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Exhibit 1.1
DRAFT
BOMBARDIER RECEIVABLES MASTER TRUST I
SERIES 2000-1, ASSET BACKED CERTIFICATES
BOMBARDIER CREDIT RECEIVABLES CORPORATION
(Depositor)
BOMBARDIER CAPITAL INC.
(Servicer)
UNDERWRITING AGREEMENT
September __, 2000
J.P. Morgan Securities Inc.
As Representative of the Several
Underwriters Listed in Schedule I
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Ladies and Gentlemen:
Bombardier Credit Receivables Corporation, a Delaware corporation
("BCRC"), proposes to sell to the several Underwriters listed in Schedule I
hereto (the "Underwriters") for whom you are acting as the representative (the
"Representative") [ $___________ ] principal amount of its Floating Rate Class A
Asset Backed Certificates, Series 2000-1 (the "Class A Certificates") and
[$____________ ] principal amount of its Floating Rate Class B Asset Backed
Certificates, Series 2000-1 (the "Class B Certificates," and together with the
Class A Certificates, the "Certificates") of the Bombardier Receivables Master
Trust I (the "Trust"). Each Certificate will represent a fractional undivided
interest in the Trust. The assets of the Trust currently include amounts due on
a pool of revolving financing arrangements with certain dealers located in the
United States to finance such dealers' consumer, recreational and commercial
products inventory and may in the future, include, among other things, certain
amounts due on a pool of revolving financing arrangements with certain dealers,
manufacturers or distributors located in the United States to finance the
working capital needs of such parties or the production or manufacture of or the
carrying in inventory of consumer, recreational and commercial product inventory
(collectively, the "Receivables"). The Receivables have been sold by Bombardier
Capital Inc., a Massachusetts corporation ("BCI"), to BCRC pursuant to a
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Receivables Purchase Agreement dated as of January 1, 1994 (as amended by
Amendment Number 1 dated as of January 1, 1997 and as otherwise supplemented and
amended from time to time, the "Receivables Purchase Agreement"), between BCI
and BCRC, and subsequently transferred to the Trust by BCRC pursuant to a
Pooling and Servicing Agreement dated as of January 1, 1994 (as amended by
Amendment Number 1 dated as of January 1, 1997, Amendment No. 2 dated as of
October 19, 1999 and Amendment No. 3 dated as of October 19, 1999 and as
otherwise supplemented and amended from time to time, the "Pooling and Servicing
Agreement"), among BCRC, BCI, as the Servicer, and Bankers Trust Company, as
Trustee (the "Trustee"). Payments in respect of the Class B Certificates are, to
the extent specified in the Supplement (as defined below), subordinated to the
rights of the holders of the Class A Certificates. The Certificates will be
issued pursuant to the provisions of the Pooling and Servicing Agreement and the
Series 2000-1 Supplement to Pooling and Servicing Agreement to be dated as of
September __, 2000 (the "Supplement"), between BCRC, BCI, as the Servicer, and
Bankers Trust Company, as Trustee.
BCRC has prepared and filed with the Securities and Exchange Commission
(the "Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"), a registration statement on Form S-1,
including a form of prospectus, relating to the Certificates. The registration
statement as amended at the time when it shall become effective, or if a
post-effective amendment is filed with respect thereto, as amended by such
post-effective amendment at the time of its effectiveness, including in each
case information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act, is
referred to in this Underwriting Agreement (this "Agreement") as the
"Registration Statement," and the prospectus in the form in which it was or will
be most recently filed with the Commission pursuant to Rule 424(b) of the rules
and regulations of the Commission is referred to in this Agreement as the
"Prospectus."
When used in this Agreement, "Basic Documents" shall mean the Pooling
and Servicing Agreement, the Certificates, the Supplement and the Receivables
Purchase Agreement. To the extent not defined herein, capitalized terms used
herein have the meanings assigned to such terms in the Pooling and Servicing
Agreement.
Each of BCRC and BCI hereby agrees with the Underwriters as follows:
1. Purchase and Sale. BCRC agrees to sell the Certificates to the
several Underwriters as hereinafter provided, and each Underwriter, upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from BCRC the respective principal amount of the Class A Certificates and the
Class B Certificates set forth opposite such Underwriter's name in Schedule I
hereto at a price for the Class A Certificates equal to [_____% ] of such
principal amount and at a price for the Class B Certificates equal to [_____% ]
of such principal amount.
2. Offering. BCRC understands that the Underwriters intend (i) to make
a public offering of their respective portions of the Certificates in accordance
with the Securities Act as soon after (A) the Registration Statement has become
effective and (B) the parties hereto have
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executed and delivered this Agreement as in the judgment of the Representative
is advisable and (ii) initially to offer the Certificates upon the terms set
forth in the Prospectus.
3. Delivery and Payment. Payment for the Certificates shall be made by
wire transfer in immediately available funds to the account specified by BCRC to
the Representative no later than noon on the Business Day (as defined below)
prior to the Closing Date (as defined below), at 10:00 A.M., New York City time
on September __, 2000, or at such other time on the same or such other date, not
later than the fifth Business Day thereafter, as the Representative and BCRC may
agree upon in writing. The time and date of such payment are referred to herein
as the "Closing Date." As used herein, the term "Business Day" means any day
other than a day on which banks are permitted or required to be closed in New
York City.
Payment for the Certificates shall be made against delivery to the
nominee of the Depository Trust Company for the account of the Representative
for the respective accounts of the several Underwriters of one or more global
notes (the "Global Notes") representing the Certificates, with any transfer
taxes payable in connection with the transfer to the Underwriters of the
Certificates duly paid by BCRC. The Global Notes will be made available for
inspection by the Representative at the office of Morgan, Lewis & Bockius LLP,
101 Park Avenue, New York, New York 10178 not later than 1:00 P.M., New York
City time, on the Business Day prior to the Closing Date.
4. Representations and Warranties. Each of BCRC and BCI represents and
warrants to each Underwriter that:
(a) No order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement, as originally
filed or as part of any amendment thereto, or filed pursuant to Rule
424 under the Securities Act, complied when so filed in all material
respects with the Securities Act, and when so filed did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished to
BCRC in writing by such Underwriter through the Representative
expressly for use therein;
(b) The Registration Statement has been declared effective by the
Commission under the Securities Act on September __, 2000 (the
"Effective Date"); no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of BCRC or BCI,
threatened by the Commission; and, on the Effective Date and on the
date hereof, the Registration Statement and Prospectus comply, or, if
BCI shall have furnished any amendments or supplements there to, as
amended or supplemented will comply, as the case may be, in all
material respects with the Securities Act, and do not and as amended or
supplemented will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the date of
the Prospectus and any
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amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and the Prospectus, as amended or supplemented, if applicable, at the
Closing Date will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except that the foregoing representations and
warranties shall not apply to statements or omissions in the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to
BCRC in writing by such Underwriter through the Representative
expressly for use therein;
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change in or affecting the general affairs, business,
management, financial position, stockholders' equity or results of
operations of BCRC or BCI, taken as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(d) Each of BCRC and BCI has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state
of its incorporation, with full power and authority (corporate and
other) and legal right to own its properties and conduct its business
as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on it and its
subsidiaries, taken as a whole, or the transactions contemplated herein
or in the Basic Documents;
(e) As of the Closing Date, (i) the Certificates will be duly and
validly authorized and, when the Certificates are duly and validly
executed and authenticated by the Trustee and delivered in accordance
with the Pooling and Servicing Agreement and delivered and paid for
pursuant to this Agreement, the Certificates will be duly and validly
executed, authenticated, issued and delivered and entitled to the
benefits and security afforded by the Pooling and Servicing Agreement
and the Supplement; (ii) each of the Basic Documents has been duly
authorized by each of BCRC and BCI and, when executed and delivered by
each of BCRC and BCI, each of the Basic Documents will constitute a
legal, valid and binding obligation of each of BCRC and BCI,
enforceable against each of BCRC and BCI in accordance with its terms,
subject as to enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other
similar laws affecting the enforcement of creditors rights generally
and to general equitable principles; and (iii) the Certificates and the
Basic Documents each will conform to the descriptions thereof in the
Prospectus;
(f) This Agreement has been duly authorized, executed and delivered
by each of BCRC and BCI;
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(g) Neither BCRC nor BCI is, nor with the giving of notice or lapse
of time or both would be, in violation of or in default under, its
Certificate of Incorporation or By-Laws or any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
it is a party or by which it or any of its properties is bound, except
for violations and defaults which individually and in the aggregate
would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents; the issue and sale of
the Certificates and the performance by each of BCRC and BCI, as
applicable, of all of the provisions of its obligations under the
Certificates, the Basic Documents and this Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict in any material respect with or result in a material
breach of any of the terms or provisions of, or constitute a material
default under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which BCRC or BCI is a
party or by which BCRC or BCI is bound or to which any of the material
property or assets of BCRC or BCI is subject, nor will any such action
result in any material violation of the provisions of the Certificate
of Incorporation or the By-Laws of BCRC or BCI or any applicable law or
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over BCRC or BCI, or any of their
properties; and no consent, approval, authorization, order, license,
registration, filing or qualification of or with any such court or
governmental agency or body is required to be obtained or made by BCRC
or BCI for the issue and sale of the Certificates or the consummation
by BCRC or BCI of the transactions contemplated by this Agreement or
the Basic Documents, except (i) such consents, approvals,
authorizations, orders, licenses, registrations, filings or
qualifications (x) as have been or will have been obtained prior to the
Closing Date under the Securities Act, and as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Certificates by the Underwriters or (y) will not
materially adversely affect the ability of BCI or BCRC to perform its
obligations under any Basic Document or under this Agreement and (ii)
the filing of any financial statements required to perfect the Trust's
interest in the Receivables;
(h) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of BCRC or BCI, threatened
against or affecting BCRC or BCI or any of their properties or, to
which BCRC or BCI is or may be a party or to which BCRC or BCI or any
property of BCRC or BCI is or may be the subject, (i) asserting the
invalidity of this Agreement or of any of the Basic Documents, (ii)
seeking to prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated by this Agreement or any of the
Basic Documents, (iii) that may adversely affect the federal or state
income, excise, franchise or similar tax attributes of the
Certificates, (iv) that could materially and adversely affect BCRC's or
BCI's performance of its obligations under, or the validity or
enforceability of, this Agreement or any of the Basic Documents or (v)
which could individually or in the aggregate reasonably be expected to
have a material adverse effect on the interests of the holders of the
Certificates or the marketability of the Certificates;
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(i) The computer tapes with respect to the Receivables sold to the
Trust created as of the initial Cut-Off Date, each Additional Cut-Off
Date, each Removal Date and each Removal Termination Date, as
applicable were complete and accurate as of the respective dates
thereof; immediately prior to transferring the Receivables to the
Trust, BCRC had good and marketable title to the Receivables free and
clear of all liens, encumbrances and defects, except such as are
described or referred to in the Prospectus and to the extent permitted
in the Pooling and Servicing Agreement, and by assignment and delivery
of each of the Receivables to the Trust, BCRC transferred title in the
Receivables to the Trust, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, change or encumbrance, except such as
are described or referred to in the Prospectus and to the extent
permitted in the Pooling and Serving Agreement;
(j) The representations and warranties of each of BCRC and BCI
contained in the Basic Documents are true and correct in all material
respects as of the dates specified in the Basic Documents;
(k) Ernst & Young LLP are independent public accountants with
respect to BCRC and BCI within the meanings of the Securities Act;
(l) Each of BCRC and BCI owns, possesses or has obtained all
material licenses, permits, certificates, consents, orders, approvals
and other authorizations from, and has made all material declarations
and filings with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or service, as applicable, the
Receivables and to perform its obligations under this Agreement and the
Basic Documents except to the extent that the failure to have such
licenses, certificates, permits, consent, orders, approvals and other
authorizations does not have a material adverse effect on the ability
of BCI or BCRC to comply with its obligations under this Agreement and
the Basic Documents, and neither BCRC nor BCI has received any actual
notice of any proceeding relating to revocation or modification of any
such license, permit, certificate, consent, order, approval or other
authorization; and each of BCRC and BCI is in compliance with all laws
and regulations necessary for the performance of its obligations under
this Agreement and the Basic Documents; and
(m) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement and the
Basic Documents and the Certificates shall have been paid or will be
paid by or on behalf of BCRC and BCI, as applicable, at or prior to the
Closing Date to the extent then due.
5. Covenants and Agreements. Each of BCRC and BCI jointly and severally
covenants and agrees with each of the Underwriters as follows:
(a) If required, to file the final Prospectus with the Commission
within the time periods specified by Rule 424(b) and Rule 430A under
the Securities Act, and to furnish copies of the Prospectus to the
Underwriters in New York City prior to 10:00
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A.M., New York City time, on the Business Day next succeeding the date
of this Agreement in such quantities as the Representative may
reasonably request;
(b) To deliver, at the expense of BCRC, to the Representative, two
conformed copies of the Registration Statement (as originally filed)
and each amendment thereto, in each case including exhibits, and,
during the period mentioned in paragraph (e) below, as many copies of
the Prospectus (including all amendments and supplements thereto) as
the Representative may reasonably request;
(c) Before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the
Registration Statement becomes effective, to furnish to the
Representative a copy of the proposed amendment or supplement for
review and not to file any such proposed amendment or supplement to
which the Representative reasonably objects;
(d) To advise the Representative promptly, and to confirm such
advice in writing, (i) when any amendment to the Registration Statement
has been filed or becomes effective, (ii) when any supplement to the
Prospectus or any amendment to the Prospectus has been filed and to
furnish the Representative with copies thereof, (iii) of any request by
the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus or
the Prospectus or the initiation or threatening of any proceeding for
that purpose, (v) of the occurrence of any event, within the period
referenced in paragraph (e) below, as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, and (vi) of the
receipt by BCRC or BCI of any notification with respect to any
suspension of the qualification of the Certificates for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and to use its reasonable best efforts to prevent the
issuance of any such stop order, or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus, or
of any order suspending any such qualification of the Certificates, or
notification of any such order thereof and, if issued, to obtain as
soon as possible the withdrawal thereof;
(e) If before a period of six months shall have elapsed after the
Effective Date and the delivery of a prospectus shall be at the time
required by law in connection with sales of any such certificates,
either (i) any event shall have occurred as a result of which the
Prospectus would include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or (ii) for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
as amended or supplemented, to notify you and to prepare and furnish to
you an amendment or a supplement to the Prospectus which will correct
such statement or omission or effect
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such compliance; and in case any Underwriter is required by law to
deliver a prospectus in connection with sales of any of such
Certificates at any time six months or more after the Closing Date,
upon such Underwriter's request, but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies
as such Underwriter may request of an amended or supplemented
prospectus complying with 10 (a) (3) of the Act.
(f) To endeavor to qualify the Certificates for offer and sale
under the securities or Blue Sky laws of such jurisdictions in the
United States as the Representative shall reasonably request and to
continue such qualification in effect so long as reasonably required
under such laws for distribution of the Certificates; and to pay all
fees and expenses (including reasonable fees and disbursements of
counsel to the Underwriter) reasonably incurred in connection with such
qualification and in connection with the determination of the
eligibility of the Certificates for investment under the laws of such
jurisdictions in the United States as the Underwriter may designate;
provided, however, that neither BCRC nor BCI shall be obligated to
qualify to do business in any jurisdiction in which it is not currently
so qualified; and provided further that neither BCRC nor BCI shall be
required to file a general consent to service of process in any
jurisdiction;
(g) To make generally available to the holders of the Certificates
and to the Representative as soon as practicable an earnings statement
(which need not be audited) covering a period of at least twelve months
beginning with the first fiscal quarter of the Trust occurring after
the effective date of the Registration Statement, which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder;
(h) So long as the Certificates are outstanding, or until such time
as the Underwriters shall cease to maintain a secondary market in the
Certificates, whichever occurs first, to furnish to the Representative
(i) copies of each certificate, the annual statements of compliance and
the annual independent certified public accountant's servicing reports
furnished to the Trustee pursuant to Section 3.05 and Section 3.06,
respectively, of the Pooling and Servicing Agreement by first class
mail as soon as practicable after such statements and reports are
furnished to the Trustee, (ii) copies of each amendment to any of the
Basic Documents, (iii) copies of all reports or other communications
(financial or other) furnished to holders of the Certificates, and
copies of any reports and financial statements furnished to or filed
with the Commission, any governmental or regulatory authority or any
national securities exchange, and (iv) from time to time such other
information as the Representative may reasonably request concerning the
Trust or BCRC or concerning BCI in its capacity as Seller or Servicer
of the Receivables included in the Trust;
(i) To the extent, if any, that the ratings provided with respect
to the Certificates by the rating agency or rating agencies rating the
Certificates (each, a "Rating Agency") are conditional upon the
furnishing of documents or the taking of any other
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action by BCRC or BCI, BCRC or BCI, as applicable, shall furnish such
documents and take any other such action;
(j) To use the net proceeds received by BCRC from the sale of the
Certificates pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(k) If required by law, to register the Certificates in a timely
manner pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(l) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be
paid all fees, costs and expenses incident to the performance of its
obligations hereunder, including without limiting the generality of the
foregoing, all fees, costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the
Certificates, including any fees, costs and expenses of the Trustee or
any transfer agent, (ii) incident to the preparation, printing and
filing under the Securities Act of the Registration Statement, the
Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in
connection with the registration or qualification and determination of
eligibility for investment of the Certificates under the laws of such
jurisdictions as the Underwriter may reasonably designate (including
reasonable fees of counsel for the Underwriter and counsel for BCRC or
BCI and their disbursements with respect thereto), (iv) in connection
with the printing (including word processing and duplication costs) and
delivery of this Agreement, the Basic Documents, the Preliminary and
Supplemental Blue Sky Memoranda and any Legal Investment Survey and the
furnishing to Underwriter and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided, (v) of BCRC's and BCI's counsel and accountants, (vi)
incurred by BCRC or BCI in connection with any "roadshow" presentation
to potential investors, and (vii) payable to rating agencies in
connection with the rating of the Certificates; and
(m) From and after the Closing Date, not to take any action which
in the reasonable judgment of BCI or BCRC, as applicable, is
inconsistent with the Trust's ownership of the Receivables other than
as permitted by the Pooling and Servicing Agreement.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters hereunder are subject to the performance by each of BCRC and
BCI of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities
Act, such post-effective amendment shall have become effective, not
later than 5:00 P.M., New York City time, on the date hereof; and on or
prior to the Closing Date no stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment shall be in
effect, and no proceedings for such purpose shall be pending
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before or to BCRC's or BCI's knowledge threatened by the Commission;
the Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Securities Act and in
accordance with Section 5(a) hereof; and all requests for additional
information shall have been complied with to the satisfaction of the
Representative;
(b) The representations and warranties of each of BCRC and BCI
contained herein are true and correct in all material respects on and
as of the Closing Date as if made on and as of the Closing Date and the
representations and warranties of each of BCRC and BCI in the Basic
Documents will be true and correct in all material respects as of the
dates specified in the Basic Documents; and each of BCRC and BCI shall
have complied with all agreements and all conditions on its part to be
performed or satisfied hereunder and under the Basic Documents at or
prior to the Closing Date;
(c) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any review or possible change that
does not indicate an improvement, in the rating accorded any securities
of or guaranteed by BCRC or BCI by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(d) Since the date hereof there shall not have been any material
adverse change or any development involving a prospective material
adverse change, in or affecting the general affairs, business,
management, financial position, stockholders' equity or results of
operations of BCRC or BCI, otherwise than as set forth or contemplated
in the Prospectus, the effect of which in the reasonable judgment of
the Representative makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Certificates on the
Closing Date on the terms and in the manner contemplated in the
Prospectus; and the Representative shall have received on and as of the
Closing Date a certificate of an officer of BCI knowledgeable with
respect to financial performance and the characteristics of the
Bombardier Capital Inc. Domestic Inventory Portfolio and the financial
performance and the characteristics of the Accounts and the receivables
in the Accounts which have been designated to the trust (all such terms
as used in the Prospectus) stating that there has been no material
adverse change and no development involving a prospective material
adverse change in the financial performance and characteristics of the
Bombardier Capital Inc. Domestic Inventory Portfolio or in the Accounts
or the receivables in the Accounts from April 30, 2000 to the Closing
Date.
(e) The Representative shall have received on and as of the Closing
Date a certificate of an executive officer of each of BCRC and BCI, in
which such officer, to the best of his or her knowledge after
reasonable investigation, shall state that (A) the representations and
warranties of BCRC and BCI, as applicable, in this Agreement are true
and correct in all material respects on and as of the Closing Date, (B)
such officer has specific knowledge about the financial matters of BCRC
and BCI, as applicable, and
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that each of BCRC and BCI, as applicable, has complied in all
material respects with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the
Closing Date, (C) the representations and warranties of BCRC and BCI,
as applicable, in the Basic Documents are true and correct in all
material respects as of the dates specified in the Basic Documents,
(D) the Registration Statement has become effective, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or to
BCRC's or BCI's knowledge, are threatened by the Commission, (E) the
Prospectus does not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, (F) subsequent to the date of the
Prospectus, there has been no material adverse change in the
condition (financial or otherwise) of either BCRC or BCI, as
applicable, except as set forth in or contemplated in the Registration
Statement and the Prospectus or as described in such certificate; and
(G) the chief executive offices of BCI and BCRC are located in the
State of Vermont;
(f) R. William Crowe, Vice President, Legal Affairs and General
Counsel of BCI, shall have furnished to the Underwriters his written
opinion, dated the Closing Date, in form and substance satisfactory to
the Representative, to the effect that:
(i) each of BCRC and BCI is duly qualified to transact business as
a foreign corporation and is in good standing in each jurisdiction in
the United States of America in which it conducts business or owns or
leases property so as to make such qualifications necessary, or is not
subject to material liability or disability by reason of the failure to
be so qualified in any jurisdiction;
(ii) such counsel does not know of any legal or governmental
investigations, actions, suits or proceedings pending or, overtly
threatened (by written communication) against or affecting BCRC or BCI
or any of their properties, or to which BCRC or BCI is or may be a
party or of which any property of BCRC or BCI is the subject (A) that
are required to be disclosed in the Registration Statement or the
Prospectus, (B) asserting the invalidity of this Agreement or of any of
the Basic Documents, (C) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents, (D) that
may adversely affect the federal or state income, excise, franchise or
similar tax attributes of the Certificates as described in the
Prospectus under the headings "Prospectus Summary - Federal Income Tax
Consequences" and "Material Federal Income Tax Consequences," (E) that
could materially and adversely affect BCRC's or BCI's obligations under
this Agreement or any of the Basic Documents or (F) which, if
determined adversely to BCRC or BCI, could individually or in the
aggregate reasonably be expected to have a material adverse effect on
the general affairs, business, prospects, management, financial
position, stockholders, equity or results of operations of BCRC or BCI,
taken as a whole, or that would reasonably be expected to materially
adversely affect the interests of the holders of the Certificates;
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(iii) neither BCRC nor BCI is (A) in violation of its Certificate
of Incorporation or (B) in default in any material respect in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease, pooling and servicing agreement or other
agreement or instrument to which BCRC or BCI is a party or by which
BCRC or BCI may be bound, or to which any of its property or assets is
subject, other than such defaults as would not, individually or in the
aggregate, have a material adverse effect on the business of either BCI
or BCRC or would prevent the consummation of the transactions
contemplated in this Agreement or the Basic Documents; neither the
execution and delivery by BCRC or BCI of any Basic Document or this
Agreement, nor the consummation of the transactions herein and therein
contemplated nor the issuance of the Certificates by the Trust or the
public offering thereof as contemplated in the Prospectus, will
conflict with or result in a breach of, or constitute a default (with
notice or passage of time or both) under, or result in the imposition
of any lien, mortgage, pledge, charge, encumbrance, adverse claim or
other security interest of any other person (collectively, "Liens")
upon any of the property or assets of BCI or BCRC pursuant to, except
as required or permitted pursuant thereto, any material indenture,
mortgage, contract or other instrument to which BCI or BCRC is a party
or by which either of them is bound, or to which any of their
properties is subject, other than such conflicts, breaches, defaults or
Liens which would not, individually or in the aggregate, have a
material adverse effect on the business of either BCI or BCRC or would
prevent the consummation of the transactions contemplated by this
Agreement and the Basic Documents;
(iv) each of BCRC and BCI possesses all material licenses,
certificates, authorities or permits issued by the appropriate state or
federal regulatory agencies or bodies necessary to conduct the business
now conducted by it and as described in the Prospectus, except to the
extent that the failure to have such licenses, certificates,
authorities or permits does not have a material adverse effect on the
Certificates or the financial condition of BCI or BCRC, and to my
knowledge neither BCI nor BCRC has received any notice of proceedings
relating to the revocation or modification of any such license,
certificate, authority or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the conduct of its business or
financial condition.
(g) Peabody & Arnold LLP, special counsel for BCI, shall have furnished
to the Underwriters their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representative, to the effect that:
(i) BCI is a corporation duly incorporated and validly existing and
in good standing under the laws of The Commonwealth of Massachusetts,
and has the corporate power and authority to own its properties and
assets in Massachusetts and to transact the business in which it is
engaged or presently proposes to engage in Massachusetts. BCI is in
good standing under the laws of the Commonwealth of Massachusetts with
the office of the Secretary of the Commonwealth of Massachusetts;
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(ii) BCI has the corporate power to execute, deliver and perform
each Basic Document and this Agreement and has taken all necessary
corporate action to authorize the execution, delivery and performance
of each of the Basic Documents and this Agreement, and each of the
Basic Documents and this Agreement have been duly authorized, executed
and delivered by BCI. Each of the Basic Documents and this Agreement
constitutes a legal, valid and binding obligation of BCI, enforceable
against BCI in accordance with their respective terms, subject to the
qualifications that (i) enforcement of each of the Basic Documents and
this Agreement may be limited by any applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
the enforcement of creditors, rights generally from time to time in
effect and may be subject to the application of equitable principles
and the availability of equitable remedies, (ii) the enforceability of
the rights to indemnity and contribution set forth in this Agreement
may be limited by federal or state securities laws or regulations or
public policy considerations, and (iii) with respect to each of this
Agreement and the Basic Documents, a court might, among other things,
(A) not allow a party thereto to pursue remedies available to it
thereunder upon the occurrence of a default or breach by another party
thereto deemed by such court to be immaterial or (B) require that each
party thereto act reasonably and in good faith;
(iii) neither the execution and delivery by BCI of any Basic
Document or this Agreement, nor the consummation by BCI of the
transactions therein contemplated, nor the issuance of the Certificates
by the Trust or the public offering thereof as contemplated in the
Prospectus, will conflict with or result in a breach of, or constitute
a default (with notice or the passage of time or both) under, or
(except as required or permitted pursuant to any Basic Document or this
Agreement) result in the imposition of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest of any
other person upon any of the property or assets of BCI pursuant to, (A)
any provision of any Massachusetts law, governmental rule or regulation
currently applicable to BCI or (B) the Articles of Organization or
By-Laws of BCI; and
(iv) no consent, approval, authorization or order of, or
registration, filing or declaration with, any Massachusetts court or
governmental agency or governmental body is required (A) for the due
execution, delivery and performance by BCI of any Basic Document or
this Agreement or (B) for the offer, sale or delivery of the
Certificates, except for such consents, approvals, authorizations,
orders, registrations, filings or declarations as may be required under
state securities or Blue Sky laws.
(h) Morgan, Lewis & Bockius LLP, special counsel for BCRC and BCI,
shall have furnished to the Underwriters their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative, to the
effect that:
(i) BCRC is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware;
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(ii) BCRC has the requisite corporate power to execute and deliver
each of the Basic Documents and this Agreement and to perform its
obligations thereunder and hereunder;
(iii) each of the Basic Documents and this Agreement has been duly
authorized by all necessary corporate action on the part of BCRC and
duly executed and delivered by each of BCI and BCRC, and constitutes
the valid, legal and binding obligation of each of BCI and BCRC,
enforceable against each of BCI and BCRC in accordance with its terms;
(iv) the direction by BCRC to the Trustee to execute, authenticate
and deliver the Certificates has been duly authorized by all necessary
corporate action on the part of BCRC, and as of the Closing Date, the
Certificates will be duly and validly authorized, and, when duly and
validly executed and authenticated by the Trustee and delivered to BCRC
in accordance with the Pooling and Servicing Agreement, and following
delivery to and payment therefor by the Underwriters, will be validly
issued and outstanding and entitled to the benefits of the Pooling and
Servicing Agreement;
(v) neither the execution and delivery by BCI or BCRC of the Basic
Documents and this Agreement, nor the consummation by BCI or BCRC of
the transactions therein contemplated nor the issuance of the
Certificates by the Trust, will conflict with or result in a breach of,
or constitute a default (with notice or passage of time or both) under,
or result in the imposition of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest of any other
person upon any of the property or assets of BCI or BCRC pursuant to,
except as required or permitted pursuant thereto, (1) any provision of
any New York State or federal law, governmental rule or regulation
currently applicable to BCI or BCRC (based upon our review of those
laws, rules and regulations which in our experience are normally
applicable to transactions of this type, but without having made a
special investigation concerning any other law, rule or regulation and
without expressing any opinion as to any federal or state securities
laws, rules or regulations or the polices underlying such laws), (2)
the Certificate of Incorporation or By-Laws of BCRC or (3) any material
indenture, mortgage, contract or other instrument (A) to which BCI or
BCRC is a party or by which either of them is bound or to which any of
their property is subject, (B) currently in effect and (C) as to which
such counsel has represented either BCI or BCRC;
(vi) no consent, approval, authorization or order of, or
registration, filing or declaration with, any New York State or federal
court, governmental agency or governmental body is required (A) for the
due execution, delivery and performance by BCI or BCRC of the Basic
Documents and this Agreement or (B) for the offer, issuance, sale or
delivery of the Certificates by BCRC in the manner and under the
circumstances contemplated by the Basic Documents and this Agreement,
except such as shall have been obtained or made on or prior to the
Closing Date, unless the failure to obtain or to make such on or prior
to the Closing Date will not materially adversely affect the ability of
BCI or BCRC to perform its obligations under the Basic Documents and
this Agreement and except for such consents, approvals, authorizations,
orders, registrations,
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filings or declarations required under the state securities or Blue
Sky laws or the Uniform Commercial Code of the State of Vermont;
(vii) except as may be separately disclosed to the Underwriters in
writing regarding BCI, such counsel has not been engaged as counsel for
either BCI or BCRC in connection with any pending or overtly threatened
(by written communication) legal or governmental proceedings to which
BCI or BCRC is a party or to which any property of BCI or BCRC is the
subject, other than such proceedings which, in their opinion, if
adversely determined, are not reasonably likely to have a material
adverse effect upon (A) the financial condition of BCI or BCRC or (B)
the performance by BCI or BCRC of its obligations under, or the
validity and enforceability of, any of the Basic Documents or this
Agreement;
(viii) the Pooling and Servicing Agreement creates in favor of the
Trustee a security interest in the rights of BCRC in the Receivables.
To the extent that such security interest is not an interest of a buyer
of chattel paper, then the Pooling and Servicing Agreement creates in
favor of the Trustee a security interest in the rights of BCRC in the
proceeds of such Receivables;
(ix) if the chief executive office of BCRC is located in the State
of Vermont, then the laws (including the conflict of laws rules) of the
State of Vermont govern the perfection and effect of perfection or
non-perfection of the security interests described in paragraph (viii)
above which are perfected by filing;
(x) the statements in the Prospectus under "Description of the
Certificates" and "Description of the Receivables Purchase Agreement"
and the definitions in the "Glossary," insofar as such statements and
definitions constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present in all material
respects the information called for with respect to such legal matters,
documents or proceedings; the statements in the Registration Statement
and the Prospectus under the headings "Material Federal Income Tax
Consequences," "ERISA Considerations" and "Material Legal Aspects of
the Receivables," to the extent they constitute descriptions of matters
of law or legal conclusions with respect thereto, have been prepared or
reviewed by such counsel and are correct in all material respects;
(xi) such counsel does not know of any contract or other document
of a character required by the Securities Act to be filed as an exhibit
to the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in the
Registration Statement or the Prospectus which is not filed or
incorporated by reference or described as required;
(xii) the Registration Statement has become effective under the
Securities Act and the Prospectus has been filed with the Commission
pursuant to Rule 424(b) promulgated under the Securities Act; to such
counsels knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or threatened by
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the Commission; such counsel is of the opinion that at the time the
Registration Statement became effective and the Prospectus was filed,
respectively, the Registration Statement and the Prospectus and any
amendments and supplements thereto (other than any accounting,
statistical or financial data included therein, as to which such
counsel need express no opinion) complied as to form in all material
respects with the requirements of the Securities Act; and while not
passing upon and not assuming responsibility for and not to be deemed
to have independently verified the accuracy, completeness or fairness
of the Registration Statement or the Prospectus (except for those
statements made under the headings in the Prospectus identified in
paragraph (x) above insofar as they relate to matters of law or legal
conclusions) nothing has come to such counsel's attention, in the
course of participating with officers of BCI and BCRC and
representatives of BCI's and BCRC's auditors in discussions regarding
the business and affairs of BCI and BCRC at which the contents of the
Registration Statement and Prospectus and related matters were
discussed, which would lead such counsel to believe that (other than
the accounting, statistical or financial data included therein, as to
which such counsel need express no belief) the Registration Statement
and the prospectus included therein at the time the Registration
Statement became effective contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and that
the Prospectus as of its date and as of the Closing Date, as amended or
supplemented, if applicable, contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(xiii) the Pooling and Servicing Agreement and the Supplement are
not required to be qualified under the Trust Indenture Act of 1939, as
amended, and the Trust is not now, and immediately following the sale
of the Certificates hereto, will not be required to be registered as an
"investment company" under the Investment Company Act of 1940, as
amended; and
(xiv) for federal income tax purposes, the Certificates will
properly be characterized as indebtedness of BCRC that is secured by
the Receivables and pursuant to Section 6.03(b)(vi) of the Pooling and
Servicing Agreement, for federal income tax purposes, the issuance of
the Certificates (x) will not adversely affect the federal income tax
characterization as debt of BCRC of any issued and outstanding Series
of investor certificates issued by the Trust and will not cause or
constitute a taxable event with respect to any certificateholders or
the Trust.
(i) Downs Rachlin & Martin, PC, special counsel to BCI and BCRC, shall
have furnished to the Underwriters their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative, to the effect
that:
(i) the Receivables constitute "chattel paper" as defined in
section 9-105(1)(b) of the Uniform Commercial Code;
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(ii) the conflict of laws principles contained in Title 9A of
Vermont Statutes Annotated provide that the parties may designate the
law of another state as governing the rights and duties of the parties
if the transaction bears a reasonable relation to the state whose law
is chosen, except that (1) article 9 of the Uniform Commercial Code
governs the perfection and the effect of perfection or nonperfection of
possessory security interests in chattel paper located within the State
of Vermont, and (2) article 9 of the Uniform Commercial Code governs
the perfection and the effect of perfection or nonperfection of
non-possessory security interests in chattel paper if the debtor's
chief executive office is located in the State of Vermont; therefore,
notwithstanding the contractual choice of New York law contained in the
Pooling and Servicing Agreement and the Receivables Purchase Agreement,
the conflict of laws principles contained in Title 9A of Vermont
Statutes Annotated require that the perfection and the effect of
perfection or nonperfection of security interest in the Receivables and
the Collateral Security be determined under the Uniform Commercial
Code. The express choice of law provisions contained in the Pooling and
Servicing Agreement and the Receivables Purchase Agreement, insofar as
such provisions relate to the attachment or creation of security
interest in the Receivables and the Collateral Security, will be given
effect by a federal or state court located in the State of Vermont
unless such a court determines that the application of New York law
would contravene a public policy of the State of Vermont;
(iii) immediately prior to the transfer of the Receivables to the
Trustee, BCRC's interest in the Transferred Property (as such term is
defined in such counsel's opinion) was perfected upon the filing of the
UCC-1 financing statement the form of which is attached to such opinion
with the Secretary of State of the State of Vermont and constituted a
perfected first priority interest therein. If a court concludes that
the transfer of the Receivables from BCRC to the Trustee was a sale,
the interest of the Trustee in the Transferred Property (as such term
is defined in such counsel's opinion) was perfected upon the filing of
the UCC-1 financing statement the form of which is attached to such
opinion with the Secretary of State of the State of Vermont and
constitutes a first priority perfected interest therein. If a court
concludes that such transfer was not a sale, the Pooling and Servicing
Agreement constitutes a grant by BCRC to the Trustee of a valid
security interest in the Transferred Property (as such term is defined
in such counsel's opinion), which security interest was perfected upon
the filing of the UCC-1 financing statement the form of which is
attached to such opinion with the Secretary of State of the State of
Vermont and constitutes a first priority perfected security interest
therein. No filing or other action, other than the filing of the UCC-1
financing statements with the Secretary of State of the State of
Vermont referred to above, was or is necessary to perfect and maintain
the interest or the security interest of the Trustee in the Transferred
Property (as such term is defined in such counsel opinion) against
third parties;
(iv) with respect to the income tax consequences of the issuance of
the Certificates addressed in the opinion of Morgan, Lewis & Bockius
LLP, a copy of which is attached to such opinion, Vermont income tax
law conforms to federal income tax law;
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(v) neither the execution and delivery by BCI or BCRC of any of the
Basic Documents or this Agreement, nor the consummation by BCI or BCRC
of the transactions contemplated therein or herein, will violate any
provision of any Vermont law, governmental rule or regulation currently
applicable to the respective businesses of BCI or BCRC; and
(vi) no consent, approval, authorization or order of, or
registration, filing or declaration with, any Vermont court or
governmental agency or governmental body is required for the due
execution and delivery by BCI or BCRC of any of the Basic Documents or
this Agreement except (1) for such consents, approvals, authorizations,
orders, registrations, filings or declarations required under state
securities or Blue Sky laws, as to which such counsel expresses no
opinion and (2) such consents, approvals, authorizations, orders,
registrations, filings or declarations as have been obtained.
(j) Morgan, Lewis & Bockius LLP, special counsel for BCI and BCRC,
shall have furnished to the Underwriters their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative, relating
to certain insolvency and bankruptcy matters.
(k) On the date hereof and also on the Closing Date, the Underwriter
shall have received a letter from Ernst & Young, dated the date of delivery
thereof, confirming that they are independent public accountants within the
meaning of the Securities Act and substantially in the form heretofore agreed
and otherwise in form and substance satisfactory to the Representative and its
counsel;
(l) The Underwriters shall have received on and as of the Closing Date
an opinion of Orrick, Herrington & Sutcliffe LLP, counsel to the Underwriters,
with respect to the validity of the Pooling and Servicing Agreement and the
Certificates, the Registration Statement, the Prospectus and other related
matters as the Representative may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(m) The Underwriters shall have received an opinion of White & Case,
counsel to the Trustee, dated the Closing Date, in form and substance reasonably
satisfactory to the Representative and counsel to the Underwriters, to the
effect that:
(i) the Trustee has been duly incorporated and is validly existing
as a New York banking corporation under the laws of the State of New
York and has the power and authority to enter into and to take all
action required of it under the Pooling and Servicing Agreement and the
Supplement;
(ii) each of the Pooling and Servicing Agreement and the Supplement
has been duly authorized, executed and delivered by the Trustee and
constitutes a legal, valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, except as
the enforceability thereof may be limited by (A) bankruptcy,
insolvency, reorganization, or other similar laws affecting the
enforcement of creditors'
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rights generally, as such laws would apply in the event of a
bankruptcy, insolvency or reorganization or similar occurrence
affecting the Trustee, and (B) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) the execution and delivery of the Pooling and Servicing
Agreement and the Supplement by the Trustee and the performance by the
Trustee of their respective terms do not conflict with or result in a
violation of (A) any law or regulation of the United States of America
or the State of New York governing the banking or trust powers of the
Trustee, or (B) the Charter or By-laws of the Trustee; and
(iv) the Certificates have been duly, executed on behalf of the
Trust, authenticated and delivered by the Trustee;
(v) no approval, authorization or other action by, or filing with,
any governmental authority of the United States of America or the State
of New York having jurisdiction over the banking or trust powers of the
Trustee is required in connection with the execution and delivery by
the Trustee of the Pooling and Servicing Agreement and the Supplement
or the performance by the Trustee of the terms of the Pooling and
Servicing Agreement and the Supplement.
(n) Morgan, Lewis & Bockius LLP, special counsel for BCI and BCRC, or
another firm acceptable to the Underwriters and qualified to practice law in the
state of Florida, shall have furnished to the Underwriters their written
opinion, dated the Closing Date, in form and substance satisfactory to the
Representative, to the effect that neither the Receivables, the Trust nor any
interest in the Trust is or immediately following the issuance of the
Certificates will be subject to any intangibles tax imposed by the State of
Florida or BCI and BCRC shall have provided to the Underwriters other evidence
satisfactory to the Underwriters and their counsel to the effect that neither
the Receivables, the Trust, nor any interest in the Trust is or immediately
following the issuance of the Certificates will be subject to any intangibles
tax imposed by the State of Florida.
(o) The Underwriters shall have received an officer's certificate dated
the Closing Date of the chairman of the board, the president, an executive vice
president or the treasurer of the Trustee in which such officer shall state on
behalf of the Trustee that, to the best of such officer's knowledge after
reasonable investigation, the representations and warranties of the Trustee
contained in the Pooling and Servicing Agreement and the Supplement are true and
correct in all material respects, and that the Trustee has complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied under the Pooling and Servicing Agreement and the
Supplement at or prior to the Closing Date;
(p) The Underwriters shall have received a certificate of the Trustee,
signed by one or more duly authorized officers of the Trustee, dated the Closing
Date, as to the due acceptance of the Pooling and Servicing Agreement and the
Supplement by the Trustee and the due execution and delivery of the Certificates
by the Trustee thereunder and such other matters as the Representative shall
reasonably request;
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(q) The Underwriters shall have received a letter or letters from each
counsel delivering any written opinion to any Rating Agency in connection with
the transaction described herein which is not otherwise described in this
Agreement allowing the Underwriters to rely on such opinion as if it were
addressed to the Underwriters;
(r) The Representative shall have received copies of letters from
Moody's Investors Service, Inc. ("Moody's") and Standard & Poor's Ratings
Service ("S&P") stating that the Class A Certificates shall have been rated at
least Aaa by Moody's and AAA by S&P and that the Class B Certificates shall have
been rated no lower than ___ by Moody's and no lower than ___ by S&P, and such
ratings shall not have been rescinded;
(s) The Representative shall have received a copy (including by means
of telecopier) of (i) a file-stamped acknowledgment copy of the UCC-1 financing
statements on Form UCC-1 and all continuation statements related thereto filed
with the Secretary of State of the State of Vermont with respect to the transfer
of the Receivables by BCI to BCRC pursuant to the Receivables Purchase
Agreement, identifying the Receivables as collateral and naming BCI as debtor
and BCRC as the secured party, and (ii) a file-stamped acknowledgment copy of
the UCC-1 financing statements on Form UCC-1 and all continuation statements
related thereto filed with the Secretary of State of the State of Vermont with
respect to the transfer of the Receivables by BCRC to the Trustee pursuant to
the Pooling and Servicing Agreement, identifying the Receivables as collateral
and naming BCRC as debtor and the Trustee as the secured party; and
(t) On or prior to the Closing Date BCRC shall have furnished to the
Underwriters such further certificates and documents as the Representative shall
reasonably request.
7. (a) Indemnification and Contribution. BCRC and BCI agree to jointly
and severally indemnify and hold harmless each Underwriter, each affiliate of an
Underwriter which assists such Underwriter in the distribution of the
Certificates and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages, liabilities and
expenses (including, without limitation, the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if BCRC shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities and expenses are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Underwriter furnished to
BCRC or BCI in writing by such Underwriter through the Representative expressly
for use therein; provided, further, that neither BCI nor BCRC shall be liable to
any Underwriter, any affiliate of an Underwriter or any person controlling such
Underwriter under the indemnity agreement in this subsection (a) with respect to
any of such documents to the extent that any such loss, claim, damage or
liability of such Underwriter or such affiliate or such controlling person
results from the fact that such Underwriter sold the Certificates to a person to
whom there
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was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference), whichever is most recent, if
BCI and/or BCRC has previously furnished copies thereof to the Representative.
(b) Each Underwriter agrees to indemnify and hold harmless BCRC, its
directors, its officers who sign the Registration Statement, BCI and each person
who controls BCRC within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from BCRC and BCI to each Underwriter in Subsection (a) above, but only with
reference to information relating to such Underwriter furnished to BCRC or BCI
in writing by such Underwriter through the Representative expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to Subsections
(a) or (b) above, such person (the "Indemnified Person") shall promptly notify
the person against whom such indemnity may be sought (the "Indemnifying Person")
in writing, and the Indemnifying Person, at its option or upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and to control the defense
and shall pay the fees and expenses of such counsel related to such proceeding.
In any such proceeding, any Indemnified Person shall have the right to retain
its own counsel and to participate in the defense, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed in
writing to the contrary, (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred to the extent reimbursement is required after
giving consideration to the preceding sentence. Any such separate firm for the
Underwriters, each affiliate of any Underwriter which assists such Underwriter
in the distribution of the Certificates and such control persons of the
Underwriters shall be designated in writing by J.P. Morgan Securities Inc. and
any such separate firm for BCRC, its directors, its officers who sign the
Registration Statement, BCI and such control persons of BCRC shall be designated
in writing by BCRC or BCI. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability for which indemnification is provided pursuant to
subsection (a) or (b) of this Section 7 by reason of such settlement or
judgment. No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect
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<PAGE>
any settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in subsections (a) or (b) above
is unavailable to an Indemnified Person in respect of any losses, claims,
damages, liabilities or expenses referred to therein and to which such
Indemnified Person is entitled to indemnification in accordance with the
preceding terms of this Section 7, then each Indemnifying Person under such
subsection, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by BCRC and BCI on
the one hand and the Underwriter on the other hand from the offering of the
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of BCRC and BCI on the one hand and the Underwriter on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by BCRC and BCI on the
one hand and the Underwriter on the other shall be deemed to be in the same
respective proportions as the net proceeds from the offering (before deducting
expenses) received by BCRC and the total underwriting discounts and the
commissions received by the Underwriter bear to the aggregate public offering
price of the Certificates. The relative fault of BCRC and BCI on the one hand
and the Underwriter on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by BCRC or BCI or by the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
BCRC, BCI and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if BCRC and BCI were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages, liabilities and expenses referred to in this subsection (d) shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total price at which
the Certificates underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several in proportion to the
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<PAGE>
respective principal amount of the Certificates set forth opposite their names
in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
Indemnified Person referred to above at law or in equity.
(e) The indemnity and contribution agreements contained in this Section
7 and the representations and warranties of each of BCRC and BCI set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of BCRC or BCI, its officers or directors or any other person controlling
BCRC or BCI and (iii) acceptance of and payment for any of the Certificates.
8. Termination. Notwithstanding anything herein contained, this
Agreement may be terminated in the absolute discretion of the Representative, by
notice given to BCRC, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange or the National Association of Securities
Dealers, Inc., (ii) trading of any securities of or guaranteed by BCRC or BCI
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities, or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the reasonable
judgment of the Representative, is material and adverse and which, in the
reasonable judgment of the Representative, makes it impracticable or inadvisable
to market the Certificates on the terms and in the manner contemplated in the
Prospectus.
9. Effectiveness of Agreement; Default of Underwriters. This Agreement
shall become effective upon the later of (x) execution and delivery hereof by
the parties hereto and (y) release of notification of the effectiveness of the
Registration Statement (or, if applicable, any post-effective amendment) by the
Commission.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase the Certificates which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of the Certificates
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of the
Certificates to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of the
Certificates set forth opposite their respective names in Schedule I bears to
the aggregate principal amount of Certificates set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Representative may specify, to purchase the Certificates which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of the Certificates
that any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of the Certificates without the written consent of such
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<PAGE>
Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail
or refuse to purchase Certificates which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Certificates with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of Certificates to be purchased on such date, and arrangements
satisfactory to the Representative, BCI and BCRC for the purchase of such
Certificates are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or BCI or BCRC. In any such case either you or BCI or BCRC shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. Expenses Upon Termination. If this Agreement shall be terminated by
the Underwriters, or any of them, because of any failure or refusal on the part
of BCRC or BCI to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason BCRC or BCI shall be unable to perform its
obligations under this Agreement or any condition of the Underwriters,
obligations set forth in Section 6 cannot be fulfilled, BCRC and BCI agree to
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves severally, for all reasonable out-of-pocket
expenses (including the reasonable fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder; provided, that this Section 10 shall not
apply to a termination of this Agreement pursuant to Section 8 or 9.
11. Successors. This Agreement shall inure to the benefit of and be
binding upon BCRC, BCI, the Underwriters, each affiliate of any Underwriter
which assists such Underwriter in the distribution of the Certificates, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Certificates from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
12. Action by Representative; Notices. Any action by the Underwriters
hereunder may be taken by the Representative on behalf of the Underwriters, and
any such action taken by the Representative shall be binding upon the
Underwriters. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given when received. Notices to the
Underwriter shall be given to the Representative c/o J.P. Morgan Securities
Inc., 60 Wall Street, New York, New York 10060-0060 (Facsimile No.: (212)
648-5909); Attention: Syndicate Desk. Notices to BCRC shall be given to it at
Post Office Box 5544, Burlington, Vermont 05402, (Facsimile No.: (802)
654-8432); Attention: Vice President-Finance, with a copy to Morgan, Lewis &
Bockius LLP; Attention: Christopher Hilbert. Notices to BCI shall be given to it
at 1600 Mountain View Drive, Colchester, Vermont 05446, (Facsimile No.: (802)
654-8432); Attention: Vice President - Finance, with a copy to Morgan, Lewis
Bockius LLP; Attention: Christopher Hilbert.
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<PAGE>
13. Counterparts; Applicable Law. THIS AGREEMENT MAY BE SIGNED IN
COUNTERPARTS, EACH OF WHICH SHALL BE AN ORIGINAL AND ALL OF WHICH TOGETHER SHALL
CONSTITUTE ONE AND THE SAME INSTRUMENT. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return the enclosed counterparts hereof, whereupon it
will become a binding agreement among BCRC, BCI and the Underwriters in
accordance with its terms.
Very truly yours,
BOMBARDIER CREDIT RECEIVABLES
CORPORATION
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
BOMBARDIER CAPITAL INC.
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
Accepted: September __, 2000
J.P. MORGAN SECURITIES INC.
Acting on behalf of itself and
the several Underwriters listed
in Schedule I hereto
By: ___________________________
Name:
Title:
<PAGE>
SCHEDULE I
PRINCIPAL AMOUNT OF
SECURITIES TO BE PURCHASED
--------------------------
<TABLE>
<CAPTION>
Principal Amount of Principal Amount of
Underwriter Class A Certificates Class B Certificates
----------- -------------------- --------------------
<S> <C> <C>
J.P. Morgan Securities Inc..................... $__________ $__________
___________________________.................... ___________ ___________
___________________________.................... ___________ ___________
Total $___________ $__________
</TABLE>
