relating to the Underwritten
Certificates and the plan of distribution thereof. Such registration
statement, including the exhibits thereto and documents incorporated by
reference therein, as amended at the date hereof, is hereinafter called
the "Registration Statement;" the latter of such prospectus in the form in
which it appears in the Registration Statement or in the form most
recently revised and filed with the Commission pursuant to Rule 424 is
hereinafter called the "Basic Prospectus;" and the form of prospectus
supplement specifically relating to the Underwritten Certificates, in the
form in which it shall be first filed with the Commission pursuant to Rule
424 (including the Basic Prospectus as so supplemented and the
information, if any, filed with the Commission pursuant to the Exchange
Act and incorporated by reference therein) is hereinafter called the
"Final Prospectus." Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 or, prior to the effective date
of the Registration Statement, pursuant to Rule 402(a), 424(a) or 430A, is
hereinafter called a "Preliminary Final Prospectus." Any supplement to the
Basic Prospectus specifically relating to the Underwritten Certificates
shall be referred to by itself as the "Prospectus Supplement."
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(ii) As of the date of this Agreement, when the Final Prospectus is
first filed pursuant to Rule 424 under the Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration Statement
becomes effective, when any supplement to the Final Prospectus is filed
with the Commission, and at the Closing Date, (A) the Registration
Statement, as amended as of any such time, and the Final Prospectus, as
amended or supplemented as of any such time, complies and will comply in
all material respects with the applicable requirements of the Act and the
rules and regulations thereunder and (B) the Registration Statement, as
amended as of any such time, does not contain and will not contain any
untrue statement of a material fact and does not omit and will not omit to
state any material fact required to be stated therein or necessary in
order to make the statements made therein not misleading and the Final
Prospectus, as amended or supplemented as of any such time, does not and
will not include an untrue statement of a material fact and does not omit
and will not omit to state a material fact necessary in order to make the
statements made therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity
with (i) the Underwriters' Information (as defined in the related Terms
Agreement) or (ii) other than with respect to any Asset Pool Information
(if so defined in the related Terms Agreement), any Collateral Term Sheet,
Structural Term Sheet, Series Term Sheet or Computational Materials (each
as defined in Section 5(b)(vi) below).
(iii) The documents incorporated by reference in the Registration
Statement and the Final Prospectus, at the time they were or hereafter are
filed with the Commission, complied, and will comply, in all material
respects with the requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations of the
Commission thereunder.
(iv) As of the date of this Agreement, when the Final Prospectus is
first filed pursuant to Rule 424 under the Act, when, prior to the Closing
Date, any amendment to the Registration Statement becomes effective, when
any supplement to the Final Prospectus is filed with the Commission, and
at the Closing Date, there has not and will not have been (A) any request
by the Commission for any further amendment of the Registration Statement
or the Final Prospectus or for any additional information, (B) any
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation or threat of any
proceeding for that purpose, or (C) any notification with respect to the
suspension of the qualification of the Underwritten Certificates for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(v) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Vermont
with full power and authority (corporate and other) to own, lease and
operate its properties and to conduct its business as it is now conducted
and as described in the Final Prospectus, and to enter into and perform
its obligations under the Agreement, each related Sales Agreement and the
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related Pooling and Servicing Agreement, and has qualified to do business
as a foreign corporation and is in good standing under the laws of each
jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification, except where
the failure so to qualify would not have a material adverse effect on the
Company. The Company holds all material licenses, certificates,
franchises, and permits from all governmental authorities necessary for
the conduct of its business as it is now conducted and as described in the
Final Prospectus or as is necessary for the performance of its obligations
under any related Sales Agreement or related Pooling and Servicing
Agreement, and has received no notice of proceedings relating to the
revocation of any such license, certificate or permit, that, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would affect materially and adversely the conduct of the
business, results of operations, net worth or condition (financial or
otherwise) of the Company.
(vi) The Company is not in violation of its articles of
incorporation or bylaws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, deed of trust, indenture, mortgage, loan agreement, note, lease
or other instrument to which it is a party or by which it or its
properties may be bound, which default might result in any material
adverse change in the financial condition, earnings, affairs or business
of the Company or which might materially and adversely affect the
properties or assets thereof or the ability to perform its obligations
under the Agreement, each related Sales Agreement, and the related Pooling
and Servicing Agreement.
(vii) The execution of the Terms Agreement, each related Sales
Agreement and the related Pooling and Servicing Agreement are within the
corporate power of the Company. The Agreement has been, and as of the
Closing Date the related Pooling and Servicing Agreement and each related
Sales Agreement will have been, duly and validly authorized, executed and
delivered by the Company, and assuming the valid authorization, execution
and delivery by the other parties thereto, each constitutes, or will
constitute, a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and to general principles of equity,
regardless of whether such enforcement is sought in a proceeding in equity
or at law, and except that with respect to the Agreement the provisions
relating to indemnification of the Underwriters may be unenforceable as
against public policy.
(viii) Neither the issuance and sale of the Underwritten
Certificates, nor the execution and delivery by the Company of the
Agreement, any related Sales Agreement or the related Pooling and
Servicing Agreement, nor the consummation by the Company of any of the
transactions herein or therein contemplated, nor compliance by the Company
with the provisions hereof or thereof, will (A) conflict with or result in
a breach of, or constitute a default under, any of the provisions of the
articles of incorporation or bylaws of the Company or any law,
governmental rule or regulation or any judgment, decree or 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
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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
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the related Pooling and Servicing Agreement, the Company will have
transferred all its right, title and interest in such Assets to the
Trustee, provided that the Company will not be deemed to be in breach of
this representation and warranty to the extent that a court of competent
jurisdiction holds that at the time of the execution of the related
Pooling and Servicing Agreement the Company had a first priority perfected
security interest in such Assets or that the Company granted to the Trust
a first priority perfected security interest in such Assets.
(xiv) Under generally accepted accounting principles, the Company
will report its transfer of the Assets to the Trustee pursuant to the
related Pooling and Servicing Agreement and the sale of the Certificates
of the related Series as a sale of its interest in such Assets. The
Company has been advised by its independent certified public accountants
that it concurs with such treatment under generally accepted accounting
principles. For federal income tax purposes, the Company will treat the
transfer of the Assets to the Trustee and the sale of the Underwritten
Certificates either as a transaction in which it acts as the agent of one
or more Sellers or as a sale of its interest in the Assets.
(xv) As of the Closing Date, the Assets will be duly and validly
assigned to the Trustee or its nominee, UCC-1 financing statements
describing any Contracts as collateral and (i) naming the Seller as
"debtor," the Company as "secured party" and the Trustee as "assignee" and
(ii) naming the Company as "debtor" and the Trustee as "secured party,"
will be filed in all filing offices where such filing is necessary to
perfect the Trustee's ownership or security interest in any related
Contracts, and any related Mortgage Notes will be endorsed without
recourse to the Trustee or to its nominee and delivered to the Trustee or
to an agent on its behalf and, where required in order to transfer all
right, title and interest to a Mortgage Loan. Upon completion of the
aforementioned actions, and, where required in order to transfer a lien on
a Mortgaged Property, upon the recordation of assignments to the Trustee
of any related Mortgages in the public records in which such Mortgages
shall have been recorded (which recordation shall be effected unless the
Underwriters receive an opinion of counsel satisfactory to them (at the
Company's expense) that such recording is not required under applicable
law to perfect the Trustee's security interest in the related Mortgaged
Property), the Trustee will own each related Asset, subject to no prior
lien, mortgage, security interest, pledge, charge or other encumbrance,
except as permitted under the related Pooling and Servicing Agreement.
(xvi) As of the Closing Date, any letter of credit or surety bond
included in any accounts or funds constituting part of the Trust with
respect to the Underwritten Certificates will name the Trustee as the
beneficiary thereof and will be delivered to the Trustee, any cash will be
delivered to the Trustee and any Eligible Investments (as defined in the
related Pooling and Servicing Agreement) will be made in the Trustee's
name, and delivered to and/or assigned to the Trustee, 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.
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(xviii) At the Closing Date, any Primary Mortgage Insurance Policies
and Standard Hazard Insurance Policies (as such terms are defined in the
related Pooling and Servicing Agreement) that are required to be
maintained with respect to any of the related Assets pursuant to the
related Pooling and Servicing Agreement will have been duly and validly
authorized, executed and delivered by, and will constitute legal, valid
and binding obligations of the issuers of such Primary Mortgage Insurance
Policies and Standard Hazard Insurance Policies (collectively, the
"Insurers"), as the case may be, subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and to general principles of equity, regardless of
whether enforcement is sought in a proceeding in equity or at law.
(xix) Except as otherwise provided in the related Terms Agreement,
each Class of the Underwritten Certificates so described in the Final
Prospectus, when issued, will constitute a "mortgage related security" as
such term is defined in Section 3(a)(41) of the Exchange Act for so long
as such Certificate is rated in one of the two highest rating categories
by a nationally recognized statistical rating organization.
(xx) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement and the
related Pooling and Servicing Agreement and the execution, delivery and
sale of the Underwritten Certificates have been or will be paid at or
prior to the Closing Date.
(xxi) Neither the Company nor the Trust is, and the issuance and
sale of the Underwritten Certificates in the manner contemplated by the
Final Prospectus will not cause the Company or the Trust to become,
subject to registration or regulation as an "investment company" or an
affiliate of an "investment company" under (and as defined in) the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(xxii) Immediately prior to the delivery of the Underwritten
Certificates to the Underwriters, the Company will own the Underwritten
Certificates free and clear of any lien, adverse claim, pledge,
encumbrance or other security interest, and will not have assigned to any
person any of its right, title or interest in the Underwritten
Certificates, and, upon consummation of the transactions contemplated in
this Agreement, the Company will have transferred all its right, title and
interest in the Underwritten Certificates to the Underwriters.
(xxiii) For the purposes of Section 9-103(3)(d) of the Uniform
Commercial Code as in effect in the State of New York, Schedule I hereto
sets forth the locations of the Company's offices for the filing of any
UCC-1 financing statements, and the offices of the Company where it keeps
its records concerning the Assets are also listed in said 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:
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(i) BCI has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Massachusetts
with full power and authority (corporate and other) to own its properties
and conduct its business as it is now conducted by BCI, and has qualified
to do business as a foreign corporation and is in good standing under the
laws of each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such
qualification except when the failure to so qualify would not have a
material adverse effect on BCI. BCI holds all material licenses,
certificates, franchises, and permits from all governmental authorities
necessary for the conduct of its business as it is now conducted and as
described in the Final Prospectus or as is necessary for the performance
of its obligations under any related Sales Agreement or related Pooling
and Servicing Agreement, and has received no notice of proceedings
relating to the revocation of any such license, certificate or permit,
that, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would affect materially and adversely the
conduct of the business, results of operations, net worth or condition
(financial or otherwise) of BCI.
(ii) The execution of the Agreement, the related Sales Agreement and
the related Pooling and Servicing Agreement are within the corporate power
of BCI. This Agreement has been, and as of the Closing Date the related
Sales Agreement and the related Pooling and Servicing Agreement will have
been, duly and validly authorized, executed and delivered by BCI, and
assuming the valid authorization, execution and delivery of each such
agreement by the other parties thereto, each of such agreements
constitutes a legal, valid and binding obligation of BCI, enforceable
against BCI in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and to general principles of equity,
regardless of whether such enforcement is sought in a proceeding in equity
or at law, and except that the provisions relating to indemnification of
the Underwriters may be unenforceable as against public policy.
(iii) BCI is not in violation of its articles of incorporation or
bylaws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
deed of trust, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or its properties may be
bound, which default might result in any material adverse change in the
financial condition, earnings, affairs or business of BCI or which might
materially and adversely affect the properties or assets thereof or the
ability to perform its obligations under the Agreement, each related Sales
Agreement, and the related Pooling and Servicing Agreement.
(iv) Neither the execution and delivery by BCI of this Agreement,
any related Sales Agreement or the related Pooling and 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,
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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 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
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reports to the regulatory and supervisory agencies and authorities to
which it reports, if any. For federal income tax purposes, BCI will treat
the transfer of the Assets pursuant to the related Sales Agreement as a
sale of the interest in the Assets represented by the Certificates of the
related Series not held by BCI and as an exchange of the remaining
interest in the Assets for any Certificates of such Series retained by
BCI.
(ix) For the purposes of Section 9-103(3)(d) of the Uniform
Commercial Code as in effect in the State of New York, Schedule I hereto
sets forth the locations of BCI's offices for the filing of any UCC-1
financing statements, and the offices of BCI where it keeps its records
concerning the Assets are also listed in said Schedule opposite its name
and there has been no other such location during the four months preceding
the Closing Date.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations, warranties and agreements set forth herein, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the applicable
purchase prices set forth in the related Terms Agreement (plus accrued interest
as therein set forth), Underwritten Certificates representing the respective
aggregate approximate principal amounts, notional amounts or percentage
interests, as the case may be, of the various classes of Underwritten
Certificates set forth in the Terms Agreement or opposite such Underwriter's
name in an attachment to the Terms Agreement.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Certificates shall be made at the office, on the date and at the time specified
in the related Terms Agreement, which date and time may be postponed by
agreement between the Underwriters and the Company or as provided in Section 10
hereof (such date and time of delivery and payment for the Underwritten
Certificates being herein called the "Closing Date"). Delivery of the
Underwritten Certificates shall be made to the Underwriters against payment by
the Underwriters of the purchase price thereof to or upon the order of the
Company in the type of funds specified in the Terms Agreement. The Underwritten
Certificates shall be registered in such names and in such authorized
denominations as the Underwriters may request in writing not less than two full
business days in advance of the Closing Date.
The Company agrees to have the Underwritten Certificates available for
inspection, checking and packaging by the Underwriters in New York, New York (or
such other location within the continental United States agreed to by the
Underwriters and the Company), not later than 1:00 p.m. on the business day
prior to the Closing Date.
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:
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(i) Substantially contemporaneously with the execution of the
related Terms Agreement, the Company will prepare the supplement to the
Basic Prospectus setting forth the principal amount of Underwritten
Certificates covered thereby and the material terms thereof, the initial
public offering price of the Underwritten Certificates or the manner of
offering such Underwritten Certificates, the price at which the
Underwritten Certificates are to be purchased by the Underwriters from the
Company, the selling concessions and reallowance, if any, and such other
information as the Underwriters and the Company deem appropriate in
connection with the offering of such Underwritten Certificates. The
Company will not file any amendment or supplement to the Registration
Statement or the Final Prospectus relating to the Underwritten
Certificates unless the Company has furnished the Underwriters a copy for
their review prior to filing and will not file any such proposed amendment
or supplement to which the Underwriters reasonably object. Subject to the
foregoing sentence, the Company will cause the Final Prospectus to be
filed with the Commission pursuant to Rule 424 under the Act and a report
on Form 8-K will be filed with the Commission within 15 days following the
Closing setting forth specific information concerning the Underwritten
Certificates and the related Assets and including, as an exhibit, a copy
of the related Pooling and Servicing Agreement. In addition, to the extent
that any Underwriter (i) has provided Collateral Term Sheets to the
Company that such Underwriter has provided to a prospective investor, the
Company has filed such Collateral Term Sheets as an Exhibit to Form 8-K
within two business days of its receipt thereof, (ii) has provided
Structural Term Sheets or Computational Materials to the Company that such
Underwriter has provided to a prospective investor, the Company will file
or cause to be filed with the Commission a report on Form 8-K containing
such Structural Term Sheets and Computational Materials, as soon as
reasonably practicable after the date of the Underwriting Agreement, but
in any event, not later than the date on which the Final Prospectus is
filed with the Commission pursuant to Rule 424 under the Act, or (iii) has
provided Series Term Sheets to the Company that such Underwriter has
provided to a prospective investor, the Company has filed such Series Term
Sheets as an Exhibit to Form 8-K within two business days of its receipt
thereof. The Company will promptly advise the Underwriters (A) when the
Final Prospectus shall have been filed with the Commission pursuant to
Rule 424 and the Form 8-K shall have been filed with the Commission, (B)
when any amendment to the Registration Statement shall have become
effective, (C) of any request by the Commission for any amendment of the
Registration Statement or the Final Prospectus or for any additional
information, (D) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (E) of
the receipt by the Company of any notification with respect to the
suspension of 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
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opinion of counsel to the Company or the Underwriters, the Final
Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements made therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary to
amend or supplement the Final Prospectus to comply with the Act or the
rules and regulations thereunder, the Company will promptly prepare and
file with the Commission, subject to paragraph (i) of this Section 5, an
amendment or supplement that will correct such statement or omission or an
amendment that will effect such compliance and, if such amendment or
supplement is required to be contained in a post-effective amendment of
the Registration Statement, will use its best efforts to cause such
amendment of the Registration Statement to be made effective as soon as
possible and will promptly file all reports and any definitive proxy or
information statements required to be filed by the Company pursuant to
Sections 13, 14 and 15 of the Exchange Act subsequent to the date of the
Prospectus for so long as the delivery of a Prospectus is required in
connection with the offering or sale of the Underwritten Certificates.
(iii) The Company will furnish to counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including
exhibits thereto) and each amendment thereto which shall become effective
on or prior to the Closing Date, and to each Underwriter a conformed copy
of the Registration Statement (without exhibits thereto) and each such
amendment and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Underwriters may reasonably request.
(iv) The Company will apply the net proceeds from the sale of the
Underwritten Certificates in the manner set forth in the related Final
Prospectus.
(v) The Company or BCI will pay or cause to be paid all the fees and
disbursements of the Company's and BCI's counsel and of independent
accountants for the Company and BCI relating to legal review, opinions of
counsel for the Company and BCI, audits, review of unaudited financial
statements, cold comfort review or otherwise (except for costs incurred
pursuant to Section 5(b)(v)); the costs and expenses of printing (or
otherwise reproducing) and delivering the Agreement, the related Pooling
and Servicing Agreement, the Underwritten Certificates and other related
transaction documents (including the printing and delivering of any such
documents to the Underwriters in such quantities as the Underwriters may
reasonably request); the initial fees, costs and expenses of or relating
to the Trustee under the related Pooling and Servicing Agreement and its
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 EDGAR 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
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Clearing Agency, in connection with the book-entry registration of the
Book-Entry Certificates; the reasonable expenses of the Underwriters,
including the reasonable fees and disbursements of its counsel, in
connection with the initial qualification of the Underwritten Certificates
for sale in the jurisdictions that the Underwriters may designate pursuant
to subsection (vi) below and in connection with the preparation of any
blue sky survey and legal investment survey; and the fees of rating
agencies. Except as provided in Section 7 hereof, the Underwriters shall
be responsible for paying all costs and expenses incurred by them in
connection with their purchase and sale of the Underwritten Certificates.
(vi) The Company will arrange for the qualification of the
Underwritten Certificates for sale under the laws of such jurisdictions as
the Underwriters may designate in the Terms Agreement, will maintain such
qualifications in effect so long as required for the distribution of the
Underwritten Certificates and will arrange for the determination of the
legality of the Underwritten Certificates for purchase by investors;
provided, however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(vii) So long as any Underwritten Certificates are outstanding, the
Company will cause the related Servicer or Trustee to furnish to each
Underwriter, as soon as available, a copy of (A) the annual statement of
compliance delivered by the Servicer to the Trustee under the related
Pooling and Servicing Agreement, (B) the annual independent public
accountants' servicing report furnished to the Trustee pursuant to the
related Pooling and Servicing Agreement, (C) each report, statement or
other document regarding the Underwritten Certificates filed with the
Commission under the Exchange Act or mailed to the holders of the
Underwritten Certificates, pursuant to the related Pooling and Servicing
Agreement or otherwise, (D) any reports provided by certified public
accountants pursuant to the related Pooling and Servicing Agreement
regarding the reports, statements or other documents included in clause
(C) above, and (E) from time to time, such other information concerning
the Underwritten Certificates as any Underwriter may reasonably request
and which may be furnished by the Company or the Servicer without undue
expense.
(viii) On or before the Closing Date, the Company and BCI shall
cause each of their respective books and records (including any computer
records) relating to the Contracts and Mortgage Loans to be 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.
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(ix) To the extent, if any, that the ratings provided with respect
to the Underwritten Certificates by any Rating Agency are conditional upon
the furnishing of documents or the taking of any other actions by the
Company or BCI, the Company or BCI, as the case may be, shall furnish any
such documents and take any such other actions as may be required to
satisfy such conditions. A copy of each such document shall be provided to
the Underwriters at the time it is delivered to the Rating Agencies.
(x) Without the consent of the Underwriters, the Company will not
waive any of the conditions to its obligations to purchase the Assets
pursuant to the related Sales Agreement.
(xi) If a REMIC election is to be made with respect to some or all
of the related Assets ("REMIC Assets"), the Company will make or cause to
be made all filings necessary to establish and maintain the status of such
REMIC Assets as a REMIC.
(b) Each Underwriter represents, warrants, covenants and agrees with the
Company and BCI that:
(i) It either (A) has not provided any potential investor with a
Collateral Term Sheet (that is required to be filed with the Commission
within two business days of first use under the terms of the Public
Securities Association Letter as described below), or (B) has, prior to
its first delivery of such Collateral Term Sheet to a potential investor,
delivered such Collateral Term Sheet (in hard copy) to the Company or its
counsel and received any consent required by the related Terms Agreement
and has substantially contemporaneously with its first delivery of such
Collateral Term Sheet to a potential investor, delivered such Collateral
Term Sheet (in EDGAR format) to the Company or its counsel, which
Collateral Term Sheet, if any, is attached to the related Terms Agreement
as Exhibit A.
(ii) It either (A) has not provided any potential investor with a
Structural Term Sheet, Series Term Sheets or Computational Materials, or
(B) has, prior to its first delivery of any such Structural Term Sheet,
Series Term Sheets or Computational Materials to a potential investor,
delivered such Structural Term Sheet, Series Term Sheets or Computational
Materials (in hard copy) to the Company or its counsel and received any
consent required by the related Terms Agreement and has promptly provided
any such Structural Term Sheet, Series Term Sheets or Computational
Materials (in EDGAR format) to the Company or its counsel, which
Structural Term Sheet, Series Term Sheets and Computational Materials, if
any, are attached to the related Terms Agreement as Exhibit B.
(iii) Each Collateral Term Sheet bears a legend indicating that the
information contained therein will be superseded by the 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.
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(iv) Each Structural Term Sheet, Series Term Sheet and all
Computational Materials bear a legend substantially as follows (or in such
other form as may be agreed prior to the date of the Underwriting
Agreement):
This information does not constitute either an offer to sell or a
solicitation of an offer to buy any of the securities referred to
herein. Information contained herein is confidential and provided
for information only, does not purport to be complete and should not
be relied upon in connection with any decision to purchase the
securities. This information supersedes any prior versions hereof
and will be deemed to be superseded by any subsequent versions
including, with respect to any description of the securities or the
underlying assets, the information contained in the final Prospectus
and accompanying Prospectus Supplement. Offers to sell and
solicitations of offers to buy the securities are made only by the
final Prospectus and the related Prospectus Supplement.
(v) It (at its own expense) agrees to obtain and provide to the
Company one or more accountants' letters in form and substance reasonably
satisfactory to the Underwriter and the Company relating to the Collateral
Term Sheets, Structural Term Sheets, Series Term Sheets and Computational
Materials, which accountants' letters shall be addressed to the Company.
(vi) It has not, and will not, without the prior written consent of
the Company, provide any Collateral Term Sheets, Structural Term Sheets,
Series Term Sheets or Computational Materials to any investor after the
date of the Agreement, other than as set forth in Exhibit A or Exhibit B
attached to the related Terms Agreement.
For purposes of this Agreement, Series Term Sheets, Collateral Term
Sheets and Structural Term Sheets shall have the respective meanings
assigned to them (a) in the case of Series Term Sheets, in the no-action
letter addressed to Greenwood Trust Company, Discover Card Master Trust I
dated April 5, 1996, and (b) in the case of Collateral Term Sheets and
Structural Term Sheets, in the February 13, 1995 letter of Cleary,
Gottlieb, Steen & Hamilton 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 Kidder,
Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated, and
Kidder 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.
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6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters hereunder to purchase the Underwritten Certificates of any
Series to which this Agreement applies shall be subject to the following
conditions:
(a) To the accuracy on the date hereof and on the Closing Date (as if made
on such Closing Date), and as of the date of the effectiveness of any amendment
to the Registration Statement filed prior to the Closing Date, of the
representations and warranties on the part of the Company and BCI contained
herein and to the extent that this Agreement provides that the Company and BCI
are not making certain representations and warranties, to the accuracy of the
representations and warranties provided by the parties making such
representations and warranties as of the date thereof and on the Closing Date
(as if made on such Closing Date) and as of the date of the effectiveness of any
amendment to the Registration Statement filed prior to the Closing Date.
(b) On the Closing Date, the representations and warranties made by each
of the Company and BCI in the related Sales Agreement and the related Pooling
and Servicing Agreement will be true and correct in all material respects.
(c) The Registration Statement shall have become effective and no stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and not withdrawn and no proceedings
for that purpose shall have been instituted or threatened; and the Final
Prospectus shall have been filed or mailed for filing with the Commission in
accordance with Rule 424 under the Act, and all actions required to be taken and
all filings required to be made by the Company under the Act prior to the sale
of the Underwritten Certificates shall have been duly taken or made.
(d) Certificates.
(i) The Company shall have delivered to the Underwriters a
certificate of the Company, signed by the President or any Vice President
or Assistant Vice President of the Company and dated the Closing Date, to
the effect that the signer of such certificate has carefully examined the
Registration Statement, the Final Prospectus, the Agreement, the related
Sales Agreement and the related Pooling and Servicing Agreement and that:
(A) the representations and warranties of the Company in the Agreement,
the related Sales Agreement and the related Pooling and Servicing
Agreement are true and correct in all material respects at and as of the
Closing Date with the same effect as if made on the Closing Date; (B) the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date; (C) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened; and (D)
nothing has come to such Officer's attention that would lead him or her to
believe that the Final Prospectus contains any untrue statement of a
material fact or omits to state any material fact necessary in order to
make the 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.
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(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 Morgan, Lewis &
Bockius LLP, Downs Rachlin & Martin, P.C. and such other counsel
reasonably acceptable to the Underwriters opinions of counsel, each dated
the Closing Date and satisfactory in form and substance to counsel for the
Underwriters, as to (A) various matters relating, among other things, to
the corporate status and authorization of the Company and BCI,
substantially in the form of Exhibit B-1 hereto; (B) various matters
relating to the lien of the trustee in the assets, substantially in the
form of Exhibit B-2 hereto; and (C) the applicable federal income tax
treatment of the Certificates.
(ii) The Underwriters shall have received one or more opinions from
local counsel reasonably acceptable to the Underwriters, each dated the
Closing Date satisfactory in form and substance to counsel for the
Underwriters, with respect to the Trustee's first priority perfected
interest in the Manufactured Homes located in those states where 10% or
more of the principal balance of the Contracts and/or Mortgage Loans are
located as of the Cut-off Date.
(iii) The Underwriters shall have received copies of any opinions of
counsel furnished to the Rating Agencies, together with a letter addressed
to the Underwriters to the effect that each Underwriter may rely on each
such opinion to the same extent as though such opinion was addressed to
each Underwriter as of its date, including any opinions with respect to
the non-consolidation of the Company with its affiliates and the "true
sale" of the Assets, or, in the absence of such true sale, that the
Trustee has a perfected security interest in the Assets, subject to no
prior liens or encumbrances.
(iv) The Underwriters shall have received from reputable counsel an
opinion or opinions of counsel dated the Closing Date and satisfactory in
form and substance to counsel for the Underwriters, as to the income tax
treatment of the Certificates in those states 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
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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
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Agreement (A) conform with the description thereof in the Prospectus Supplement
under the caption "The Asset Pool" or (B) conform with the information, if any,
set forth in the Company's report on Form 8-K with respect to such Assets; and
covering such other matters relating to the Trust as the Underwriters may
reasonably request.
(h) The Underwriters shall have received from the certified public
accountants of each Seller or Servicer, as applicable, a letter or letters dated
the date hereof and satisfactory in form and substance to the Underwriters and
counsel to the Underwriters to the effect that they have performed certain
specified procedures as a result of which they determined that certain
information of an accounting, financial and statistical nature set forth in the
Final Prospectus under the caption "Servicing of the Contracts" (or other
caption relating to the Servicer's servicing activities) agrees with the records
of the Servicer.
(i) If applicable, and subject to the conditions set forth in the related
Pooling and Servicing Agreement, any reserve fund to be established for the
benefit of the holders of any related Certificates shall have been established
by the Company with the Trustee and any initial deposit required to be made
therein shall have been delivered to the Trustee for deposit therein as
contemplated by the related Pooling and Servicing Agreement.
(j) The Underwriters shall have received evidence satisfactory to it and
counsel for the Underwriters that, on or before the Closing Date, UCC-1
financing statements shall have been (or, on the Closing Date, will be)
submitted for filing in the appropriate filing offices reflecting the transfer
of the interest in the Contracts and the proceeds thereof to the Trustee, on
behalf of the Trust.
(k) On the Closing Date, there shall not have occurred any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company or BCI since the date of the Terms Agreement which the
Underwriters conclude in the reasonable judgment of the Underwriters materially
impairs the investment quality of the Underwritten Certificates so as to make it
impractical or inadvisable to proceed with the public offering or the delivery
of the Underwritten Certificates as contemplated by the Final Prospectus.
(l) All proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto shall be satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, and the
Underwriters and counsel for the Underwriters shall have received such
information, certificates and documents as they may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, if
the Company is in breach of any covenants or agreements contained herein or if
any of the opinions and certificates mentioned above or elsewhere in this
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.
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7. Reimbursement of Underwriters' Expenses. If for any reason, other than
a default by the Underwriters pursuant to Section 9 hereof, the sale of the
Underwritten Certificates provided for herein is not consummated, the Company
and BCI jointly and severally agree to reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by them in
connection with their investigation, the preparation to market and the marketing
of the Underwritten Certificates, or in contemplation of the performance by them
of their obligations hereunder.
8. Indemnification and Contribution. (a) The Company and BCI, jointly and
severally, indemnify and hold harmless each Underwriter, each Underwriter's
respective officers and directors and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, as follows:
(i) against any and all losses, claims, expenses, damages or
liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Final Prospectus, or any amendment or supplement thereto,
or any related Preliminary Final Prospectus, or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements made
therein not misleading; and will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by
such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that (A) the
Company and BCI will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or omission, or alleged untrue statement or omission,
made in any of such documents (x) in reliance upon and in conformity with
any Underwriters' Information or (y) in any Collateral Term Sheet,
Structural Term Sheet, Series Term Sheet or Computational Materials,
except in the case of this clause (y) to the extent that any untrue
statement or alleged untrue statement therein results (or is alleged to
have resulted) from an error or material omission in the information
concerning the characteristics of the Assets furnished by the Company to
the Underwriters for use in the preparation of any Collateral Term Sheet,
Structural Term Sheet, Series Term Sheet and/or Computational Materials
(any such information, the "Asset Pool Information"), which error was not
superseded or corrected by the delivery to the Underwriters of corrected
written or electronic information, or for which the Company provided
written notice of such error to the Underwriters prior to the confirmation
of the sale of the applicable Certificates (any such uncorrected Asset
Pool Information an "Asset Pool Error"); and (B) such indemnity with
respect to any Preliminary Final Prospectus shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter) from whom
the person asserting any such loss, claim, damage or liability purchased
the Underwritten Certificates which are the subject thereof if such person
did not receive a copy of the Final Prospectus (or the Final Prospectus as
amended or supplemented, excluding any documents incorporated therein by
reference) at or prior to the confirmation of the sale of such
Underwritten Certificates to such person in any case where such delivery
is required by the Act and the untrue statement or omission of a material
fact contained in such Preliminary Final Prospectus was corrected in the
Final Prospectus (or the Final Prospectus as amended or supplemented,
excluding any documents incorporated
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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 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
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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 investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Underwritten
Certificates underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No
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person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Underwritten Certificates of any Class agreed
to be purchased by such Underwriter or Underwriters hereunder and such failure
to purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
portion of the Underwritten Certificates of such Class set forth opposite their
names in the Terms Agreement or in an attachment to the Terms Agreement bears to
the aggregate amount of Underwritten Certificates of such Class set forth
opposite the names of the remaining Underwriters) the Underwritten Certificates
of such Class which the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that in the event that the amount of
Underwritten Certificates of such Class which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Underwritten Certificates of such Class as set forth in the Final
Prospectus, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Underwritten
Certificates of such Class, and if such non-defaulting Underwriters do not
purchase all the Underwritten Certificates of such Class, this Agreement will
terminate without liability to any non-defaulting Underwriter or the Company. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section 9. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Company prior to
delivery of and payment for all Underwritten Certificates if prior to such time
(i) trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the over-the-counter market shall have been suspended or
limited, or minimum approximate prices shall have been established on any such
Exchange or market; (ii) a banking moratorium shall have been declared by either
federal or New York State authorities; (iii) there shall have occurred any
outbreak or escalation of hostilities or other calamity or crisis, the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Underwriters, impracticable or inadvisable to market the
Underwritten Certificates; or (iv) there has been, since the date of the Terms
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
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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 1600 Mountain View Drive, Colchester, Vermont 06446,
Attention: President; or, if sent to BCI, will be mailed, delivered or
telegraphed and confirmed to it at 12735 Gran Bay Parkway West, Suite 1000,
Jacksonville, Florida 32258, Attention: Greg Giesen.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the jurisdiction as may be specified in the Terms
Agreement. The Terms Agreement may be executed in any number of counterparts,
each of which shall for all purposes be deemed to be an original and all of
which shall together constitute but one and the same instrument.
15. Miscellaneous. Time shall be of the essence of this Agreement. This
Agreement supersedes all prior or contemporaneous agreements and understandings
relating to the subject matter hereof. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
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SCHEDULE I
Locations of Offices
Bombardier Capital Mortgage 1600 Mountain View Drive
Securitization Corporation Colchester, Vermont 05446
12735 Gran Bay Parkway West
Suite 1000
Jacksonville, Florida 32258
Bombardier Capital Inc. 1600 Mountain View Drive
Colchester, Vermont 05446
12735 Gran Bay Parkway West
Suite 1000
Jacksonville, Florida 05446
Locations of Records
Bombardier Capital Mortgage 12735 Gran Bay Parkway West
Securitization Corporation Suite 1000
Jacksonville, Florida 32258
Bombardier Capital Inc. 12735 Gran Bay Parkway West
Suite 1000
Jacksonville, Florida 32258
I-1
27
EXHIBIT A
Bombardier Capital Mortgage Securitization Corporation
Pass-Through Certificates
FORM OF TERMS AGREEMENT
Dated: __________, 199__
To: Bombardier Capital Mortgage Securitization Corporation (the "Company")
Bombardier Capital Inc. ("BCI")
Re: Underwriting Agreement Standard Provisions dated
July 1998 (the "Standard Provisions")
Series
Designation: Pass-Through Certificates, Series 199___-___, Classes _____
__________ (collectively, the "Certificates"). The Classes
__________ Certificates are collectively referred to herein as
the "Underwritten Certificates."
UNDERWRITING AGREEMENT: Subject to the terms and conditions set forth
herein and to the terms of the Standard Provisions, which are incorporated by
reference herein, the Company hereby agrees to issue and sell to __________ (the
"Underwriter"), and the Underwriter hereby agrees to purchase from the Company,
on __________, 199___, the Underwritten Securities at the purchase price and on
the terms set forth below; provided, however, that the obligations of the
Underwriter are subject to: (i) receipt by the Company of the ratings on the
Certificates as set forth herein, (ii) receipt by the Underwriter of the Sales
Agreement (the "Sales Agreement"), dated as of ____________, 199__, by and
between the Company and BCI, and the Pooling and Servicing Agreement (as defined
below), each being in form and substance satisfactory to the Underwriter.
The Certificates will be issued by BCMSC Securitization Trust 199___-___
pursuant to a Pooling and Servicing Agreement, to be dated as of
__________,199___ among the Company, BCI, as servicer (the "Servicer") and
__________, as Trustee (the "Trustee"), which incorporates by reference the
Company's Standard Terms to Pooling and Servicing Agreement (July 1998 Edition)
(collectively, the "Pooling and Servicing Agreement"). The Certificates will
represent in the aggregate the entire beneficial ownership interest in the
assets of the Trust which will consist primarily of retail installment sales
contracts [and/or] installment sales agreements secured by units of manufactured
housing ("Manufactured Homes") [and] contracts secured by liens on the real
estate on which the related Manufactured Homes are located (collectively, the
"Contracts") with original terms to maturity not exceeding 30 years [and/or]
one- to four-family, fully amortizing, [fixed] [adjustable] rate, first-lien
residential mortgage loans (the "Mortgage Loans" and, together with the
Contracts, the "Assets") with original terms to maturity not exceeding 30 years,
in each case having the characteristics described in the Prospectus Supplement.
A-1
28
The Company and the Servicer specifically covenant to make available on
the Closing Date for sale, transfer and assignment to the Trust, Contracts and
Mortgage Loans having the characteristics described in the Prospectus
Supplement; provided, however, that there may be nonmaterial variances from the
description of the Contracts and Mortgage Loans in the Prospectus Supplement and
the Contracts and Mortgage Loans actually delivered on the Closing Date.
REGISTRATION STATEMENT: References in the Standard Provisions to the
Registration Statement shall be deemed to include registration statement No.
333-40113.
INITIAL AGGREGATE SCHEDULE PRINCIPAL BALANCE OF ASSETS: Approximately
$___________.
CUT-OFF DATE: ________________, 199__.
TERMS OF THE UNDERWRITTEN CERTIFICATES:
Initial
Principal Purchase
Class Balance Pass-Through Price
Designation (approximate)(1) Rate Rating
[Specify
Rating Agency
and Rating]
[(1) Subject to a permitted variance of plus or minus 5% depending on the
Contracts and Mortgage Loans actually acquired by the Trust.]
SUBORDINATION FEATURES: Losses and Shortfalls on the Contracts and
Mortgage Loans will be allocated among the Certificates as described in the
Prospectus Supplement. [Except as otherwise specified in the Prospectus
Supplement, the Class ___Certificates are subordinated to the rights of the
Class ___ Certificates for purposes of the allocation of Realized Losses on the
Contracts and Mortgage Loans, as described in the Prospectus Supplement.]
RESERVE FUNDS:
DISTRIBUTION DATES: Each Distribution Date shall be the [____] day of
each month, or if such day is not a business day, on the next succeeding
business day, commencing in __________ 199__.
[REMIC ELECTION: An election will be made to treat some or all of the
assets of the Trust as a real estate mortgage investment conduit for federal
income tax purposes (the "REMIC"). The Classes __________ Certificates will be
designated as "regular interests" in the REMIC and the Class R Certificates will
be designated as the "residual interest" in the REMIC.]
A-2
29
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 of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York
10178-0060. [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
A-3
30
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:
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
Morgan, Lewis & 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.
A-4
31
[NAME OF UNDERWRITER]
By:
----------------------------------
Name:
Title:
Accepted and Acknowledged
As of the Date First
Above Written:
BOMBARDIER CAPITAL MORTGAGE SECURITIZATION CORPORATION
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
BOMBARDIER CAPITAL INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
A-5
32
EXHIBIT B-1
____________, 199_
[Name and Address
of Underwriter(s)]
Bombardier Capital Mortgage Securitization Corporation
Pass-Through Certificates, Series
Ladies and Gentlemen:
We have acted as special counsel to Bombardier Capital Mortgage
Securitization Corporation, a Vermont corporation ("BCMSC"), in connection with
the formation by it of BCMSC Securitization Trust 199_-_ (the "Trust"), which
consists primarily of a pool of retail installment sales contracts [and/or]
installment sales agreements secured by units of manufactured housing
("Manufactured Homes"), [and] contracts secured by liens on the real estate on
which the related Manufactured Homes are located (collectively, the "Contracts")
[and/or] mortgage loans (the "Mortgage Loans" and, together with the Contracts,
the "Assets") secured by first liens on the real estate to which the related
Manufactured Homes are deemed permanently affixed (the "Mortgaged Properties").
The Trust was organized pursuant to a Pooling and Servicing Agreement (the
"Series Agreement"), dated as of ____________ 1, 199_, by and among BCMSC,
Bombardier Capital Inc. ("BCI") in its capacity as servicer of the Assets (the
"Servicer"), and __________, as trustee (the "Trustee"), which incorporates by
reference BCMSC's Standard Terms to Pooling and Servicing Agreement (July 1998
Edition) (together with the Series Agreement, the "Pooling and Servicing
Agreement"). We also have acted as special counsel to BCI in connection with its
role as Servicer for the Trust and to BCI (the "Seller"), as seller of the
Assets to BCMSC. Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
The Trust is issuing today __________ Classes of certificates
(collectively, the "Certificates"), which Classes are described in the Pooling
and Servicing Agreement. The Classes ___ Certificates (collectively, the
"Offered Certificates") are being sold to you today pursuant to a terms
agreement, dated as of _______________, 199_, among BCMSC, BCI and each of you
(the "Terms Agreement"). This opinion is furnished to you in accordance with
Section 6(e) (i) of BCMSC's Underwriting Agreement Standard Provisions, July
1998 (the "Standard Provisions" ), the terms of which are incorporated by
reference into the Terms Agreement (the Terms Agreement together with the
Standard Provisions being referred to herein collectively as the "Underwriting
Agreement").
In rendering the opinions expressed below, we have made such legal and
factual examinations and inquiries as we have deemed necessary or advisable for
the purpose of rendering this opinion, including but not limited to the
examination of the following:
33
[Name of Underwriter(s)]
____________, 19__
Page 2
a. BCMSC's registration statement on Form S-3 (No. 333-__________),
as amended (the "Registration Statement"), filed under the Securities Act
of 1933, as amended (the "Act"), and the Prospectus, dated _____________,
199_ (the "Base Prospectus"), and the Prospectus Supplement, dated
__________, 199_ (the "Prospectus Supplement," and collectively with the
Base Prospectus, the "Prospectus"), all relating to the Offered
Certificates;
b. The Pooling and Servicing Agreement;
c. The form of the Certificate evidencing each Class of the
Certificates;
d. The sales agreement, dated as of ____________ 1, 199_ (the "Sales
Agreement"), between the Seller and BCMSC pursuant to which BCMSC acquired
the Assets;
e. The Underwriting Agreement (together with the Sales Agreement
and the Pooling and Servicing Agreement, the "Agreements");
f. The Articles of Incorporation, as amended, and Bylaws of each of
BCMSC and BCI, together with a certificate of existence from the State of
Vermont and the State of Massachusetts with respect to BCMSC and BCI,
respectively; and
g. Resolutions of each of BCMSC and BCI pertaining to the subject
transactions, each certified by an officer of BCMSC and BCI, as
appropriate.
In rendering the opinions expressed below, we have assumed (i) the
authenticity of all documents submitted to us as originals, (ii) the conformity
to the originals of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such copies, (iii) the
genuineness of signatures not witnessed by us, (iv) the legal capacity of
natural persons and (v) the due authorization, execution and delivery of all
documents by all parties thereto and the validity and binding effect thereof
(other than the authorization, execution and delivery of documents by BCMSC and
BCI, and the validity and binding effect thereof upon BCMSC and BCI, to the
extent we express our opinion on such subjects below).
In addition, we have relied, as to factual matters, upon representations
included in the Agreements and other agreements and documents delivered at the
closing, and upon certificates of officers of BCMSC, BCI and the Trustee, and
upon certificates of public officials. Whenever the phrase "to our knowledge" or
"known to us" is used in this opinion letter, it refers to the actual knowledge
of the attorneys of this firm involved in the representation of BCMSC and BCI in
connection with the transactions described herein without independent
investigation.
The obligations of the parties with respect to the Agreements are subject,
with respect to their enforceability, to the provisions of federal and other
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
relating to or affecting the enforcement of creditors'
B-2
34
[Name of Underwriter(s)]
____________, 19__
Page 3
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 the validity of such documents.
We do not purport to express an opinion on any laws other than those of
the States of [Vermont, Massachusetts] and New York and the United States of
America.
I.
Based upon the foregoing and such other documents and information a review
of which we have considered necessary for the purposes hereof, and subject to
all the assumptions and qualifications set forth herein, we are of the opinion
that:
(1) Each of BCMSC and BCI has been duly organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation.
(2) Each of BCMSC and BCI has the corporate power and corporate
authority to carry on its business as described in the Prospectus and to
own and operate its properties in connection therewith.
(3) Each of BCMSC and BCI is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and each has the corporate power to own its assets and to
transact the business in which it is currently engaged and to perform
their respective obligations under each of the Agreements to which it is a
party. Each of BCMSC and BCI is qualified to do business as a foreign
corporation and each is in good standing in each jurisdiction in which the
character of the business transacted by it or properties owned or leased
by it requires such qualification and in which the failure so to qualify
would have a material adverse effect on the business, properties, assets,
or condition (financial or other) of BCMSC and BCI, respectively or on
their ability to perform their respective obligations under the
Agreements.
(4) Each of the Agreements to which BCMSC and BCI is a party has
been duly authorized, executed and delivered by BCMSC and BCI, as
applicable, and each constitutes a legal, valid and binding obligation of,
each of BCMSC and BCI, enforceable against each of BCMSC and BCI in
accordance with its terms, except that (A) such enforcement may be subject
to bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally
and (B) such enforcement may be limited by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law).
(5) The execution and delivery by each of BCMSC and BCI of each of
the Agreements to which it is a party, the performance of their respective
obligations thereunder and the signing of the Registration Statement by
BCMSC are within the
B-3
35
[Name of Underwriter(s)]
____________, 19__
Page 4
corporate power of BCMSC and BCI, as applicable, and have been duly
authorized by all necessary corporate action on the part of BCMSC and BCI,
as applicable; and neither the issue and sale of the Certificates, nor the
consummation of the transactions contemplated by the Agreements nor the
fulfillment of the terms thereof will, to the best of our knowledge after
due inquiry, conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or asset of BCMSC and BCI pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which BCMSC and BCI is a party or by which either may be bound or to which
the property or assets of BCMSC and BCI are subject, nor will such action
result in any violation of the provisions of the certificate of
incorporation or bylaws of BCMSC and BCI or, to the best of our knowledge
after due inquiry, any law, administrative regulation or administrative or
court decree of any state or federal courts, regulatory bodies, other
body, governmental entity or arbitrator having jurisdiction over BCMSC and
BCI.
(6) To the best of our knowledge, there is no investigation, action,
litigation or administrative proceeding of or before any court, tribunal
or governmental body currently pending or threatened against BCMSC or BCI
(a) asserting the invalidity of the Agreements or the Certificates, (b)
seeking to prevent the consummation of any of the transactions
contemplated by the Agreements, (c) that would be likely to impair
materially the ability of BCMSC or BCI or the Seller, as the case may be,
to perform its obligations under any of the Agreements or to affect
materially and adversely the validity or enforceability of any of the
Agreements or the Certificates, or (d) that could reasonably be expected
to result in any material adverse change in the business, operations,
financial conditions, properties or assets of BCMSC or BCI, or the ability
of BCMSC or BCI to carry on its business substantially as it is now
conducted.
(7) Upon due execution and authentication by the Trustee of each
Class of the Offered Certificates in accordance with the terms of the
Pooling and Servicing Agreement, and upon payment for the Offered
Certificates as provided for in the Underwriting Agreement, the Offered
Certificates will be validly issued and outstanding and the holders
thereof will be entitled to the benefits provided to Certificateholders
pursuant to the Pooling and Servicing Agreement.
[(8) If Mortgage Loans are included as Assets of the related Trust]
(a) Assuming that the transfer of the Mortgage Notes and the applicable
Mortgages to the Trustee as contemplated by the Pooling and Servicing
Agreement is a sale and that the Mortgage Notes have been duly endorsed
and transferred to the Trustee as provided in the Sales Agreement, the
Trustee will obtain, under the laws of ____________, all of the respective
sellers' rights under the applicable Mortgages (including whatever right
the applicable sellers have to require the trustee under the Mortgage to
foreclose thereunder) when such Mortgage 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
B-4
36
[Name of Underwriter(s)]
____________, 19__
Page 5
a third party, the deed of trust is also automatically assigned.
Accordingly, the laws of ____________ do not require the recordation of an
assignment or similar instrument as to the Mortgages in the official land
records to transfer to the Trustee the rights of the applicable sellers
in, to and under the Mortgages.
[(b) If the transfer to the Trustee of Mortgage Notes and the
applicable Mortgages is deemed to be a grant of a security interest
therein to the Trustee and assuming that the Mortgage Notes have been duly
endorsed and delivered to the Trustee as provided in the Sales Agreement,
execution and recordation of assignments or similar instruments as to the
Mortgages are not required under the laws of __________ to create or
perfect such a security interest in the Mortgage Notes and assuming that
the Mortgage Notes have been duly endorsed and delivered to the Trustee as
provided in the Sales Agreement, the beneficiary's rights under the
applicable Mortgages will inure to the Trustee when the Trustee becomes
the owner and holder of the Mortgage Notes after proper realization upon
the Trustee's security interest in such Mortgage Notes.]
(9) No consent, approval, authorization or order of, registration or
filing with, or notice to, any court or governmental agency or body or
official is required under the laws of the United States of America or the
States of [Vermont and Massachusetts] for the consummation by each of
BCMSC and BCI of the transactions contemplated by the Agreements to which
it is a party, except such as may be required under state securities or
"blue sky" laws of any jurisdiction in connection with the purchase and
distribution by each Underwriter of the Offered Certificates.
(10) Neither BCMSC nor the Trust established pursuant to the Pooling
and Servicing Agreement is required, as a result of the offer and sale of
the Offered Certificates as contemplated by the Underwriting Agreement, to
be registered under the Investment Company Act of 1940, as amended.
(11) The Registration Statement has become effective under the Act,
and, to our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act.
(12) The statements in the Base Prospectus under the captions
"Description of the Certificates," "The Pooling and Servicing Agreements,"
"ERISA Considerations," "Federal Income Tax Consequences" and "State Tax
Considerations" and the statements in the Prospectus Supplement under the
captions "The Trust," "Description of the Offered Certificates," "ERISA
Considerations" and "Federal Income Tax Consequences," insofar as such
statements constitute a summary of the documents referred to therein,
fairly summarize such documents and present the information called for by
the Act and the rules and regulations promulgated under the Act.
B-5
37
[Name of Underwriter(s)]
____________, 19__
Page 6
II.
We have participated in various conferences with the officers and
directors of BCMSC and its independent certified public accountants. In some
conferences you and your counsel also participated. At those conferences, the
contents of the Registration Statement and Prospectus were discussed and
revised. Since the dates of those conferences, we have inquired of certain
officers whether there has been any material change in the affairs of BCMSC.
Because of the inherent limitations in the independent verification of
factual matters, and the character of determinations involved in the preparation
of registration statements under the Act, we are not passing upon, and do not
assume any responsibility for, and make no representation that we have
independently verified, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except as
specifically set forth in paragraph 12 of Part I of our opinion above. Also, we
do not express any opinion or belief as to the financial statements or other
financial or statistical information contained or incorporated by reference into
the Registration Statement. However, subject to the foregoing, on the basis of
our participation in the conferences referred to above and our examination of
the documents referred to herein, we advise you that: (a) in our opinion, the
Registration Statement, when it became effective, and the Prospectus, as of its
date and as of the date hereof (other than the financial statements, schedules
and other financial data included therein or excluded therefrom or included in
or excluded from the exhibits to the Registration Statement or incorporated
therein by reference, as to which we express no opinion) comply as to form in
all material respects with the requirements of the Act and the rules and
regulations promulgated thereunder; and (b) to our knowledge, there are no
contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required. We note that
the Pooling and Servicing Agreement will be filed as an exhibit to a Current
Report of BCMSC on Form 8-K within 15 days after the date hereof. Further,
nothing has come to our attention that leads us to believe that the Registration
Statement, when it became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements made therein not misleading; or that
the Prospectus, as of its date and as of the date hereof, contained or contains
any untrue statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not
misleading; except that we make no statement with respect to the financial
statements or other financial or statistical data included therein or
incorporated therein by reference, including, but not limited to, the
information relating to the Assets, under the heading "The Asset Pool" and the
information relating to the Assets and financial data under the headings
"Maturity and Prepayment Considerations" and "Yield on the Offered Certificates"
in the Prospectus Supplement and the information set forth in the Prospectus
under the headings "Maturity and Prepayment Considerations" and "Yield
Considerations."
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)
B-6
38
[Name of Underwriter(s)]
____________, 19__
Page 7
[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
39
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/or]
installment sales agreements secured by units of manufactured housing
("Manufactured Homes") [and] contracts secured by liens on the real estate on
which the related Manufactured Homes are located (collectively, the "Contracts")
[and/or] mortgage loans (the "Mortgage Loans," and, together with the Contracts,
the "Assets") secured by first liens the real estate to which the related
Manufactured Homes are deemed permanently affixed (the "Mortgaged Properties").
The Trust was organized pursuant to a Pooling and Servicing Agreement (the
"Series Agreement"), dated as of _____________ __, 199_, by and among the
Company, Bombardier Capital Inc. ("BCI") in its capacity as servicer of the
Contracts (the "Servicer"), and __________, as trustee (the "Trustee"). The
Series Agreement incorporates by reference the Company's Standard Terms to
Pooling and Servicing Agreement (July 1998 Edition) (the "Standard Terms," and,
together with the Series Agreement, the "Pooling and Servicing Agreement"). We
also have acted as special counsel to BCI in connection with its role as
Servicer for the Trust. Capitalized terms used herein but not defined herein
shall have the meanings assigned to them in the Pooling and Servicing Agreement.
The Trust is issuing today number classes of certificates (collectively,
the "Certificates"), which Classes are described in the Pooling and Servicing
Agreement. The Classes __________ Certificates (the "Underwritten Certificates")
are being sold to you today pursuant to a terms agreement (the "Terms
Agreement") dated _________ __, 19__, among you (the "Underwriter"), the Company
and BCI. This opinion is furnished to you in accordance with Section 6(e) of the
Company's Underwriting Agreement Standard Provisions (July 1998) (the "Standard
Provisions"), the terms of which are incorporated by reference into the Terms
Agreement (the Terms Agreement together with the Standard Provisions being
referred to collectively as the "Underwriting Agreement" ).
40
[Name of Underwriter(s)]
__________ __, 19__
Page 2
In rendering the opinions expressed below, we have examined the following
documents:
(a) The Pooling and Servicing Agreement;
(b) The Sales Agreement, dated as of __________ __, 19__ (the
"Sales Agreement"), by and between BCI, as seller, and the
Company, as purchaser, pursuant to which the Company acquired
the Assets;
(c) Financing statements (the "Financing Statements") (1)
relating to the Contracts and the payments thereon and
proceeds thereof, naming [BCI] as debtor, the Company as
secured party and the Trustee as assignee, (2) relating to
the Assets and the payments thereon and proceeds thereof,
naming [the Company] as debtor and the Trustee as Secured
Party, and (3) relating to the Assets and the payments
thereon and proceeds thereof, the Company's rights under
the Sales Agreement and to the [specify any reserve or
other funds pledged or conveyed to the Trustee by the
Company], naming the Company as debtor and the Trustee as
secured party; and
(d) The Underwriting Agreement (together with the Pooling and
Servicing Agreement and the Sales Agreement, the
"Agreements").
For the purposes of this opinion:
(i) the ["Florida/Vermont UCC"] means the Uniform
Commercial Code as in effect in the State of
[Florida/Vermont];
(ii) "Money" means "money" as defined in Section
1-201 of the applicable UCC;
(iii) "Instruments" means "instruments" as defined
in Section [9-105(1)(i)] of the applicable UCC;
(iv) "General Intangibles" means "general intangibles"
as defined in Section [9-106] of the applicable UCC; and
(v) "Chattel Paper" means "chattel paper" as defined in
Section [9-105(1)(b)] of the applicable UCC.
In rendering the opinions expressed below, we have assumed (i) the
authenticity of all documents submitted to us as originals, (ii) the conformity
to the originals of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such copies, (iii) the
genuineness of signatures not witnessed by us, (iv) the legal capacity of
natural
B-2-2
41
[Name of Underwriter(s)]
__________ __, 19__
Page 3
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 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 Prentice-Hall Legal &
Financial Services)] to review the UCC records maintained by the ______________
Secretary of State and the Register of Deeds of ________________, _____________
with respect to financing statements naming BCI or the Company, as debtor. Our
opinion expressed in numbered paragraph 3 below is rendered in reliance upon the
results of that search and upon a certificate of officers of the respective
companies relating thereto, dated the date hereof (the "Officers' Certificate"),
and is based upon the assumptions (i) that no financing statements were filed
against any of the aforementioned companies as of the dates through which the
respective related search reports are current, which is no earlier than ________
___, 19__, other than those reflected in such search reports, and (ii) that no
financing statements have been filed against such companies since _________ ___,
19__. We assume no liability for the search reports. Each of BCI and the Company
has represented that the Assets formerly owned by it are subject to no liens,
claims or encumbrances having priority over the Trustee's lien thereon. We do
not purport to express an opinion on any laws other than those of the [State of
Vermont/Florida] and the United States of America.
Based upon the foregoing and such other documents and information a review
of which we have considered necessary for the purposes hereof, and subject to
all other assumptions and qualifications set forth herein, we are of the opinion
that:
B-2-3
42
[Name of Underwriter(s)]
__________ __, 19__
Page 4
1. In the event that either the transfer of the Assets by [BCI] to
the Company or the transfer of the Assets by the Company to the Trustee is
found not to be a "true sale," (a) BCI (i) has granted to the Company a
valid security interest under Article 9 of the [Vermont/Florida] UCC in
the Contracts and the Mortgage Notes, and in the proceeds thereof to the
extent provided in Section [9-306] of the [Vermont/Florida] UCC, and (ii)
has assigned to the Company a security interest in the Manufactured Homes,
and (b) the Company (i) has either granted or assigned to the Trustee a
valid security interest under Article 9 of the [Vermont/Florida] UCC in
the Contracts [and the Mortgage Notes], and in the proceeds thereof to the
extent provided in Section [9-306] of the [Vermont/Florida] UCC, and (ii)
has assigned to the Trustee a security interest in the Manufactured Homes
securing the Contracts.
[2. [If Reserve Fund included] The Company has granted to the
Trustee a valid security interest in the Money and Instruments
comprising the [specify any fund pledged to the Trustee], and in the
proceeds thereof to the extent provided in Section [9-306] of the
[Vermont/Florida] UCC. ]
3. The Financing Statements are in appropriate form for filing in
the office of the [Vermont/Florida] Secretary of State and in the office
of the Register of Deeds of ____________________, and the due indexing of
the Financing Statements among the UCC financing statement records in the
office of the [Vermont/Florida] Secretary of State and in the office of
the Register of Deeds of __________________ will be sufficient to perfect
the security interests created by the Sales Agreement and by the Pooling
and Servicing Agreement in the Contracts and in the proceeds thereof (to
the extent a security interest in proceeds of the Contracts was created as
provided in Section [9-306] of the [Vermont/Florida] UCC) [and in that
portion of the specify any fund pledged by the Company to the Trustee
consisting of those items and types of collateral a security interest in
which may be perfected by filing a financing statement under the
[Vermont/Florida] UCC]. Upon perfection of the Company's security interest
in the Contracts and of the Trustee's security interest in the Contracts,
no other security interest will be equal or prior to the Trustee's
security interest in the Contracts and in the proceeds thereof to the
extent provided in Section [9-306] of the [Vermont/Florida] UCC.
[4. [If Assets include Mortgage Loans] The security interest of the
Trustee in the Mortgage Notes and in those portions of the specify any
fund to be pledged by the Company to the Trustee that constitute Money or
Instruments and in the proceeds thereof (but only to the extent provided
in Section [9-306] of the [applicable] UCC) will be perfected upon the
delivery of the Mortgage Notes and such Money or Instruments to the
Trustee. Upon such delivery, no other security interest will be equal or
prior to the security interest of the Trustee in the Mortgage Notes and
such Money or Instruments. No opinion is expressed with respect to the
continued perfection of such security interest in
B-2-4
43
[Name of Underwriter(s)]
__________ __, 19__
Page 5
the Mortgage Notes or such Money 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 "certified
security" as defined in Section [8-102] of the applicable UCC);]
(e) we have assumed, based on the certifications in the Officer's
Certificate, that each Contract validly created a security interest in BCI
in the underlying Manufactured Home, which security interest attached;
(f) we have assumed (i) that payment for the Offered Certificates
has been made in accordance with the Underwriting Agreement and (ii) that
[_________________] has made payment for the [Class X and Class R]
Certificates to the Company in accordance with the agreement between the
Company and [____] providing for such purchase and that the [Class X and
Class R] Certificates have been executed and authenticated by the Trustee
and delivered to [_____] or its designee;
(g) we have assumed that each Contract [and Mortgage Note] is in one
of the forms supplied by BCI in the Officers' Certificate;
(h) we have assumed, based upon the certifications in the Officer's
Certificate, the due execution of each endorsement of each [Mortgage
Note,] of an assignment or assignments of the Contracts [and of an
assignment in recordable form of each Mortgage] (an "Assignment"), in each
case from the originators thereof through any intervening
B-2-5
44
[Name of Underwriter(s)]
__________ __, 19__
Page 6
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:
(a) that BCI has the full right to sell each Asset to the Company
and that the Company has the full right to sell each Asset to the Trustee,
and that, upon authorization, execution and delivery of the Sales
Agreement by all parties thereto, the Company will be the sole beneficial
owner of each Asset free and clear of liens, encumbrances (except the lien
created by the Pooling and Servicing Agreement), and that the Company has
not assigned any interest or participation in any Asset other than to the
Trustee that has not been released;
B-2-6
45
[Name of Underwriter(s)]
__________ __, 19__
Page 7
(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. Section 3713);
(2) the priority of any security interest as against any liens,
claims, or other interests that arise by operation of law and do not
require any filing or similar action in order to take priority over a
prior perfected security interest under the UCC of any relevant
jurisdiction;
(3) the priority of any security interest as against the rights of
any purchaser of any of the Assets who gives new value for and takes
possession of such Assets in the ordinary course of his business without
knowledge that any such Asset is subject to a security interest as
described in Section [9-308] of the applicable UCC or against a purchaser
of any of the Assets (including a secured party) who could be afforded
priority under Section [9-309] of the applicable UCC;
(4) the priority of any security interest as against a lien creditor
(as defined in Section [9-301(3)] of the applicable UCC) who attached or
levied prior to the perfection of the security interest of the Trustee;
(5) the priority of any security interest as against a lien creditor
to the extent the security interest purports to secure future advances or
other extensions of credit subsequent to the date hereof other than
advances made pursuant to commitments existing on the date of attachment
by such lien creditor;
B-2-7
46
[Name of Underwriter(s)]
__________ __, 19__
Page 8
(6) the priority of any security interest in collateral constituting
proceeds of collateral subject to a third party's security interest;
(7) the priority of any security interest as against another secured
party in possession of the related collateral prior to the perfection of
the Trustee's security interest through filing of the Financing
Statements;
(8) the priority of any security interest as against a purchase
money security interest that could be perfected without possession
pursuant to Section [8-313(1)(h)] of the applicable UCC or that could be
afforded priority under Section [9-312(4)] of the applicable UCC;
(9) the priority of any security interest as against the rights of
any person against whom the transfer to BCI, the Company or the Trustee
was "wrongful" within the meaning of Section [8-315] of the applicable
UCC;
(10) the priority of any security interest as against a security
interest perfected under the laws of another jurisdiction to the extent
the collateral subject to such security interest was located in such
jurisdiction within four months prior to the perfection of the security
interest of the Company or the Trustee;
(11) the priority of any security interest as against any person who
has entered into a subordination agreement or intercreditor agreement with
the Company or the Trustee with respect to any of the collateral covered
by the opinions set forth above; and
(12) whether or to what extent particular items included in the
[specify any fund pledged to Trustee] may constitute Money or Instruments.
With respect to the Financing Statements, we call your attention to the
fact that the effectiveness of the Financing Statements will terminate (i)
unless appropriate continuation statements are filed within the time period
prescribed by relevant state law; (ii) with respect to collateral acquired more
than four months after any name change by the debtor, unless new appropriate
financing statements indicating the new name of the debtor are properly filed
before the expiration of four months after the debtor changes its name; and
(iii) four months after any relocation by the debtor of its chief executive
office or principal place of business to a new jurisdiction, unless such
security interest is perfected in such new jurisdiction within such time.
[We do not purport to express an opinion on any laws other than those of
the ________________________, ___________________________ and the United States
of America, except to the extent that the opinion expressed in numbered
paragraph 4 above relates to matters of ______________ law.]
B-2-8
47
[Name of Underwriter(s)]
__________ __, 19__
Page 9
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