EXECUTION COPY
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BOMBARDIER CREDIT RECEIVABLES CORPORATION
Depositor
BOMBARDIER CAPITAL INC.
Servicer
and
BANKERS TRUST COMPANY
Trustee
Bombardier Receivables Master Trust I
POOLING AND SERVICING AGREEMENT
Dated as of January 1, 1994
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Definitions.................................................... 1
SECTION 1.02. Other Definitional Provisions.................................. 24
ARTICLE II
Conveyance of Receivables
SECTION 2.01. Conveyance of Receivables...................................... 25
SECTION 2.02. Acceptance by Trustee.......................................... 27
SECTION 2.03. Representations and Warranties of the Depositor Relating
to the Depositor and this Agreement.............. 27
SECTION 2.04. Representations and Warranties of the Depositor Relating
to the Receivables............................... 31
SECTION 2.05. Addition of Accounts........................................... 34
SECTION 2.06. Covenants of the Depositor..................................... 36
SECTION 2.07. Removal of Accounts............................................ 40
SECTION 2.08. Removal of Ineligible Accounts................................. 42
SECTION 2.09. Sale of Ineligible Receivables................................. 43
SECTION 2.10. Discount Option................................................ 43
ARTICLE III
Administration and Servicing
of Receivables
SECTION 3.01. Acceptance of Appointment and Other Matters Relating
to the Servicer.................................. 44
SECTION 3.02. Servicing Compensation......................................... 46
SECTION 3.03. Representations, Warranties and Covenants of the Servicer...... 47
SECTION 3.04. Reports and Records for the Trustee............................ 50
SECTION 3.05. Annual Servicer's Certificate.................................. 50
SECTION 3.06. Annual Independent Public Accountants' Servicing Report........ 50
SECTION 3.07. Tax Treatment.................................................. 51
SECTION 3.08. Notices to BCI................................................. 51
SECTION 3.09. Adjustments.................................................... 51
i
ARTICLE IV
Rights of Certificateholders and
Allocation and Application of Collections
SECTION 4.01. Rights of Certificateholders................................... 52
SECTION 4.02. Establishment of the Collection Account........................ 53
SECTION 4.03. Allocations and Applications of Collections and Other Funds.... 54
SECTION 4.04. Unallocated Principal Collections.............................. 55
ARTICLE V
Distributions and Reports to
Certificateholders
SECTION 5.01. Distributions and Reports to Certificateholders................ 56
ARTICLE VI
The Certificates
SECTION 6.01. The Certificates............................................... 56
SECTION 6.02. Authentication of Certificates................................. 57
SECTION 6.03. New Issuances.................................................. 57
SECTION 6.04. Registration of Transfer and Exchange of Certificates.......... 60
SECTION 6.05. Mutilated, Destroyed, Lost or Stolen Certificates.............. 63
SECTION 6.06. Persons Deemed Owners.......................................... 63
SECTION 6.07. Access to List of Registered Certificateholders' Names
and Addresses.................................... 64
SECTION 6.08. Book-Entry Certificates........................................ 64
SECTION 6.09. Notices to Depository.......................................... 65
SECTION 6.10. Definitive Certificates........................................ 65
SECTION 6.11. Global Certificate; Exchange Date.............................. 66
SECTION 6.12. Meetings of Investor Certificateholders........................ 67
ARTICLE VII
Other Matters Relating
to the Depositor
SECTION 7.01. Liability of the Depositor..................................... 70
SECTION 7.02. Limitation on Liability of the Depositor....................... 70
SECTION 7.03. Depositor Indemnification of the Trust and the Trustee......... 70
ii
ARTICLE VIII
Other Matters Relating
to the Servicer
SECTION 8.01. Liability of the Servicer...................................... 71
SECTION 8.02. Merger or Consolidation of, or Assumption of, the
Obligations of the Servicer...................... 71
SECTION 8.03. Limitation on Liability of the Servicer and Others............. 72
SECTION 8.04. Servicer Indemnification of the Trust and the Trustee.......... 72
SECTION 8.05. The Servicer Not to Resign..................................... 73
SECTION 8.06. Access to Certain Documentation and Information Regarding
the Receivables.................................. 73
SECTION 8.07. Delegation of Duties........................................... 74
SECTION 8.08. Examination of Records......................................... 74
ARTICLE IX
Early Amortization Events
SECTION 9.01. Early Amortization Events...................................... 74
SECTION 9.02. Additional Rights Upon the Occurrence of Certain Events........ 77
ARTICLE X
Servicer Defaults
SECTION 10.01. Servicer Defaults............................................. 78
SECTION 10.02. Trustee to Act; Appointment of Successor...................... 80
iii
ARTICLE XI
The Trustee
SECTION 11.01. Duties of Trustee............................................. 82
SECTION 11.02. Certain Matters Affecting the Trustee......................... 84
SECTION 11.03. Trustee Not Liable for Recitals in Certificates;
No Responsibility for Filings, Etc.............. 86
SECTION 11.04. Trustee May Own Certificates.................................. 86
SECTION 11.05. The Servicer to Pay Trustee's Fees and Expenses............... 86
SECTION 11.06. Eligibility Requirements for Trustee.......................... 87
SECTION 11.07. Resignation or Removal of Trustee............................. 87
SECTION 11.08. Successor Trustee............................................. 88
SECTION 11.09. Merger or Consolidation of Trustee............................ 89
SECTION 11.10. Appointment of Co-Trustee or Separate Trustee................. 89
SECTION 11.11. Tax Returns................................................... 90
SECTION 11.12. Trustee May Enforce Claims Without Possession of
Certificates.................................... 91
SECTION 11.13. Suits for Enforcement......................................... 91
SECTION 11.14. Representations and Warranties of Trustee..................... 91
SECTION 11.15. Maintenance of Office or Agency............................... 92
ARTICLE XII
Termination
SECTION 12.01. Termination of Trust.......................................... 92
SECTION 12.02. Final Distribution............................................ 92
SECTION 12.03. Depositor's Termination Rights................................ 94
iv
ARTICLE XIII
Miscellaneous Provisions
SECTION 13.01. Amendment..................................................... 94
SECTION 13.02. Protection of Right, Title and Interest to Trust.............. 96
SECTION 13.03. Limitation on Rights of Certificateholders.................... 97
SECTION 13.04. No Petition................................................... 98
SECTION 13.05. GOVERNING LAW................................................. 98
SECTION 13.06. Notices....................................................... 99
SECTION 13.07. Severability of Provisions.................................... 99
SECTION 13.08. Assignment.................................................... 99
SECTION 13.09. Certificates Nonassessable and Fully Paid.....................100
SECTION 13.10. Further Assurances............................................100
SECTION 13.11. No Waiver; Cumulative Remedies................................100
SECTION 13.12. Counterparts..................................................100
SECTION 13.13. Third-Party Beneficiaries.....................................100
SECTION 13.14. Actions by Certificateholders.................................100
SECTION 13.15. Rule 144A Information.........................................101
SECTION 13.16. Merger and Integration........................................101
SECTION 13.17. Headings......................................................101
v
EXHIBITS
Exhibit A Form of BCRC Certificate
Exhibit B Form of Assignment of Receivables in Additional Accounts
Exhibit C Form of Annual Servicer's Certificate
Exhibit D Forms of Legends
Exhibit E Form of Letter of Representations
Exhibit F Forms of Certificates for European Transfer
Exhibit G-1 Form of Opinion of Counsel in Connection with Amendments and
Supplements
Exhibit G-2 Form of Opinion of Counsel in Respect of Additional Accounts
Exhibit H-1 Form of Reassignment of Receivables in Removed Accounts Pursuant
to Section 2.07
Exhibit H-2 Form of Reassignment of Receivables in Ineligible Accounts
Pursuant to Section 2.08
Exhibit I Form of Receivables Purchase Agreement
Exhibit J Form of Report of Independent Accountants on Compliance
SCHEDULES
Schedule 1 List of Accounts
Schedule 2 Collection Account Information
vi
POOLING AND SERVICING AGREEMENT dated as of January 1, 1994,
among BOMBARDIER CREDIT RECEIVABLES CORPORATION, a Delaware corporation, as
Depositor, BOMBARDIER CAPITAL INC., a Massachusetts corporation, as Servicer,
and BANKERS TRUST COMPANY, a New York banking corporation, as Trustee.
In consideration of the mutual agreements herein contained,
each party agrees as follows for the benefit of the other parties and for the
benefit of the Certificateholders and the other Beneficiaries to the extent
provided herein:
ARTICLE I
Definitions
SECTION 1.01. Definitions. Whenever used in this Agreement,
the following words and phrases shall have the following meanings:
"Account" shall mean each Initial Account and, from and after
the related Addition Date, each Additional Account. The term "Account"
shall not apply to any Removed Accounts reassigned or assigned to the
Depositor or the Servicer in accordance with the terms of this
Agreement.
"Addition Date" shall mean, with respect to Additional
Accounts, the date from and after which such Additional Accounts are to
be included as Accounts pursuant to Section 2.05(a) or (b) hereof.
"Addition Notice" shall mean a written notice provided by the
Depositor (or the Servicer on its behalf) to the Trustee specifying the
Additional Cut-Off Date and Addition Date for Additional Accounts.
"Additional Accounts" shall mean (i) each individual financing
account established by BCI with an Obligor pursuant to an Inventory
Security Agreement in the ordinary course of business and (ii) each
credit account established in the ordinary course of business by an
Affiliate of BCI with a customer or distributor of products
manufactured or distributed by such Affiliate, which credit account has
been purchased by BCI, and which account in each case is designated
pursuant to Section 2.05(a) or (b) hereof to be included as an Account
and is identified in the computer file or microfiche or written list
delivered to the Trustee by the Depositor pursuant to Section 2.01 or
Section 2.05(d) hereof, as applicable.
"Additional Cut-Off Date" shall mean, with respect to
Additional Accounts, the day specified in the Addition Notice delivered
with respect to such Additional Accounts pursuant to Section 2.05(c)
hereof.
'SS' 1.01
"Adjusted Invested Amount" shall mean, with respect to any
Series and for any date, an amount equal to the adjusted invested
amount specified in the related Supplement. The Adjusted Invested
Amount for any Series may be increased or decreased from time to time
as specified in the related Supplement.
"Adjustment Payment" shall have the meaning specified in
Section 3.09 hereof.
"Affiliate" shall mean, with respect to any specified Person,
any other Person controlling or controlled by or under common control
with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Agent" shall mean, with respect to any Series, the Person, if
any, so designated in the related Supplement.
"Agreement" shall mean this Pooling and Servicing Agreement,
as the same may from time to time be amended, modified or otherwise
supplemented, including, with respect to any Series or Class, the
related Supplement.
"Allocable Miscellaneous Payments" shall mean, with respect to
any Series and for any Collection Period, the product of the amount of
Miscellaneous Payments for such Collection Period and a fraction, the
numerator of which is the Invested Amount for such Series immediately
prior to the following Distribution Date and the denominator of which
is the Pool Invested Amount as of such time.
"Applicants" shall have the meaning specified in Section 6.07
hereof.
"Appointment Date" shall have the meaning specified in
Section 9.02 hereof.
"Assignment" shall have the meaning specified in Section
2.05(d) hereof.
"Authorized Newspaper" shall mean any newspaper or newspapers
of general circulation in New York City customarily published on each
Business Day, whether or not published on Saturdays, Sundays and
holidays.
"Available Subordinated Amount" shall mean, with respect to
any Series at any time of determination, an amount equal to the
available subordinated amount specified in the related Supplement at
such time.
2
'SS' 1.01
"BCI" shall mean Bombardier Capital Inc., a Massachusetts
corporation, and its successors in interest.
"BCRC" shall mean Bombardier Credit Receivables Corporation, a
Delaware corporation, and its successors in interest to the extent
permitted hereunder.
"BCRC Certificate" shall mean the certificates executed by the
Trustee on behalf of the Trust and authenticated by the Trustee
substantially in the form of Exhibit A hereto.
"Bearer Certificates" shall have the meaning specified in
Section 6.01 hereof.
"Beneficiary" shall mean any of the Holders of the Investor
Certificates or the Holder of the Variable Funding Certificate or the
Holder of the BCRC Certificate or any Supplemental Certificate and any
Enhancement Provider.
"Benefit Plan" shall have the meaning specified in Section
6.04(d)(ii) hereof.
"Bombardier Corporation" shall mean Bombardier Corporation, an
Idaho corporation, and its successors in interest.
"Book-Entry Certificates" shall mean beneficial interests in
the Investor Certificates, ownership and transfers of which shall be
made through book entries by a Depository as described in Section 6.08
hereof.
"Business Day" shall mean any day other than (a) a Saturday or
a Sunday or (b) another day on which banking institutions or trust
companies in the State of New York are authorized or obligated by law,
executive order or governmental decree to be closed.
"Cedel" shall mean Centrale de Livraison de Valeurs
Mobilieres S.A.
"Certificate" shall mean any of the Investor Certificates, the
Variable Funding Certificate, the BCRC Certificate or any Supplemental
Certificate.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the person who is the beneficial owner of a Book-Entry
Certificate.
"Certificate Rate" shall mean, with respect to any Series or
Class, the certificate rate specified therefor in the related
Supplement.
3
'SS' 1.01
"Certificate Register" shall have the meaning specified in
Section 6.04(a) hereof.
"Certificateholder" or "Holder" shall mean (x) a Registered
Certificateholder or the bearer of any Bearer Certificate (or Global
Certificate, as the case may be) or Coupon or (y) a Person in whose
name the BCRC Certificate or any Supplemental Certificate is registered
or (z) a Person in whose name the Variable Funding Certificate is
registered (including any pledgee of the Variable Funding Certificate).
"Class" shall mean, with respect to any Series, any one of the
classes of Investor Certificates of that Series.
"Closing Date" shall mean, with respect to any Series, the
Closing Date specified in the related Supplement.
"Collateral Security" shall mean, with respect to any
Receivable and subject to the terms of the Receivables Purchase
Agreement, the security interest, if any, granted by or on behalf of
the related Obligor with respect thereto, including a first priority
perfected security interest in any related Eligible Products.
"Collection Account" shall have the meaning specified in
Section 4.02 hereof.
"Collection Period" shall mean, with respect to any
Distribution Date, the calendar month preceding the month in which such
Distribution Date occurs.
"Collections" shall mean, without duplication, all payments by
or on behalf of Obligors received by the Servicer in respect of the
Receivables, in the form of cash, checks, wire transfers or any other
form of payment as provided in such Obligors' Inventory Security
Agreements or otherwise agreed upon between the applicable Obligors and
BCI or its Affiliates in connection with the extension of credit in the
ordinary course of their respective businesses. Collections of
Non-Principal Receivables shall include all Recoveries. Collections of
Insurance Proceeds with respect to Receivables which are not Defaulted
Receivables shall be deemed to be Collections of Principal Receivables.
"Common Depositary" shall mean the Person specified in the
applicable Supplement, in its capacity as common depositary for the
respective accounts of any Foreign Clearing Agencies.
"Concentration Account" shall have the meaning specified in
Section 3.03(a)(x) hereof.
4
'SS' 1.01
"Corporate Trust Office" shall mean the principal office of
the Trustee in the City of New York, at which at any particular time
its corporate trust business shall be administered, which office at the
date of the execution of this Agreement is located at Four ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust & Agency
Group, Structured Finance Team.
"Coupon" shall have the meaning specified in Section 6.01
hereof.
"Cut-Off Date" shall mean January 1, 1994.
"Defaulted Agreement" shall have the meaning specified in the
definition of "Liquidation Event" herein.
"Defaulted Amount" with respect to any Collection Period shall
mean an amount (which shall not be less than zero) equal to (a) the sum
for all the Accounts included in the Pool of the amount of Principal
Receivables which became Defaulted Receivables during the immediately
preceding Collection Period minus (b) the full amount of any such
Defaulted Receivables which are subject to reassignment or assignment
to the Depositor or the Servicer in accordance with the terms of this
Agreement; provided, however, that, if an Insolvency Event occurs with
respect to the Depositor or if a Liquidation Event has occurred, the
amounts of such Defaulted Receivables which are subject to reassignment
or assignment to the Depositor shall not be included in clause (b) and,
if an Insolvency Event occurs with respect to the Servicer or if a
Liquidation Event has occurred, the amount of such Defaulted
Receivables which are subject to assignment to the Servicer shall not
be included in clause (b).
"Defaulted Receivables" on any Determination Date shall mean
(a) all Receivables (other than Receivables that were designated as
Ineligible Receivables at the time of transfer to the Trust) in an
Account which are charged off by the Servicer as uncollectible in
respect of the immediately preceding Collection Period in accordance
with the provisions of Section 3.01(a) hereof and (b) all Receivables
which were Eligible Receivables when transferred to the Trust on the
initial Closing Date or the related Addition Date or on their
respective Transfer Date, which arose in an Account that thereafter
became an Ineligible Account and which were not Eligible Receivables
for any six consecutive Determination Dates (inclusive of the
Determination Date on which such determination is being made) after
such Account became an Ineligible Account. Receivables will not be
Defaulted Receivables merely because they become Ineligible
Receivables.
"Definitive Certificates" shall have the meaning specified in
Section 6.08 hereof.
5
'SS' 1.01
"Definitive Euro-Certificates" shall have the meaning
specified in Section 6.11(a) hereof.
"Deposit Date" shall mean each day on which the Servicer
deposits Collections in the Collection Account pursuant to Section 4.03
hereof.
"Depositor" shall mean Bombardier Credit Receivables
Corporation, a Delaware corporation, and its successors in interest to
the extent permitted hereunder.
"Depository" shall mean The Depository Trust Company, as
initial Depository, the nominee of which is CEDE & Co., or any other
organization registered as a "clearing agency" pursuant to Section 17A
of the Securities Exchange Act of 1934, as amended. The Depository
shall at all times be a "clearing corporation" as defined in Section
8-102(3) of the Uniform Commercial Code of the State of New York.
"Depository Agreement" shall mean, with respect to any Series
or Class, the agreement among the Depositor, the Trustee and the
initial Depository, dated as of the related Closing Date and
substantially in the form of Exhibit E hereto.
"Depository Participant" shall mean a broker, dealer, bank or
other financial institution or other Person for whom from time to time
a Depository effects book-entry transfers and pledges of securities
deposited with the Depository.
"Designated Balance" shall have the meaning set forth in
Section 2.08(b)(iii) hereof.
"Determination Date" with respect to any Distribution Date
shall mean the day that is two (2) Business Days prior to such
Distribution Date.
"Distribution Date" shall mean the 15th day of each month or,
if such day is not a Business Day, the next succeeding Business Day.
"Distribution Date Statement" shall mean, with respect to any
Series, a report prepared by the Servicer on each Distribution Date for
the immediately preceding Collection Period in substantially the form
set forth in the related Supplement.
"Domestic Inventory Receivables" shall mean Receivables
arising from extensions of credit and advances made directly or
indirectly by BCI to dealers located in the United States of certain
consumer, recreational and commercial products.
"Early Amortization Event" shall have the meaning specified in
Section 9.01
6
'SS' 1.01
hereof and, with respect to any Series, shall also mean any Early
Amortization Event specified in the related Supplement.
"Early Amortization Period" shall mean, with respect to any
Series, the period beginning at the close of business on the day on
which an Early Amortization Event occurs or is deemed to have occurred,
and in each case ending upon the earlier to occur of (a) the payment in
full to the Certificateholders of such Series of the Invested Amount
with respect to such Series, (b) the Termination Date with respect to
such Series and (c) if such Early Amortization Period has resulted from
the occurrence of an Early Amortization Event described in Section
9.01(a) hereof, the end of the first Collection Period during which an
Early Amortization Event would no longer be deemed to exist pursuant to
Section 9.01(a) hereof, so long as no other Early Amortization Event
with respect to such Series shall have occurred and the scheduled
termination of the Revolving Period with respect to such Series shall
not have occurred.
"Eligible Account" shall mean (i) each individual financing
account established by BCI with an Obligor with respect to Eligible
Products pursuant to an Inventory Security Agreement in the ordinary
course of business, and (ii) each credit account established in the
ordinary course of business by an Affiliate of BCI with a purchaser
(including customers or distributors) of Eligible Products manufactured
or distributed by such Affiliate, which account has been purchased by
BCI, which, as of the date of determination with respect thereto: (a)
relates to an Obligor which is an Eligible Obligor and (b) is in
existence and maintained and serviced by BCI or an Affiliate of BCI, it
being understood that an Eligible Account may at the time of transfer
to the Trust and/or from time to time thereafter contain no
Receivables; provided, that any such Account referred to in clause (i)
or clause (ii) above shall not be an Eligible Account if BCI has
assigned (or granted any participation rights in) such Account or any
Receivables therein to any person other than the Depositor or the
Trust; and provided, further, that any Initial Account with respect to
which any required consent to the assignment to BCRC of the related
Repurchase Agreement (as defined in the Receivables Purchase Agreement)
shall not have been obtained on or prior to February 15, 1994 shall as
of such date be deemed an Ineligible Account.
"Eligible Deposit Account" shall mean either (a) a segregated
account with an Eligible Institution or (b) a segregated trust account
with the corporate trust department of a depository institution or
trust company organized under the laws of the United States or any one
of the states thereof, including the District of Columbia (or any
domestic branch of a foreign bank) having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any
of the securities of such depository institution or trust company shall
have a credit rating from each Rating Agency in one
7
'SS' 1.01
of its generic rating categories which signifies investment grade.
"Eligible Institution" shall mean (a) the corporate trust
department of the Trustee or (b) a depository institution or trust
company organized under the laws of the United States of America or any
one of the states thereof, or the District of Columbia (or any domestic
branch of a foreign bank) which at all times (i) has either (A) a
long-term unsecured debt rating of A2 or better by Moody's and of AAA
or better by Standard & Poor's or such other rating that is acceptable
to each Rating Agency, as evidenced by a letter from such Rating Agency
to the Trustee or (B) a certificate of deposit rating of P-1 by Moody's
and A-1+ by Standard & Poor's or such other rating that is acceptable
to each Rating Agency, as evidenced by a letter from such Rating Agency
to the Trustee and (ii) is a member of the FDIC. If so qualified, the
Trustee may be considered an Eligible Institution for the purposes of
clause (b) this definition.
"Eligible Investments" shall mean book-entry securities,
negotiable instruments or securities represented by instruments in
bearer or registered form having original or remaining maturities of
thirty (30) days or less, but in no event occurring later than the
Distribution Date next succeeding the Trustee's acquisition thereof,
which evidence:
(a) obligations of, or obligations fully guaranteed
by, the United States of America;
(b) demand deposits, time deposits or certificates of
deposit of any depository institution or trust company
incorporated under the laws of the United States of America or
any state thereof (or any domestic branch of a foreign bank)
and subject to supervision and examination by Federal or state
banking or depository institution authorities; provided,
however, that at the time of the Trust's investment or
contractual commitment to invest therein, the commercial
paper or other short-term unsecured debt obligations (other
than such obligations the rating of which is based on the
credit of a person or entity other than such depository
institution or trust company) thereof shall have a credit
rating from any individual Rating Agency in the highest
investment category granted thereby;
(c) commercial paper having, at the time of the
Trust's investment or contractual commitment to invest
therein, a rating from any individual Rating Agency in the
highest investment category granted thereby;
(d) investments in money market funds having a rating
from any individual Rating Agency in the highest investment
category granted thereby or otherwise approved in writing
thereby;
8
'SS' 1.01
(e) demand deposits, time deposits and certificates
of deposit which are fully insured by the FDIC and which are
offered or issued by a financial institution whose long-term
debt is rated Baa3 or better by Moody's;
(f) bankers' acceptances issued by any depository
institution or trust company referred to in clause (b) above;
(g) repurchase obligations with respect to any
security that is a direct obligation of, or fully guaranteed
by, the United States of America or any agency or
instrumentality thereof the obligations of which are backed by
the full faith and credit of the United States of America, in
either case entered into with (i) a depository institution or
trust company (acting as principal) described in clause (b) or
(ii) a depository institution or trust company the deposits of
which are insured by FDIC; and
(h) any other investment as may be permitted by any
individual Rating Agency without reducing or withdrawing the
rating of the Certificates of any Series.
"Eligible Obligor" shall mean an Obligor that, as of the date
of determination thereof, (a) in the case of Domestic Inventory
Receivables, is located in the United States of America (including its
territories and possessions) and (b) in the case of Domestic Inventory
Receivables and Other Account Receivables, has not been identified by
the Servicer as being the subject of any voluntary or involuntary
bankruptcy, insolvency, liquidation or receivership proceedings.
"Eligible Products" shall mean certain consumer, recreational
and commercial products, including, but not limited to, marine
equipment (boats and outboard engines), snowmobiles, snow-grooming
equipment, personal watercraft, recreational vehicles, manufactured
housing, motorcycles, lawn and garden equipment, personal computers and
consumer electronics and appliances and spares and parts relating to
certain products manufactured or distributed by BCI's Affiliates.
"Eligible Receivable" shall mean each Receivable:
(a) which was (x) originated by BCI or (y) originated
by an Affiliate of BCI and acquired by BCI, in the ordinary
course of business;
(b) which arose under an Account that at the time
such Receivable arose was an Eligible Account (whether or not
such Account was part of the Pool at the time the Receivable
arose);
9
'SS' 1.01
(c) which is owned by BCI at the time of sale by BCI
to the Depositor;
(d) which represents the obligation of an Obligor to
repay an advance made to or on behalf of such Obligor (or
credit extended to or on behalf of such Obligor) to finance
the acquisition of Eligible Products;
(e) which, in the case of Domestic Inventory
Receivables, at the time of creation and, except at the
Closing Date for the initial Series in the case of Receivables
that are payable in accordance with a prepayment schedule
providing for repayment in full regardless of whether the
related Eligible Products have been sold and with respect to
which the related Eligible Products have been sold, at the
time of transfer to the Trust is secured by, inter alia, a
first priority perfected security interest in the Eligible
Products relating thereto;
(f) which is not unenforceable as a result of any
violation of Requirements of Law applicable thereto and, in
the case of Domestic Inventory Receivables, the related
Inventory Security Agreement is not unenforceable as a result
of any violation of Requirements of Law applicable to any
party thereto;
(g) with respect to which all consents, licenses,
approvals or authorizations of, or registrations or
declarations with, any Governmental Authority required to be
obtained, effected or given by BCI or the Depositor in
connection with the creation of such Receivable or, if
applicable, the transfer thereof to the Depositor and the
Trust or, in the case of Domestic Inventory Receivables, the
performance by BCI of the Inventory Security Agreement
pursuant to which such Receivable was created, have been duly
obtained, effected or given and are in full force and effect;
(h) as to which at all times following the transfer
of such Receivable to the Trust, the Trust will have good and
marketable title thereto free and clear of all Liens arising
prior to the transfer or arising at any time other than (i)
Liens permitted by this Agreement and (ii) tax and certain
other statutory liens (including liens in favor of the Pension
Benefit Guaranty Corporation) which may arise thereafter and
which relate to Affiliates of the Depositor;
(i) which has been the subject of a valid transfer
and assignment from the Depositor to the Trust of all the
Depositor's right, title and interest therein (including, with
certain exceptions, any proceeds thereof);
(j) which will at all times be the legal, valid,
binding and assignable payment obligation of the Obligor
relating thereto, enforceable against such
10
'SS' 1.01
Obligor in accordance with its terms (as such terms may be
modified or revised from time to time with the consent of the
Servicer), except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws, now or hereafter in effect, affecting
the enforcement of creditors' rights in general and except as
such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity) or
the availability of equitable remedies;
(k) which at the time of transfer to the Trust is
enforceable against the Obligor to the extent of the full
principal amount of such Receivable, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws,
now or hereafter in effect, affecting the enforcement of
creditors' rights in general and except as such enforceability
may be limited by general principles of equity (whether
considered in a suit at law or in equity) or the availability
of equitable remedies;
(l) as to which, at the time of transfer of such
Receivable to the Trust, BCI and the Depositor have satisfied
all their respective obligations under this Agreement with
respect to such Receivable required to be satisfied at such
time;
(m) as to which, at the time of transfer of such
Receivable to the Trust, neither BCI nor the Depositor has
taken any action (or failed to take any action required under
this Agreement or the Receivables Purchase Agreement) which
would impair the rights of the Trust or the Certificateholders
therein; and
(n) which constitutes "chattel paper" or an "account"
as defined in Article 9 of the UCC as then in effect in the
State of Vermont;
provided, however, that "Eligible Receivables" shall not include any
Domestic Inventory Receivables (w) that has not been paid in full
within 491 days following the origination thereof, (x) in the case of a
Domestic Inventory Receivable which is due upon sale of the related
Eligible Product and not pursuant to a scheduled payment program, with
respect to which the related Eligible Products have been sold by the
related Obligor and the principal outstanding thereunder has not been
paid by the related Obligor within twenty-one (21) days following the
date of sale or (y) in the case of a Domestic Inventory Receivable that
is to be repaid pursuant to a scheduled payment program, with respect
to which any principal payment of such Receivable has not been paid in
full within twenty-one (21) days following its due date or (z) with
respect to which interest payments (aggregating at least $150 with
respect to Receivables under the same Account) are more than one
hundred and twenty (120) days delinquent.
11
'SS' 1.01
"Eligible Servicer" shall mean the Trustee or an entity which,
at the time of its appointment as Servicer, (a) is legally qualified
and has the capacity to service the Accounts, (b) in the sole
determination of the Trustee, which determination shall be conclusive
and binding, has demonstrated the ability to professionally and
competently service a portfolio of similar accounts in accordance with
high standards of skill and care and (c) is qualified to use the
software that is then currently being used to service the Accounts or
obtains the right to use or has its own software which is adequate to
perform its duties under this Agreement.
"Enhancement" shall mean the rights and benefits provided to
the Certificateholders of any Series or Class pursuant to any letter of
credit, surety bond, cash collateral account, spread account,
guaranteed rate agreement, maturity liquidity facility, tax protection
agreement, interest rate swap agreement or other similar arrangement.
The subordination of any Series or Class to any other Series or Class
or the Variable Funding Certificate or of the Retained Interest to any
Series or Class or the Variable Funding Certificate shall be deemed to
be an Enhancement.
"Enhancement Agreement" shall mean any agreement, instrument
or document governing the terms of any Series Enhancement or pursuant
to which any Series Enhancement is issued or outstanding.
"Enhancement Provider" shall mean the Person providing any
Enhancement, other than any Certificateholders (including any Holder of
the BCRC Certificate or any Supplemental Certificate) the Certificates
of which are subordinated to any Series or Class.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Euroclear Operator" shall mean ▇▇▇▇▇▇ Guaranty Trust Company
of New York, Brussels office, as operator of the Euroclear System.
"Exchange Date" shall mean any date that is after the Series
Issuance Date, in the case of Definitive Euro-Certificates in
registered form, or upon presentation of certification of non-United
States beneficial ownership (as described in Section 6.11) hereof, in
the case of Definitive Euro-Certificates in bearer form.
"FDIC" shall mean the Federal Deposit Insurance Corporation or
any successor entity thereto.
"Financing Guidelines" shall mean the written policies and
procedures of BCI
12
'SS' 1.01
and its Affiliates, as such policies and procedures may be amended from
time to time, (a) relating to the operation of BCI's floorplan
financing business, including the written policies and procedures for
determining the interest rate charged to Obligors, the other terms and
conditions relating to BCI's wholesale financing accounts, the
creditworthiness of Obligors and the extension of credit to Obligors,
(b) relating to the extension of credit by certain Affiliates of BCI to
their customers and distributors in connection with certain products
manufactured or distributed by such Affiliates, and the purchase of
such receivables by BCI, and (c) relating to the maintenance of
accounts and collection of receivables.
"Foreign Clearing Agency" shall mean Cedel and the Euroclear
Operator.
"Global Certificate" shall have the meaning specified in
Section 6.11(a) hereof.
"Governmental Authority" shall mean the United States of
America and any state or other political subdivision thereof and any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Ineligible Account" shall mean an Account that at the time of
determination is not an Eligible Account.
"Ineligible Receivable" shall mean any Receivable that arises
in an Eligible Account, which either on the related Transfer Date does
not qualify or thereafter fails to qualify as an Eligible Receivable.
"Initial Account" shall mean each individual financing account
established by BCI with an Obligor pursuant to an Inventory Security
Agreement in the ordinary course of business which is identified in the
computer file or microfiche or written list delivered to the Trustee on
the first Closing Date by the Depositor pursuant to Section 2.01
hereof.
"Insolvency Event" shall mean any event specified in
subsection (b) or (c) of Section 9.01 hereof.
"Insurance Proceeds" with respect to an Account shall mean any
amounts received by the Servicer pursuant to any policy of insurance
which is required to be paid to BCI pursuant to an Inventory Security
Agreement.
"Internal Revenue Code" shall mean the Internal Revenue Code
of 1986, as amended.
13
'SS' 1.01
"Inventory Security Agreement" shall mean, collectively, the
group of related agreements between and among BCI, the Obligor with
respect thereto and the related manufacturer or distributor, pursuant
to which (a) BCI agrees to extend credit to such Obligor to finance
Eligible Products manufactured by such manufacturer or distributed by
such distributor, (b) such Obligor grants to BCI a security interest in
the specific Eligible Products financed by BCI, and (c) such Obligor
agrees to repay advances made by BCI either (i) at the time of sale of
the related Eligible Products to which such advance relates or (ii) in
accordance with a repayment schedule providing for repayment in full of
the related advance.
"Invested Amount" shall mean, with respect to any Series and
for any date, an amount equal to the invested amount specified in the
related Supplement.
"Investor Certificateholder" shall mean the Holder of an
Investor Certificate.
"Investor Certificates" shall mean any one of the certificates
(including the Bearer Certificates, the Registered Certificates or any
Global Certificate) executed by the Trustee on behalf of the Trust and
authenticated by the Trustee, substantially in the form attached to the
related Supplement, other than the Variable Funding Certificate, the
BCRC Certificate and any Supplemental Certificate.
"Investors' Interest" shall have the meaning specified in
Section 4.01 hereof.
"Investors' Servicing Fee" shall mean the portion of the
Servicing Fee allocable to the Certificateholders pursuant to the terms
of the related Supplement.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), preference, participation interest, priority or
other security agreement or preferential arrangement of any kind or
nature whatsoever, including any conditional sale or other title
retention agreement and any financing lease having substantially the
same economic effect as any of the foregoing.
"Liquidation Event" shall mean any of the events specified in
clause (i) or (ii) below:
(i) (x) there occurs an Event of Default under (and as defined
in) any credit or loan agreement pursuant to which credit facilities
(including loans, loan commitments and letter of credit facilities) in
excess of $10,000,000 in the aggregate have been established or made
available to BCI, (y) BCI, the Depositor and the Trustee receive
written notice (the "First Notice") from any party to such agreement
stating that by
14
'SS' 1.01
reason of such Event of Default the loans outstanding to BCI or the
Depositor under such agreement in an aggregate amount in excess of
$10,000,000 (the "Defaulted Agreement") are immediately due and payable
and/or any credit commitment established thereunder in an aggregate
amount in excess of $10,000,000 is terminated and (z) the party
delivering the First Notice delivers, within thirty (30) days after
delivery of the First Notice, a second notice (the "Second Notice") to
BCI, the Depositor and the Trustee stating that (1) the First Notice
has not been rescinded, (2) the Event of Default has not been waived,
(3) the acceleration of loans under the Defaulted Agreement or the
termination of any credit commitment established thereunder has not
been rescinded or annulled, and (4) BCI has not paid all its
indebtedness and has not satisfied all its other obligations,
contingent or otherwise, under the Defaulted Agreement (other than
obligations which by the terms of the Defaulted Agreement survive the
termination of the Defaulted Agreement and the repayment of the credit
extended thereunder); or
(ii) any event specified in Section 9.01(b) or Section 9.01(c)
of this Agreement occurs with respect to BCI or the Depositor.
"Manager" shall mean the lead manager, manager or co-manager
or person performing a similar function with respect to an offering of
Definitive Euro-Certificates.
"Miscellaneous Payments" shall mean, with respect to any
Collection Period, the sum of (a) Adjustment Payments and Transfer
Deposit Amounts on deposit in the Collection Account on the related
Distribution Date received with respect to such Collection Period and
(b) Unallocated Principal Collections available to be treated as
Miscellaneous Payments pursuant to Section 4.04 hereof on such
Distribution Date.
"Monthly Servicing Fee" shall mean, with respect to any
Series, the amount specified therefor in the related Supplement.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., or its
successor.
"Non-Principal Collections" shall mean Collections under the
Receivables other than Principal Collections; provided that all
Recoveries shall be Non-Principal Collections.
"Non-Principal Receivables" with respect to any Account shall
mean all amounts billed to the related Obligor in respect of interest
and all other non-principal charges.
15
'SS' 1.01
"Notice Date" shall have the meaning specified in Section
2.05(c) hereof.
"Obligor" shall mean (i) a Person engaged generally in the
business of purchasing Eligible Products from a manufacturer, importer
or distributor thereof and holding such Eligible Products for sale in
the ordinary course of business or (ii) a Person that is a purchaser
(including customers or distributors) of certain Affiliates of BCI with
respect to certain products manufactured or distributed by such
Affiliates.
"Officers' Certificate" with respect to any corporation shall
mean, unless otherwise specified in this Agreement, a certificate
signed by (a) the Chairman of the Board, Vice Chairman of the Board,
President or any Vice President and (b) a Treasurer, Assistant
Treasurer, Secretary or Assistant Secretary of such corporation.
"Opinion of Counsel" shall mean a written opinion of counsel,
who may be in-house counsel of the Depositor or BCI and who shall be
reasonably acceptable to the Trustee.
"Other Account Receivables" shall mean Receivables arising
from extensions of credit made by Affiliates of BCI to customers of
such Affiliates with respect to certain products manufactured or
distributed by such Affiliates, which extensions of credit are used by
the related account debtors to purchase or finance such products and
which extensions of credit have been purchased by BCI from such
Affiliates.
"Permitted Transaction" shall have the meaning specified in
Section 2.06(f) hereof.
"Person" shall mean any legal person, including any
individual, corporation, partnership, association, joint-stock company,
trust, unincorporated organization, governmental entity or other entity
of similar nature.
"Pool" shall mean, at any time of determination, all Accounts
with respect to which the related Receivables have been transferred to
the Trust pursuant to Section 2.01 hereof and which constitute part of
the Trust Assets.
"Pool Available Subordinated Amount" shall mean, at any time
of determination, the sum of the Available Subordinated Amounts, if
any, for all outstanding Series at such time.
"Pool Balance" shall mean, as of the time of determination
thereof, the aggregate of Principal Receivables constituting Eligible
Receivables in the Pool on such date.
16
'SS' 1.01
"Pool Invested Amount" shall mean, at any time of
determination, the sum of the Invested Amounts for all outstanding
Series at such time.
"Principal Collections" shall mean Collections of principal
under the Receivables.
"Principal Receivables" with respect to an Account shall mean
amounts shown on the Servicer's records as Receivables (other than such
amounts which represent Non-Principal Receivables) payable by the
related Obligor.
"Principal Terms" shall mean, with respect to any Series:
(a) the name or designation;
(b) the initial principal amount (or method for
calculating such amount) and the currency in which it is
denominated;
(c) the Certificate Rate (or method for the
determination thereof);
(d) the payment date or dates and the date or dates
from which interest shall accrue;
(e) the method for allocating collections to
Certificateholders;
(f) the designation of any Series Accounts and the
terms governing the operation of any such Series Accounts;
(g) the Monthly Servicing Fee and the Investors'
Servicing Fee;
(h) the issuer and terms of any form of Enhancement
with respect thereto;
(i) the terms on which the Investor Certificates of
such Series may be exchanged for Investor Certificates of
another Series, repurchased by the Depositor or remarketed to
other investors;
(j) the Termination Date;
(k) the number of Classes of Investor Certificates of
such Series and, if more than one Class, the rights and
priorities of each such Class;
17
'SS' 1.01
(l) the extent to which the Investor Certificates of
such Series will be issuable in temporary or permanent global
form (and, in such case, the depositary for such global
certificate or certificates, the terms and conditions, if any,
upon which such global certificate may be exchanged, in whole
or in part, for Definitive Certificates, and the manner in
which any interest payable on a temporary or global
certificate will be paid);
(m) whether the Investor Certificates of such Series
may be issued in bearer form and any limitations imposed
thereon;
(n) the priority of such Series with respect to any
other Series;
(o) whether such Series will be part of a group; and
(p) any other terms of such Series.
"Purchase Price" shall mean, with respect to any Receivable
for any date on which such Receivable is to be purchased by the
Servicer from the Trust pursuant to Section 3.03(c) hereof, (a) an
amount equal to the amount payable by the Obligor in respect thereof as
reflected in the records of the Servicer as of the date of purchase
plus (b) interest, if any, accrued on such Receivable, at a per annum
rate equal to the rate being charged to the Obligor.
"Rating Agency" shall mean, with respect to any outstanding
Series or Class, each statistical rating agency selected by the
Depositor to rate the Investor Certificates of such Series or Class.
"Rating Agency Condition" shall mean, with respect to any
action, that, after the required notice has been given to the
applicable Rating Agencies, no such Rating Agency shall have notified
the Depositor, the Servicer or the Trustee in writing that such action
will result in a reduction or withdrawal of the rating of any
outstanding Series or Class with respect to which it is a Rating
Agency.
"Reassignment" shall have the meaning specified in Section
2.07(c) hereof.
"Receivables" shall mean, with respect to an Account, all
amounts shown on the Servicer's records as amounts payable by the
related Obligor, from time to time in respect of advances made by BCI
or by a BCI Affiliate to such Obligor to finance the acquisition of
Eligible Products by such Obligor, together, if applicable, with the
rights under the group of writings evidencing such amounts and the
security interest created in connection therewith. Receivables which
become Defaulted Receivables shall not be
18
'SS' 1.01
shown on the Servicer's records as amounts payable (and will cease to
be included as Receivables) on the day on which they become Defaulted
Receivables. Receivables which BCI is unable to transfer to the
Depositor pursuant to the Receivables Purchase Agreement or which the
Depositor is unable to transfer to the Trust as provided in Section
2.06(b) hereof and Receivables which arise in Removed Accounts from and
after the related Removal Date shall not be included in calculating the
amount of Receivables.
"Receivables Purchase Agreement" shall mean the agreement
between BCI and the Depositor, in substantially the form attached
hereto as Exhibit I, dated as of the date hereof, governing the terms
and conditions upon which the Depositor is acquiring the initial
Receivables transferred to the Trust on the Closing Date and all
Receivables acquired thereafter, as the same may from time to time be
amended, modified or otherwise supplemented.
"Record Date" shall mean, with respect to any Distribution
Date, the close of business on the day preceding such Distribution
Date; provided that with respect to any Distribution Date for a Series
for which Definitive Certificates have been issued pursuant to Section
6.10 hereof, subsequent to the issuance of such Definitive Certificates
the Record Date for such Distribution Date shall be the last day of the
month preceding the month in which such Distribution Date occurs.
"Recoveries" on any Determination Date shall mean all amounts
received, including Insurance Proceeds and any proceeds resulting from
repurchase arrangements (or similar arrangements) between BCI and
manufacturers, importers and distributors of Eligible Products or other
parties, by the Servicer during the Collection Period immediately
preceding such Determination Date with respect to Receivables which
have previously become Defaulted Receivables.
"Registered Certificateholder" shall mean the Holder of a
Registered Certificate.
"Registered Certificates" shall have the meaning specified in
Section 6.01 hereof.
"Related Documents" shall mean, collectively, the Receivables
Purchase Agreement and, with respect to any Series, any applicable
Enhancement Agreement.
"Removal Commencement Date" shall have the meaning specified
in Section 2.08(a) hereof.
19
'SS' 1.01
"Removal Date" shall have the meaning specified in Section
2.07(b) hereof.
"Removal Termination Date" shall have the meaning specified in
Section 2.08(b) hereof.
"Removal Notice" shall have the meaning specified in Section
2.07(b) hereof.
"Removed Account" shall have the meaning specified in Section
2.07(b) hereof.
"Required Investor Percentage" shall mean, with respect to any
Series, the percentage specified therefor in the related Supplement.
"Required Pool Balance" shall mean, at any time of
determination, an amount equal to (i) the sum of the amounts for each
Series obtained by multiplying the required investor percentage for
such Series by the adjusted invested amount for such Series at such
time, before giving effect to any withdrawals or additions to any
excess funding accounts or similar arrangements for any Series on the
Distribution Date for which the Required Pool Balance is being
calculated plus (ii) the Pool Available Subordinated Amount on the
immediately preceding Determination Date (after giving effect to the
allocations, distributions, withdrawals and deposits to be made on the
Distribution Date following such Determination Date) minus (iii) any
amount on deposit in any reserve fund at such time. With respect to any
date through and including the first Determination Date, the amount
referred to in clause (ii) above shall be equal to $32,758,610.
"Requirements of Law" for any Person shall mean the
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation, or determination of an arbitrator or Governmental
Authority, in each case applicable to or binding upon such Person or to
which such Person is subject, whether Federal, state or local
(including usury laws and the Federal Truth in Lending Act).
"Responsible Officer" shall mean any Vice President, Assistant
Vice President, Assistant Secretary, Assistant Treasurer, and any other
officer of the Trustee customarily performing functions within the
corporate trust department and also, with respect to a particular
matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with that relevant subject.
"Retained Interest" shall have the meaning specified in
Section 4.01 hereof.
"Retained Participation Amount" shall mean, at any time of
determination, an
20
'SS' 1.01
amount equal to the sum of (i) the Pool Available Subordinated Amount
on the immediately preceding Determination Date (after giving effect to
the allocations, distributions, withdrawals and deposits to be made on
the Distribution Date following such Determination Date) and (ii) each
Series on such date of determination, obtained by multiplying the
excess retained percentage (as defined in the related Supplement) by
the adjusted invested amount for such Series at such time.
"Revolving Period" shall mean with respect to any Series, the
period specified as such in the related Supplement.
"Series" shall mean any series of Investor Certificates.
"Series Account" shall mean any deposit, trust, escrow,
reserve or similar account maintained for the benefit of the
Certificateholders of any Series or Class, as specified in any
Supplement.
"Series Cut-Off Date" shall mean, with respect to any Series,
the date specified as such in the related Supplement.
"Series Issuance Date" shall mean, with respect to any Series,
the date specified as such in the related Supplement.
"Service Transfer" shall have the meaning specified in Section
10.01 hereof.
"Servicer" shall initially mean BCI, in its capacity as
Servicer under this Agreement, and after any Service Transfer, the
Successor Servicer.
"Servicer Default" shall have the meaning specified in Section
10.01 hereof.
"Servicing Fee" shall have the meaning specified in Section
3.02 hereof.
"Servicing Officer" shall mean any officer of the Servicer
involved in, or responsible for, the administration and servicing of
the Receivables whose name appears on a list of servicing officers
furnished to the Trustee by the Servicer as such list may from time to
time be amended.
"Standard & Poor's" shall mean Standard & Poor's Corporation
or its successor.
"Successor Servicer" shall have the meaning specified in
Section 10.02(a) hereof.
21
'SS' 1.01
"Supplement" shall mean, with respect to any Series or the
Variable Funding Certificate, a Supplement to this Agreement, executed
and delivered in connection with the original issuance of the Investor
Certificates of such Series or the Variable Funding Certificate, as
applicable, pursuant to Section 6.03 hereof, and all amendments thereof
and supplements thereto.
"Supplemental Certificate" shall have the meaning specified in
Section 6.03 hereof.
"Tax Opinion" shall mean, with respect to any action, an
Opinion of Counsel to the effect that, for Federal income and Vermont
state income tax purposes, (a) such action will not adversely affect
the characterization of the Investor Certificates of any outstanding
Series or Class as debt of BCRC, (b) such action will not cause or
constitute a taxable event with respect to any Certificateholders or
the Trust, and (c) in the case of Section 6.03(b) hereof, the Investor
Certificates of the new Series will be characterized as debt of BCRC.
"Termination Date" shall mean, with respect to any Series, the
termination date specified in the related Supplement.
"Termination Notice" shall have the meaning specified in
Section 10.01 hereof.
"Termination Proceeds" shall have the meaning specified in
Section 12.02(c) hereof.
"Transfer Agent and Registrar" shall have the meaning
specified in Section 6.04(a) hereof.
"Transfer Date" shall have the meaning specified in Section
2.01 hereof.
"Transfer Deposit Amount" shall mean, with respect to any
Receivable reassigned or assigned to the Depositor or the Servicer, as
applicable, pursuant to Section 2.04(c) or Section 3.03 hereof, the
amounts specified in such Sections.
"Trust" shall mean the Bombardier Receivables Master Trust I
created by this Agreement, the corpus of which shall consist of the
Trust Assets.
"Trust Assets" shall have the meaning specified in Section
2.01 hereof.
"Trust Liquidation Proceeds" shall have the meaning specified
in Section 9.02 hereof.
22
'SS' 1.01
"Trust Termination Date" shall have the meaning specified in
Section 12.01 hereof.
"Trustee" shall mean Bankers Trust Company, a New York banking
corporation, or its successor in interest, or any successor trustee
appointed as herein provided.
"UCC" shall mean the Uniform Commercial Code, as amended from
time to time, as in effect in any specified jurisdiction.
"Unallocated Principal Collections" shall have the meaning
specified in Section 4.04 hereof.
"Variable Funding Amount" shall mean the amount specified in
the related Supplement.
"Variable Funding Certificate" shall mean the certificate
executed by the Trustee on behalf of the Trust and authenticated by the
Trustee, substantially in the form attached to the related Supplement.
"Variable Funding Interest" shall have the meaning specified
in Section 4.01 hereof.
"Vice President" when used with respect to the Depositor and
Servicer shall mean any vice president whether or not designated by a
number or word or words added before or after the title "vice
president".
SECTION 1.02. Other Definitional Provisions. (a) All terms
defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Agreement or in any such certificate or other document shall control.
23
'SS' 1.02
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section, Schedule
and Exhibit references contained in this Agreement are references to Sections,
Schedules and Exhibits in or to this Agreement unless otherwise specified; and
the term "including" shall mean "including without limitation".
(d) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the femi nine and neuter genders of such terms.
ARTICLE II
Conveyance of Receivables
SECTION 2.01. Conveyance of Receivables. By execution of this
Agreement, the Depositor does hereby sell, transfer, assign, set over and
otherwise convey, without recourse (except as expressly provided herein), to the
Trust for the benefit of the Certificateholders and the other Beneficiaries on
the first Closing Date, in the case of the Initial Accounts, and on the
applicable Addition Date, in the case of Additional Accounts, (a) all of its
right, title and interest in, to and under the Receivables in each Eligible
Account and all Collateral Security with respect thereto owned by the Depositor
at the close of business on the Cut-Off Date, in the case of the Initial
Accounts, and on the applicable Additional Cut-Off Date, in the case of
Additional Accounts, and all monies due or to become due and all amounts
received with respect thereto and all proceeds thereof (including "proceeds", as
defined in Section 9-306 of the UCC as in effect in the State of Vermont, and
Recoveries) and (b) all of the Depositor's rights, remedies, powers and
privileges with respect to such Receivables under the Receivables Purchase
Agreement, but excluding any repurchase or other agreements with manufacturers,
importers or distributors relating to Obligors which are being financed by
Domestic Inventory Receivables. As of each Business Day prior to the earlier of
(i) an Appointment Date and (ii) the Trust Termination Date, on which
Receivables are created in the Eligible Accounts (a "Transfer Date"), the
Depositor does hereby sell, transfer, assign, set over and otherwise convey,
without recourse (except as expressly provided herein), to the Trust for the
benefit of the Certificateholders and the other Beneficiaries, all of its right,
title and interest in, to and under the Receivables in each such Eligible
Account (other than any Receivables created in (x) a Removed Account from and
after the applicable Removal Date, as provided in Section 2.07(c) hereof or (y)
an Ineligible Account from and after the applicable Removal Commencement Date,
as provided in Section 2.08(c) hereof) and all Collateral Security with respect
thereto owned by the Depositor at the close of business on such Transfer Date
and not theretofore conveyed to the Trust, all monies due or to become due and
all amounts received with respect thereto and all proceeds thereof (including
"proceeds", as
24
'SS' 2.01
defined in Section 9-306 of the UCC as in effect in the State of Vermont, and
Recoveries). Such property, together with all monies on deposit in, and Eligible
Investments credited to, the Collection Account or any Series Account, any
Enhancements and the Collateral Security with respect to the Receivables shall
collectively constitute the assets of the Trust (the "Trust Assets"). The
parties hereto intend that this Agreement constitute an absolute sale; provided,
however, that to the extent that this Agreement is deemed or recharacterized not
to constitute an absolute sale, the parties intend this transaction to create a
security interest under Article 9 of the UCC. The foregoing sale, transfer,
assignment, set-over and conveyance and any subsequent sales, transfers,
assignments, set-overs and conveyances do not constitute, and are not intended
to result in, the creation or an assumption by the Trust, the Trustee, any Agent
or any Beneficiary of any obligation of the Servicer, BCI, the Depositor,
Bombardier Corporation or any other Person in connection with the Accounts, the
Receivables or under any agreement or instrument relating thereto, including any
obligation to any Obligors.
In connection with such sales, the Depositor agrees to record
and file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) with respect to the Receivables now
existing and hereafter created for the sale of "chattel paper" and "accounts"
(in each case as defined in Section 9-105 of the UCC as in effect in any state
where the Depositor's or the Servicer's chief executive offices or books and
records relating to the Receivables are located) meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect the sale and assignment of the Receivables and the Collateral
Security to the Trust, and to deliver a file-stamped copy of such financing
statements or other evidence of such filing to the Trustee on or prior to the
first Closing Date, in the case of the Initial Accounts, and (if any additional
filing is so necessary) the applicable Addition Date, in the case of Additional
Accounts and take such further steps as shall be necessary or desirable to
preserve such interest. The Trustee shall be under no obligation whatsoever to
file such financing statement, or a continuation statement to such financing
statement, or to make any other filing under the UCC in connection with such
sales to the Trust.
In connection with such sales, the Depositor further agrees,
at its own expense, on or prior to the first Closing Date, in the case of the
Initial Accounts, and the applicable Addition Date, in the case of Additional
Accounts, (a) to cause BCI to indicate in its computer files as required by the
Receivables Purchase Agreement, that the Receivables created in connection with
the Accounts have been sold, and the Collateral Security assigned, to the
Depositor in accordance with the Receivables Purchase Agreement and sold to the
Trust pursuant to this Agreement for the benefit of the Certificateholders and
the other Beneficiaries and (b) to deliver to the Trustee (or cause BCI to do
so) a computer file or microfiche or written list containing a true and complete
list of all such Accounts specifying for each such Account, as of the Cut-Off
Date, in the case of the Initial Accounts, and the applicable Additional Cut-Off
Date, in the case of Additional Accounts, (i) its account number, (ii) the
25
'SS' 2.01
aggregate amount of Receivables, if any, outstanding in such Account and (iii)
the aggregate amount of Principal Receivables, if any, in such Account. Such
file or list, as supplemented from time to time to reflect Additional Accounts
and Removed Accounts, shall be marked as Schedule 1 to this Agreement and is
hereby incorporated into and made a part of this Agreement. The Trustee shall be
under no obligation whatsoever to verify the accuracy or completeness of the
information contained in Schedule 1 from time to time.
SECTION 2.02. Acceptance by Trustee. (a) The Trustee hereby
acknowledges its acceptance, on behalf of the Trust, of all right, title and
interest previously held by the Depositor to the property, now existing and
hereafter created, conveyed to the Trust pursuant to Section 2.01 hereof and
declares that it shall maintain such right, title and interest, upon the trust
herein set forth, for the benefit of the Certificateholders and the other
Beneficiaries. The Trustee further acknowledges that, prior to or simultaneously
with the execution and delivery of this Agreement, the Depositor delivered to
the Trustee the computer file or microfiche or written list relating to the
Initial Accounts described in the last paragraph of Section 2.01 hereof.
(b) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement.
SECTION 2.03. Representations and Warranties of the Depositor
Relating to the Depositor and this Agreement. The Depositor hereby represents
and warrants to the Trust and to the Trustee as of the first Closing Date and
each Series Issuance Date that:
(a) Organization and Good Standing. The Depositor is a
corporation duly organized and validly existing and in good standing
under the law of the State of Delaware and has, in all material
respects, full corporate power, authority and legal right to own its
properties and conduct its business as such properties are presently
owned and such business is presently conducted, and to execute, deliver
and perform its obligations under this Agreement.
(b) Due Qualification. The Depositor is duly qualified to do
business and, where necessary, is in good standing as a foreign
corporation (or is exempt from such requirement) and has obtained all
necessary licenses and approvals in each jurisdiction in which the
conduct of its business requires such qualification except where the
failure to so qualify or be in good standing or obtain licenses or
approvals would not have a material adverse effect on its ability to
perform its obligations hereunder.
(c) Due Authorization. The execution and delivery of this
Agreement and the applicable Supplement and the Related Documents and
the consummation of the transactions provided for or contemplated by
this Agreement and the applicable
26
'SS' 2.03
Supplement and the Related Documents, have been duly authorized by the
Depositor by all necessary corporate action on the part of the
Depositor.
(d) No Conflict. The execution and delivery of this Agreement,
the applicable Supplement and the Related Documents, the performance of
the transactions contemplated by this Agreement and the applicable
Supplement and the Related Documents and the fulfillment of the terms
hereof and thereof, will not conflict with, result in any breach of any
of the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust, or other
instrument to which the Depositor is a party or by which it or its
properties are bound, except to the extent that such conflict, breach
or default will not have a materially adverse effect on the Depositor's
ability to perform its obligations hereunder and thereunder.
(e) No Violation. The execution and delivery of this
Agreement, the applicable Supplement and the Related Documents, the
performance of the transactions contemplated by this Agreement and the
applicable Supplement and the Related Documents and the fulfillment of
the terms hereof and thereof applicable to the Depositor, will not
conflict with or violate any material Requirements of Law applicable to
the Depositor.
(f) No Proceedings. There are no pending proceedings or, to
the best knowledge of the Depositor, investigations pending or
threatened against the Depositor before any Governmental Authority (i)
asserting the invalidity of this Agreement, the applicable Supplement,
any of the Related Documents or the Certificates, (ii) seeking to
prevent the issuance of the Certificates or the consummation of any of
the transactions contemplated by this Agreement and the applicable
Supplement or the Related Documents, (iii) seeking any determination or
ruling that, in the reasonable judgment of the Depositor, would
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement and the applicable Supplement or the
Related Documents, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Agreement and the applicable Supplement, the Related Documents or the
Certificates or (v) seeking to affect adversely the income tax
attributes of the Trust under United States Federal or State income or
franchise tax systems.
(g) All Consents Required. All appraisals, authorizations,
consents, orders, approvals or other actions of any Person or of any
governmental body or official required for the execution and delivery
by the Depositor of this Agreement, the applicable Supplement and the
Related Documents, the performance by the Depositor of the transactions
contemplated by this Agreement, the applicable Supplement and any
27
'SS' 2.03
of the Related Documents, and the fulfillment by the Depositor of the
terms hereof and thereof, have been obtained.
(h) Enforceability. This Agreement and the applicable
Supplement and the Related Documents each constitutes a legal, valid
and binding obligation of the Depositor enforceable against the
Depositor in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting
the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity) and the availability of
equitable remedies.
(i) Record of Accounts. As of the first Closing Date, in the
case of the Initial Accounts, as of the applicable Addition Date, in
the case of the Additional Accounts, and, as of the applicable Removal
Date, in the case of Removed Accounts, and as of the applicable Removal
Termination Date, in the case of Removed Accounts, Schedule 1 to this
Agreement (as amended from time to time) is an accurate and complete
listing in all material respects of all the Accounts as of the Cut-Off
Date, the applicable Additional Cut-Off Date the applicable Removal
Date or the applicable Removal Termination Date, as the case may be,
and the information contained therein with respect to the identity of
such Accounts and the Receivables existing thereunder is true and
correct in all material respects as of the Cut-Off Date, such
applicable Additional Cut-Off Date, such Removal Date or such Removal
Termination Date, as the case may be.
(j) Place of Business. The principal place of business of the
Depositor is in Burlington, Vermont, and the offices where the
Depositor keeps its records concerning the Receivables and related
contracts are in Burlington, Vermont.
(k) Use of Proceeds. No proceeds of the issuance of any
Certificate will be used by the Depositor to purchase or carry any
margin security.
(l) Not an Investment Company. The Depositor is not an
"investment company" or "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or is
exempt from all provisions thereof.
(m) Valid Transfer. This Agreement or, in the case of
Additional Accounts, the related Assignment constitutes a valid sale,
transfer and assignment to the Trust of all right, title and interest
of the Depositor in the Receivables and any Collateral Security whether
then existing or thereafter created and the proceeds thereof (other
than
28
'SS' 2.03
Insurance Proceeds) and all of the Depositor's rights, remedies,
powers and privileges with respect to the Receivables under the
Receivables Purchase Agreement (excluding, however, any repurchase or
other agreements with manufacturers, importers or distributors relating
to Obligors which are being financed by Domestic Inventory Receivables)
and, upon the filing of the financing statements described in Section
2.01 hereof with the Secretary of State of the State of Vermont, and in
the case of the Receivables hereafter created and the proceeds thereof,
upon the creation thereof, the Trust shall have a first priority
perfected ownership interest in such property, except for Liens
permitted under Section 2.06(a) hereof and tax and certain other
statutory liens (including liens in favor of the Pension Benefit
Guaranty Corporation); provided, however, that if this Agreement or, in
the case of Additional Accounts, the related Assignment, is deemed to
be a grant to the Trust of a security interest under the UCC as in
effect in the State of Vermont in such property, then upon the filing
of the financing statements described in Section 2.01 hereof with the
Secretary of State of the State of Vermont and in the case of the
Receivables hereinafter created and the proceeds thereof, upon the
creation thereof, the Trust shall have a first priority perfected
security interest in such property except for Liens permitted under
Section 2.06(a) hereof and tax and certain other statutory liens
(including liens in favor of the Pension Benefit Guaranty Corporation).
Except as otherwise provided in this Agreement, neither the Depositor
nor any Person claiming through or under the Depositor has any claim to
or interest in the Trust Assets.
The representations and warranties set forth in this Section
2.03 shall survive the transfer and assignment of the Receivables to the Trust
and the issuance of the Certificates. Upon discovery by the Depositor, the
Servicer, any Agent or the Trustee of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other parties, any Agent and to any Enhancement
Providers.
In the event that (i) any of the representations and
warranties set forth subsections (a) through (l) of this Section 2.03 have been
breached or (ii) the representation and warranty set forth in subsection (m) of
this Section 2.03 has been breached and this Agreement does not constitute the
grant of a security interest in the Receivables and the Collateral Security (and
the proceeds thereof) under the UCC as then in effect in the State of Vermont
and, in the case of either clause (i) or (ii), such breach has a material
adverse effect on the interests of the Holder of the Variable Funding
Certificate or the Certificateholders, then either the Trustee, the Holder of
the Variable Funding Certificate, or the Holders of Investor Certificates
evidencing not less than a majority in aggregate unpaid principal amount of all
outstanding Investor Certificates by notice then given in writing to the
Depositor and the Servicer (and to the Trustee, any Enhancement Providers if
given by the Holder of the Variable Funding Certificate or the
Certificateholders) may, unless a Liquidation Event has occurred, direct the
Depositor to purchase the Variable Funding Interest and/or Investors'
29
'SS' 2.03
Interest within sixty (60) days of such notice (or within such longer period as
may be specified in such notice), and the Depositor shall be obligated to make
such purchase on a Distribution Date occurring within such 60-day period on the
terms and conditions set forth below; provided, however, that no such purchase
shall be required to be made if, by the end of such 60-day period (or such
longer period as may be specified in such notice), the representations and
warranties set forth in this Section 2.03 shall be satisfied in all material
respects or, in the case of clause (ii) above, this Agreement then constitutes
the grant of a security interest in the Receivables and the Collateral Security
(and the proceeds thereof) under the UCC as then in effect in the State of
Vermont, and any material adverse effect on the Investors' Interest and/or the
Variable Funding Interest, as applicable, caused thereby shall have been cured.
The Depositor shall deposit in the Collection Account in immediately
available funds on the Business Day preceding such Distribution Date, in payment
for such purchase, an amount equal to the sum of the amounts specified therefor
with respect to each outstanding Series and/or the Variable Funding Certificate,
as applicable, in the related Supplement. Notwithstanding anything to the
contrary in this Agreement, such amounts shall be distributed to the
Certificateholders and/or the Holder of the Variable Funding Interest, as
applicable, on such Distribution Date in accordance with Article IV hereof and
the terms of each Supplement. If the Trustee, the Certificateholders or the
Holder of the Variable Funding Certificate give notice directing the Depositor
to purchase the Investors' Interest and/or the Variable Funding Interest as
provided above, the obligation of the Depositor to effect such purchase pursuant
to this Section 2.03 shall constitute the sole remedy respecting an event of the
type specified in the first sentence of this Section 2.03 available to the
Certificateholders and/or the Holder of the Variable Funding Certificate (or the
Trustee on behalf of such Certificateholders).
SECTION 2.04. Representations and Warranties of the Depositor Relating
to the Receivables. (a) Representations and Warranties. The Depositor hereby
represents and warrants to the Trust that:
(i) Each Receivable and all Collateral Security transferred
to the Trust on the first Closing Date or, in the case of Additional
Accounts, on the applicable Addition Date, and on each Transfer Date,
has been conveyed to the Trust free and clear of any Lien, except for
Liens permitted under Section 2.06(a) hereof.
(ii) With respect to each Receivable and all Collateral
Security transferred to the Trust on the first Closing Date or, in the
case of Additional Accounts, on the applicable Addition Date, and on
each Transfer Date, all consents, licenses, approvals or authorizations
of or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by the Depositor in
connection with the conveyance of such Receivable or Collateral
Security to the Trust have been duly obtained, effected or given and
are in full force and effect.
30
'SS' 2.04
(iii) On the Cut-Off Date, the first Closing Date and any
Series Issuance Date, each Account is an Eligible Account and, in the
case of Additional Accounts, on the applicable Additional Cut-Off Date
and Addition Date and on each Transfer Date, each such Additional
Account is an Eligible Account.
(iv) On the first Closing Date, in the case of the Initial
Accounts, and, in the case of the Additional Accounts, on the
applicable Additional Cut-Off Date, and on each Transfer Date, each
Receivable conveyed to the Trust on such date is an Eligible Receivable
or, if such Receivable is not an Eligible Receivable, such Receivable
is conveyed to the Trust in accordance with Section 2.09 hereof.
(v) With respect to each Receivable transferred to the
Trust on the first Closing Date, such Receivable is a Domestic
Inventory Receivable.
(vi) With respect to each Receivable transferred to the
Trust on the first Closing Date or, in the case of Additional Accounts,
on the applicable Addition Date, and on each Transfer Date, such
Receivable constitutes either an "account" or "chattel paper" for
purposes of the UCC as in effect in the State of Vermont from time to
time.
(vii) Each Domestic Inventory Receivable included in the Pool
Balance is and will be secured by a first priority perfected security
interest in the related Eligible Product.
(viii) On each Transfer Date, the Depositor is not insolvent.
(ix) The Depositor has caused BCI to clearly and
unambiguously ▇▇▇▇ all its computer records and all its microfiche
storage files regarding the Receivables conveyed to the Trust under
this Agreement as the property of the Trust.
(x) On the first Closing Date, all Repurchase Agreements
(as defined in the Receivables Purchase Agreement) with respect to the
Initial Accounts shall have been effectively assigned to BCRC (and all
required consents from the related manufacturers, importers and
distributors shall have been obtained) except with respect to Initial
Accounts the Receivables in which aggregate not more than 1% of the
Pool Balance as of the Cut-Off Date.
(b) Notice of Breach. The representations and warranties set
forth in this Section 2.04 shall survive the transfer and assignment of the
Receivables to the Trust and the issuance of the Certificates. Upon discovery by
the Depositor, the Servicer, any Agent or the Trustee of a breach, of any of the
representations and warranties set forth in this Section 2.04,
31
'SS' 2.04
the party discovering such breach shall give prompt written notice to the other
parties and to any Enhancement Providers.
(c) Reassignment. In the event any representation or warranty
under subsection (a) of this Section 2.04 is not true and correct as of the date
specified therein with respect to any Receivable or Account and such breach (i)
remains uncured for thirty (30) days (or such longer period as may be approved
by the Trustee) of the earlier to occur of the discovery of any such event by
the Depositor or the Servicer, or receipt by the Depositor or the Servicer of
written notice of any such event given by the Trustee, any Agent or any
Enhancement Providers and (ii) has a material adverse effect on the Investors'
Interest or the Variable Funding Interest in any such Receivable or Account,
then the Depositor shall accept a reassignment of such Receivable or, in the
case of such an untrue representation or warranty with respect to an Account,
all Receivables in such Account, on the Determination Date immediately
succeeding the day of such discovery or notice (or such other Determination Date
as may be agreed to by the Trustee) on the terms and conditions set forth in the
next succeeding paragraph; provided, however, that no such reassignment shall be
required to be made with respect to such Receivable if, by the end of such
30-day period (or such longer period as may be agreed to by the Trustee), the
breached representation or warranty shall then be true and correct in all
material respects and any material adverse effect caused thereby shall have been
cured.
The Depositor shall accept a reassignment of each such Receivable, and
shall direct the Servicer to deduct, subject to the next sentence, the principal
amount of such Receivables from the Pool Balance on or prior to the end of the
Collection Period in which such reassignment obligation arises. If, following
such deduction, the Pool Balance would be less than the Required Pool Balance on
the immediately preceding Determination Date (after giving effect to the
allocations, distributions, withdrawals and deposits to be made on the
Distribution Date following such Determination Date), then, unless a Liquidation
Event has occurred, not later than 12:00 noon (New York City time) on the day on
which such reassignment occurs, the Depositor shall deposit in the Collection
Account in immediately available funds the amount (the "Transfer Deposit
Amount") by which the Pool Balance would be less than the Required Pool Balance
(up to the principal amount of such Receivables); provided, that if the Transfer
Deposit Amount is not deposited as required by this sentence, then the principal
amounts of such Receivables shall only be deducted from the Pool Balance to the
extent that the Pool Balance is not reduced below the Required Pool Balance and
the Receivables the principal amounts of which have not been so deducted shall
not be reassigned to the Depositor and shall remain part of the Trust. Upon
reassignment of any such Receivable, but only after payment by the Depositor of
the Transfer Deposit Amount, if any, the Trust shall automatically and without
further action be deemed to sell, transfer, assign, set over and otherwise
convey to the Depositor, without recourse, representation or warranty, all the
right, title and interest of the Trust in and to such Receivable, all Collateral
Security and
32
'SS' 2.04
all moneys due or to become due with respect thereto and all proceeds thereof.
The Trustee shall execute such documents and instruments of transfer or
assignment and take such other actions as shall reasonably be requested by the
Depositor to effect the conveyance of such Receivables pursuant to this Section
2.04. The obligation of the Depositor to accept a reassignment of any such
Receivable and to pay any related Transfer Deposit Amount shall constitute the
sole remedy respecting the event giving rise to such obligation available to
Certificateholders or the Holder of the Variable Funding Certificate (or the
Trustee on behalf of Certificateholders or the Holder of the Variable Funding
Certificate).
SECTION 2.05. Addition of Accounts. (a) If, as of the close of business
on the last day of any Collection Period, (i) the Pool Balance on such day is
less than the Required Pool Balance as of the following Distribution Date (after
giving effect to the allocations, distributions, withdrawals and deposits to be
made on such Distribution Date), or (ii) the aggregate interest in the Pool
Balance represented by the BCRC Certificate and any Variable Funding Certificate
held by BCRC is less than 2% of the aggregate amount of Receivables included in
the Pool on such last day, then, unless a Liquidation Event has occurred, on or
prior to the tenth Business Day following the end of such Collection Period (the
"Addition Date"), the Depositor shall be required to purchase from BCI under the
Receivables Purchase Agreement (but BCI shall have no obligation to sell to
BCRC), and shall designate (pursuant to an Addition Notice delivered pursuant to
Section 2.05(c) hereof) and transfer to the Trust, the Receivables (and any
related Collateral Security) of additional Eligible Accounts of the Depositor to
be included as Accounts in a sufficient amount such that, after giving effect to
such addition: (x) the Pool Balance as of the close of business on the Addition
Date is at least equal to the Required Pool Balance and (y) the aggregate amount
of Receivables included in the Pool represented by the BCRC Certificate and any
Variable Funding Certificate held by BCRC, is equal to at least 2% of the
aggregate amount of Receivables included in the Pool and (z) the Pool shall
consist of the same type of Receivables as shall have been included in the Pool
prior to such addition (i.e., Domestic Inventory Receivables, Other Account
Receivables or both, as the case may be); provided, however, that so long as the
Trustee shall have received (whether in connection with the addition of Accounts
at such time or in connection with a previous addition of Accounts to the Trust)
a letter from each Rating Agency confirming that the inclusion of Accounts
relating to Other Account Receivables will not result in the reduction or
withdrawal of the rating of any Series or Class of Certificates then
outstanding, then, at the option of the Depositor and BCI, Additional Accounts
containing Other Account Receivables may be added in satisfaction of such
requirement even if the only Accounts previously included in the Trust are
Accounts containing Domestic Inventory Receivables; and provided, further, that
for purposes of clause (ii) and sub-clause (y) of this subsection (a), the
Variable Funding Certificate shall be deemed to be "held" by BCRC even though
the registered Holder thereof is BCI, as pledgee, so long as BCI has not
exercised its remedies in respect thereof. The Depositor shall satisfy the
conditions specified in subsection (d) of this Section 2.05 in designating such
Additional
33
'SS' 2.05
Accounts and conveying the related Receivables to the Trust. The failure of the
Depositor to transfer Receivables to the Trust as provided in this subsection
(a) solely as a result of the unavailability of a sufficient amount of Eligible
Receivables or subsequent to a Liquidation Event shall not constitute a breach
of this Agreement; provided, however, that any such failure will nevertheless
result in the occurrence of an Early Amortization Event described in Section
9.01(a) hereof.
(b) The Depositor may from time to time, at its sole
discretion, subject to the conditions specified in subsection (d) below,
voluntarily designate additional Eligible Accounts to be included as Accounts
and transfer to the Trust the Receivables (and the related Collateral Security)
of such Additional Accounts.
(c) Receivables and Collateral Security from Additional
Accounts conveyed to the Trust pursuant to subsection (b) above shall be sold to
the Trust effective on a date (the "Addition Date") specified in an Addition
Notice on or before the tenth Business Day but not more than the 30th day prior
to the related Addition Date (the "Notice Date"); provided, however, that unless
a Rating Agency Condition shall otherwise have been satisfied, the first
Addition Date following the Cut-Off Date shall occur no earlier than April 1,
1994 and any Addition Date thereafter shall occur not less than ninety (90) days
following the immediately preceding Addition Date.
(d) The Depositor shall be permitted to convey to the Trust
the Receivables and all Collateral Security related thereto in any Additional
Accounts designated by the Depositor as such pursuant to Section 2.05(a) or (b)
hereof only upon satisfaction of each of the following conditions on or prior to
the related Addition Date:
(i) the Depositor shall have provided the Trustee, any
Agent, the Rating Agencies and any Enhancement Providers with an
Addition Notice;
(ii) such Additional Accounts shall all be Eligible Accounts
and, with respect to Additional Accounts designated pursuant to
subsection (b) above, the Rating Agency Condition shall have been
satisfied;
(iii) the Depositor shall have delivered to the Trustee a
duly executed written assignment in substantially the form of Exhibit B
hereto (the "Assignment") and the computer file or microfiche or
written list required to be delivered pursuant to Section 2.01 hereof;
(iv) the Depositor shall, to the extent required by Section
4.03 hereof, have deposited in the Collection Account all Collections
with respect to such Additional Accounts since the Additional Cut-Off
Date;
34
'SS' 2.05
(v)(A) no selection procedures reasonably believed by the
Depositor to be adverse to the interests of the Beneficiaries or any
Enhancement Provider were used in selecting such Additional Accounts;
(B) the list of Additional Accounts delivered pursuant to clause (iii)
above is true and correct in all material respects as of the Additional
Cut-Off Date and (3) as of each of the Notice Date and the Addition
Date, neither BCI nor the Depositor were insolvent nor will any of them
have been made insolvent by such transfer nor are any of them aware of
any pending insolvency;
(vi) the addition of the Receivables arising in such
Additional Accounts shall not, in the reasonable belief of the
Depositor, result in the occurrence of an Early Amortization Event;
(vii) in the case of an addition of Receivables pursuant to
subsection (a) above, the additional Receivables are either Domestic
Inventory Receivables, Other Account Receivables or both; and
(viii) the Depositor shall have delivered to the Trustee and
any Enhancement Providers a certificate of a Vice President or more
senior officer confirming the items set forth in sub-clauses (ii)
through (vi) above; and
(e) The Depositor hereby represents and warrants as of the
applicable Addition Date as to the matters set forth in clause (v) of subsection
(d) of this Section 2.05. Upon discovery by the Depositor, the Servicer, any
Agent, the Trustee or any Enhancement Providers of a breach of the foregoing
representations and warranties, the party discovering the breach shall give
prompt written notice to the other parties, to any Agent and to any Enhancement
Providers.
(f) On or before each Addition Date, the Depositor shall have
delivered to the Trustee and any Enhancement Providers, an Opinion of Counsel,
substantially in the form of Exhibit G-2 hereto, with respect to the Receivables
in the Additional Accounts conveyed hereunder on such Addition Date.
SECTION 2.06. Covenants of the Depositor. The Depositor hereby
covenants that:
(a) No Liens. Except for (i) the conveyances hereunder or (ii)
as provided in subsection (c) or (d) of Section 6.03 hereof, the
Depositor will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist (other than
Liens permitted under Section 2.06(a) hereof and tax and certain other
statutory liens (including liens in favor of the Pension Benefit
Guaranty Corporation)) any Lien on, any Receivable or any Collateral
Security, whether now existing or
35
'SS' 2.06
hereafter created, or any interest therein, or the Depositor's rights,
remedies, powers or privileges with respect to the Receivables under
the Receivables Purchase Agreement, or the Variable Funding Interest,
the Variable Funding Certificate, the Retained Interest, the BCRC
Certificate or any Supplemental Certificate and the Depositor shall
defend the right, title and interest of the Trust in, to and under the
Receivables and the Collateral Security, whether now existing or
hereafter created, and such rights, remedies, powers and privileges,
against all claims of third parties claiming through or under the
Depositor. In addition, the Depositor shall maintain such records and
take such other actions as may be necessary or desirable to preserve
the Trust's perfected security interest in the Receivables.
(b) Account Allocations. In the event that the Depositor is
unable for any reason to transfer Receivables with respect to an
Initial Account or any Additional Account to the Trust when required in
accordance with the terms of this Agreement, then the Depositor agrees
that it shall allocate, after the occurrence of such event, payments on
each such Account with respect to the principal balance of such Account
first to the oldest principal balance of such Account and to have such
payments applied as Collections in accordance with the terms of this
Agreement. The parties hereto agree that Non-Principal Receivables,
whenever created, accrued in respect of Principal Receivables which
have been conveyed to the Trust shall continue to be a part of the
Trust notwithstanding any cessation of the transfer of additional
Principal Receivables to the Trust and Collections with respect thereto
shall continue to be allocated and paid in accordance with the terms of
this Agreement.
(c) Delivery of Collections. In the event that the Depositor,
BCI or any Affiliate thereof receives payments in respect of
Receivables included in any Account, the Depositor and BCI agree to pay
or cause to be paid to the Servicer or any Successor Servicer all
payments received thereby in respect of such Receivables as soon as
practicable after receipt thereof, but in no event later than two (2)
Business Days after the receipt by the Depositor or BCI. Receipt by
BCI's Affiliates of payments in respect of Other Account Receivables
will not be deemed to be received by BCI until received by BCI from
such Affiliates.
(d) Notice of Liens. The Depositor shall notify the Trustee
promptly after becoming aware of any Lien on any Receivable other than
the conveyances hereunder.
(e) Compliance with Law. The Depositor hereby agrees to comply
in all material respects with all Requirements of Law applicable to the
Depositor in connection with the performance of its obligations
hereunder the failure to comply with which would have a materially
adverse effect on the interests of the Beneficiaries.
36
'SS' 2.06
(f) Activities of the Depositor. The Depositor will not engage
in any business or activity of any kind or enter into any transaction
other than:
(i) the businesses, activities and transactions
contemplated and authorized by this Agreement or the Related
Documents, including without limitation:
(A) the execution and delivery by the
Depositor of, and the performance by the Depositor of
its obligations under, the BCRC Note and the Pledge
Agreement (each as defined in the Receivables
Purchase Agreement));
(B) acquiring, selling, financing, holding,
assigning, pledging and otherwise dealing with
wholesale and retail receivables arising out of the
sale of consumer, recreational and commercial
products and related activities and transactions;
(C) transferring such receivables to trusts
pursuant to a pooling and servicing agreement or
similar agreement or arrangement;
(D) authorizing, selling and delivering any
class of certificates or other securities of any such
trust;
(E) acquiring from BCI certificates issued
by one or more grantor trusts to which BCI
transferred receivables;
(F) issuing, selling, authorizing and
delivering one or more series and classes of bonds,
notes or other evidences of indebtedness secured or
collateralized by one or more pools of receivables or
by certificates of any class issued by one or more
trusts or by certificates of any class issued by a
grantor trust established by BCI (collectively, the
"Notes"), provided that the Depositor shall have no
liability under any Notes (other than the BCRC Note
(as defined in the Receivables Purchase Agreement))
except to the extent of the one or more pools of
receivables or the certificates securing or
collateralizing such Notes;
(G) holding and enjoying all of the rights
and privileges of any certificates issued by the
trusts to the Depositor under the related agreements
and holding and enjoying all of the rights and
37
'SS' 2.06
privileges of any class of any series of Notes,
including any class of Notes or certificates which
may be subordinate to any other class of Notes or
certificates, respectively;
(H) performing its obligations under the
agreements and any indenture or other agreement
(each, an "Indenture") pursuant to which any Notes
are issued;
(I) engaging in any activity and exercising
any powers permitted to corporations under the laws
of the State of Delaware that are related or
incidental to the foregoing and necessary, convenient
or advisable to accomplish the foregoing; and
(ii) any other activity in connection with which
the Depositor has given the Rating Agencies at least ten (10)
days' prior notice and the Rating Agency Condition has been
satisfied
(such businesses, activities and transactions referred to in clauses
(i) and (ii) collectively, "Permitted Transactions"). Notwithstanding
the foregoing, the Depositor will not establish or be depositor under
any other trust without prior Rating Agency approval.
(g) Indebtedness. Other than the BCRC Note (as defined in the
Receivables Purchase Agreement) the Depositor will not create, incur or
assume any indebtedness or issue any securities or sell or transfer any
receivables to a trust or other Person which issues securities in
respect of any such receivables, unless (i) any such indebtedness or
securities have no recourse to any assets of the Depositor other than
the specified assets to which such indebtedness or securities relate
and (ii) the Depositor has given the Rating Agencies at least ten (10)
days' prior notice and the Rating Agency Condition shall have been
satisfied in connection therewith prior to the incurrence or issuance
thereof.
(h) Guarantees. The Depositor will not become or remain
liable, directly or contingently, in connection with any indebtedness
or other liability of any other Person, whether by guarantee,
endorsement (other than endorsements of negotiable instruments for
deposit or collection in the ordinary course of business), agreement to
purchase or purchase, agreement to supply or advance funds, or
otherwise, except in connection with Permitted Transactions and unless
the Depositor has given the Rating Agencies at least ten (10) days'
prior notice and the Rating Agency Condition shall have been satisfied
with respect thereto.
38
'SS' 2.06
(i) Investments. The Depositor will not make or suffer to
exist any loans or advances to, or extend any credit to, or make any
investments (by way of transfer of property, contributions to capital,
purchase of stock or securities or evidences of indebtedness,
acquisition of the business or assets, or otherwise) in, any Affiliate,
unless the Depositor has given the Rating Agencies at least ten (10)
days' prior notice and the Rating Agency Condition shall have been
satisfied with respect thereto; provided, however, that the Depositor
shall not be prohibited under this Section 2.06(i) from declaring or
paying any dividends in respect of its common stock.
(j) Stock; Merger. The Depositor will not (i) sell any shares
of any class of its capital stock to any Person (other than Bombardier
Corporation) or enter into any transaction of merger or consolidation
unless (A) the surviving Person of such merger or consolidation assumes
all of the Depositor's obligations under this Agreement, (B) the
Depositor shall have given the Rating Agencies and the Trustee at least
ten (10) days' prior notice and the Rating Agency Condition shall have
been satisfied with respect to such transaction and (C) such merger or
consolidation does not conflict with any provisions of the Certificate
of Incorporation of the Depositor, or (ii) terminate, liquidate or
dissolve itself (or suffer any termination, liquidation or
dissolution), or (iii) acquire or be acquired by any Person (other than
as permitted pursuant to clause (i) above), or (iv) otherwise make (or
suffer) any material change in the organization of or method of
conducting its business.
(k) Agreements. The Depositor will not become a party to, or
permit any of its properties to be bound by, any indenture, mortgage,
instrument, contract, agreement, lease or other undertaking, except
this Agreement, the Related Documents and any document relating to a
Permitted Transaction, or amend or modify its Certificate of
Incorporation or cancel, terminate, amend, supplement, modify or waive
any of the provisions of the Receivables Purchase Agreement or any of
the other Related Documents or request, consent or agree to or suffer
to exist or permit any such cancellation, termination, amendment,
supplement, modification or waiver unless, in any such case, the
Depositor has given the Rating Agencies at least ten (10) days' prior
notice and the Rating Agency Condition shall have been satisfied with
respect thereto.
(l) Repurchase Agreements. The Depositor agrees to use all
reasonable efforts to enforce (or cause the enforcement of) any
repurchase or other agreements with manufacturers, importers or
distributors relating to Obligors who are being financed by Domestic
Inventory Receivables held in the Trust.
SECTION 2.07. Removal of Accounts. (a) The Depositor shall have the
right to remove Accounts, including all amounts then held by the Trust or
thereafter received by the Trust in respect of the Accounts being removed, from
the Trust in the manner prescribed in
39
'SS' 2.07
subsection (b) of this Section 2.07.
(b) To remove Accounts, including all amounts then held by the
Trust or thereafter received by the Trust in respect of the Accounts being
removed, the Depositor (or the Servicer on its behalf) shall take the following
actions and make the following determinations:
(i) not less than five (5) Business Days prior to the
Removal Date, furnish to the Trustee, any Enhancement Providers and the
Rating Agencies a written notice (the "Removal Notice") specifying the
date on which removal of one or more Accounts (the "Removed Accounts")
will occur (a "Removal Date");
(ii) from and after such Removal Date, cease to transfer to
the Trust any and all Receivables arising in such Removed Accounts;
(iii) represent and warrant that the removal of any such
Account on any Removal Date shall not, in the reasonable belief of the
Depositor (or the Servicer on behalf of the Depositor), cause an Early
Amortization Event to occur or cause the Pool Balance to be less than
the Required Pool Balance;
(iv) represent and warrant that no selection procedures
reasonably believed by the Depositor (or the Servicer on behalf of the
Depositor) to be adverse to the interests of the Beneficiaries were
utilized in selecting the Accounts to be removed;
(v) represent and warrant that such removal will not result
in a reduction or withdrawal of the rating of any outstanding Series or
Class by the applicable Rating Agency;
(vi) on or before the related Removal Date, deliver to the
Trustee and any Enhancement Providers an Officers' Certificate
confirming the items set forth in clauses (iii) through (v) above, the
Trustee may conclusively rely on such Officers' Certificate and shall
have no duty to make inquiries with regard to the matters set forth
therein and shall incur no liability in so relying; and
(vii) on or before the fifth Business Day after the Removal
Date, furnish to the Trustee a computer file, microfiche list or other
list of the Removed Accounts that were removed on the Removal Date,
specifying for each Removed Account (x) its number, (y) as of the date
of the Removal Notice, the aggregate amount outstanding in such Removed
Account and (z) as of the Removal Date, the aggregate amount of
Principal Receivables therein and represent that such computer file,
microfiche list or other list of the Removed Accounts is true and
complete in all material respects.
40
'SS' 2.07
(c) Subject to subsection (b) of this Section 2.07, on the
Removal Date with respect to any such Removed Account, such Removed Account
shall be deemed removed from the Trust for all purposes. After the Removal Date
and upon the written request of the Servicer, the Trustee shall deliver to the
Depositor a reassignment in substantially the form of Exhibit H-1 hereto (the
"Reassignment").
SECTION 2.08. Removal of Ineligible Accounts. (a) On or prior to the
fifth Business Day following any date on which an Account becomes an Ineligible
Account (such fifth Business Day, the "Removal Commencement Date"), the
Depositor shall commence removal of the Receivables of such Ineligible Account
in the manner prescribed in subsection (b) of this Section 2.08.
(b) With respect to each Account that becomes an Ineligible
Account, the Depositor (or the Servicer on its behalf) shall take the
following actions and make the following determinations:
(i) furnish to the Trustee, the Rating Agencies and any
Enhancement Providers a Removal Notice specifying the Removal
Commencement Date and the Ineligible Accounts to be removed;
(ii) from and after such Removal Commencement Date, cease to
transfer to the Trust any and all Receivables arising in such
Ineligible Accounts and allocate all Collections with respect to such
Receivables as provided in subsection (c) of this Section 2.08;
(iii) within five (5) Business Days after the Removal
Commencement Date, amend Schedule 1 hereto by delivering to the Trustee
a computer file or microfiche or written list containing a true and
complete list of the Ineligible Accounts to be removed, specifying for
each such Account, as of the date immediately preceding the Removal
Commencement Date, its account number, the aggregate amount of
Receivables outstanding in such Account and the aggregate outstanding
principal balance therein (the "Designated Balance");
(iv) from and after the Removal Commencement Date with
respect to any Ineligible Account to be removed, allocate Principal
Collections in respect of such Ineligible Account first to the oldest
outstanding principal balance of such Ineligible Account, until the
Designated Balance in such Ineligible Account is reduced to zero (the
date on which any such Designated Balance is so reduced to zero, the
"Removal Termination Date"); and
(v) on each Business Day from and after the Removal
Commencement Date
41
'SS' 2.08
with respect to any Ineligible Account to be removed, until the related
Removal Termination Date, allocate Non-Principal Collections in respect
of such Ineligible Account (A) to the Trust, based on the ratio of (1)
the amount of Principal Receivables in such Ineligible Account on such
Business Day that were previously sold to the Trust to (2) the total
amount of Principal Receivables in such Ineligible Account on such
Business Day and (B) to the Depositor, the remainder of Non-Principal
Collections in respect of such Ineligible Account on such Business Day.
(c) Subject to subsection (b) of this Section 2.08, on the
Removal Termination Date with respect to any Ineligible Account, such Account
shall be deemed removed from the Trust for all purposes. After the Removal
Termination Date and upon the written request of the Servicer, the Trustee shall
deliver to the Depositor a Reassignment in substantially the form of Exhibit H-2
hereto.
(d) On the Removal Termination Date with respect to any
Ineligible Account, the Depositor shall cease to allocate any collections
therefrom in accordance herewith and such Account shall be deemed a Removed
Account.
SECTION 2.09. Sale of Ineligible Receivables. The Depositor shall sell
to the Trust on each Transfer Date any and all Receivables arising in any
Eligible Accounts that are Ineligible Receivables; provided, that on the Cut-Off
Date or, in the case of Receivables arising in Additional Accounts, on the
related Additional Cut-Off Date, and on the applicable Transfer Date, the
Account in which such Receivables arise is an Eligible Account.
SECTION 2.10. Discount Option. The Depositor may, at any time, upon
thirty (30) days' prior written notice to the Servicer, the Trustee and each
Rating Agency, designate a fixed percentage of the amount of Collections in
respect of Other Account Receivables arising in the Accounts (to the extent that
such Other Account Receivables are included in the Pool) on and after the date
of such designation that otherwise would be treated as Principal Collections to
be treated as Non-Principal Collections. Such designation will become effective
on the date specified therein only if (i) the Depositor shall have delivered to
the Trustee an Officers' Certificate, dated the date of such designation, to the
effect that the Depositor reasonably believes that such designation will not
result in an Early Amortization Event or have a materially adverse effect on the
Certificateholders and (ii) each Rating Agency shall have notified the
Depositor, the Servicer and the Trustee that such action will not result in a
reduction or withdrawal of the then existing rating of any outstanding Series or
Class.
42
'SS' 3.01
ARTICLE III
Administration and Servicing
of Receivables
SECTION 3.01. Acceptance of Appointment and Other Matters Relating to
the Servicer. (a) The Servicer shall (or, to the extent applicable, shall cause
its Affiliates to) service and administer the Receivables, collect payments due
under the Receivables and charge-off as uncollectible Receivables, all in
accordance with the Inventory Security Agreements (as amended from time to time)
relating to the Accounts (if applicable), the Financing Guidelines and otherwise
in accordance with procedures that are customary and usual in the industry for
servicing receivables comparable to the Receivables, except insofar as any
failure to so comply or perform would not materially and adversely affect the
rights of the Trust or any of the Beneficiaries; provided, that unless the
Depositor shall have given the Rating Agencies ten (10) days' prior notice of
its election not to take the following actions with respect to Receivables and
the Rating Agency Condition shall have been satisfied with respect thereto, the
Servicer shall charge-off as uncollectible (x) at least 33% of the principal
amount of each Receivable with respect to which principal payments are
delinquent by thirty (30) days or more, (y) at least 66% of the principal amount
(before giving effect to any reduction therein pursuant to clause (x) hereof) of
each Receivable with respect to which principal payments are delinquent by sixty
(60) days or more, and (z) 100% of the remaining principal amount of each
Receivable with respect to which principal payments are delinquent by ninety
(90) days or more or interest payments (aggregating at least $150 with respect
to Receivables under the same Account) are delinquent by 120 days or more. The
Servicer and its applicable Affiliates shall have full power and authority,
acting alone or through any party properly designated hereunder, to do any and
all things in connection with such servicing and administration which it may
deem necessary or desirable. Without limiting the generality of the foregoing
and subject to Section 10.01 hereof, the Servicer is hereby authorized and
empowered, unless such power and authority is revoked by the Trustee on account
of the occurrence of a Servicer Default pursuant to Section 10.01 hereof:
(i) to instruct the Trustee to make withdrawals and
payments from the Collection Account and any Series Account as set
forth in this Agreement;
(ii) to instruct the Trustee to take any action required or
permitted under any Enhancement;
(iii) to execute and deliver, on behalf of the Trust for
the benefit of the Certificateholders and the other Beneficiaries, any
and all instruments of satisfaction or cancellation, or of partial or
full release or discharge, and all other comparable instruments, with
respect to the Receivables and, after the
43
'SS' 3.01
delinquency of any Receivable and to the extent permitted under and in
compliance with applicable Requirements of Law, to commence enforcement
proceedings with respect to such Receivables;
(iv) to make any filings, reports, notices, applications,
registrations with, and seek any consents or authorizations from, the
Securities and Exchange Commission and any State securities authority
on behalf of the Trust as may be necessary or advisable to comply with
any Federal or State securities laws or reporting requirement; and
(v) to delegate certain of its servicing, collection,
enforcement and administrative duties hereunder with respect to the
Accounts and the Receivables to any Person who agrees to conduct such
duties in accordance with the Financing Guidelines and this Agreement;
provided, however, that the Servicer shall notify the Trustee, the Rating
Agencies, any Agent and any Enhancement Providers in writing of any such
delegation of its duties which is not in the ordinary course of its business,
that no delegation will relieve the Servicer of its liability and responsibility
with respect to such duties and that the Rating Agency Condition shall have been
satisfied with respect to any such delegation. The Trustee shall furnish the
Servicer with any powers of attorney and other documents reasonably necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder;
(b) In the event that the Depositor is unable for any reason
to transfer Receivables with respect to any Initial Account or any Additional
Account to the trust in accordance with the provisions of this Agreement
(including by reason of the application of the provisions of Section 9.02 hereof
or any court of competent jurisdiction ordering that the Depositor not transfer
any additional Principal Receivables to the Trust) then, in any such event, the
Servicer agrees (i) to give prompt written notice thereof to the Trustee, any
Enhancement Providers and each Rating Agency and (ii) that it shall in any such
event allocate after the occurrence of such event, payments on each such Account
with respect to the principal balance of such Account first to the oldest
principal balance of such Account, and to have such payments applied as
Collections in accordance with Section 4.02 hereof. The parties hereto agree
that Non-Principal Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to the Trust shall continue to be
a part of the Trust notwithstanding any cessation of the transfer of additional
Principal Receivables to the Trust and Collections with respect thereto shall
continue to be allocated and paid in accordance with the terms of this
Agreement.
(c) The Servicer and its Affiliates servicing the Receivables
shall not, and any Successor Servicer shall not be obligated to, use separate
servicing procedures, offices, employees or accounts for servicing the
Receivables from the procedures, offices, employees
44
'SS' 3.01
and accounts used by the Servicer and its Affiliates in connection with
servicing other receivables comparable to the Receivables.
(d) The Servicer shall comply with and perform its servicing
obligations with respect to the Accounts and Receivables in accordance with the
Inventory Security Agreements (as amended from time to time) relating to the
Accounts, if applicable, and the Financing Guidelines, except insofar as any
failure to so comply or perform would not materially and adversely affect the
rights of the Trust or any of the Beneficiaries. Subject to compliance with all
Requirements of Law, the Servicer (or BCI) and any Affiliate of BCI may change
the terms and provisions of the Accounts, including, without limitation, the
Inventory Security Agreements and the Financing Guidelines, in any respect
(including the calculation of the amount or the timing of charge-offs and the
rate of the finance charge, if any, assessed thereon), only if as a result of
such change, in the reasonable judgment of the Servicer no Early Amortization
Event will occur.
SECTION 3.02. Servicing Compensation. (a) As full compensation
for its servicing activities hereunder and reimbursement for its expenses as set
forth in subsection (b) below, the Servicer shall be entitled to receive the
Servicing Fee on each Distribution Date on or prior to the Trust Termination
Date payable in arrears. The "Servicing Fee" shall be the aggregate of the
Monthly Servicing Fees specified in the Supplements. The Servicing Fee shall be
payable to the Servicer solely to the extent amounts are available for payment
in accordance with the terms of the Supplements.
(b) The Servicer's expenses include the amounts due to the
Trustee pursuant to Section 11.05 hereof and the reasonable fees and
disbursements of independent accountants and all other expenses incurred by the
Servicer in connection with its activities hereunder, and including all other
fees and expenses of the Trust not expressly stated herein to be for the account
of the Certificateholders but not including any federal, state or local income
and franchise taxes, if any, of the Trust or the Certificateholders. The
Servicer shall be required to pay such expenses for its own account, and shall
not be entitled to any payment therefor other than the Servicing Fee. The
Servicer will be solely responsible for all fees and expenses incurred by or on
behalf of the Servicer in connection herewith and the Servicer will not be
entitled to any fee or other payment from, or claim on, any of the Trust Assets
(other than the Servicing Fee).
SECTION 3.03. Representations, Warranties and Covenants of the
Servicer. (a) BCI, as Servicer, hereby makes on the first Closing Date on each
Series Issuance Date with respect to which it is the Servicer, and any Successor
Servicer by its appointment hereunder shall make, on each Series Issuance Date
(and on the date of any such appointment) the following representations,
warranties and covenants, on which the Trustee has relied in accepting the
Receivables in trust and in authenticating the Certificates:
45
'SS' 3.03
(i) Organization and Good Standing. Such party is a
corporation duly organized, validly existing and in good standing under
the applicable laws of the state of its incorporation and has, in all
material respects, full corporate power, authority and legal rights to
own its properties and conduct its receivable servicing business as
such properties are presently owned and as such business is presently
conducted, and to execute, deliver and perform its obligations under
this Agreement and the applicable Supplement.
(ii) Due Qualification. Such party is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt
from such requirements) and has obtained all necessary licenses and
approvals in each jurisdiction in which the servicing of the
Receivables as required by this Agreement requires such qualification
except where the failure to so qualify or be in good standing or obtain
licenses or approvals would not have a material adverse effect on its
ability to perform its obligations hereunder.
(iii) Due Authorization. The execution, delivery, and
performance of this Agreement and the applicable Supplement has been
duly authorized by such party by all necessary corporate action on the
part thereof.
(iv) Binding Obligation. This Agreement and the applicable
Supplement constitutes a legal, valid and binding obligation of such
party, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in
effect, affecting the enforcement of creditors' rights in general and
except as such enforceability may be limited by general principles of
equity (whether considered in a proceeding at law or in equity) and the
availability of equitable remedies.
(v) No Violation. The execution and delivery of this
Agreement and the applicable Supplement by such party, the performance
of the transactions contemplated by this Agreement and the applicable
Supplement and the fulfillment of the terms hereof and thereof
applicable to such party will not conflict with, violate, result in any
breach of any of the material terms and provisions of, or constitute
(with or without notice or lapse of time or both) a material default
under, any Requirement of Law applicable to such party or any
indenture, contract, agreement, mortgage, deed of trust, or other
instrument to which such party is a party or by which it is bound
except to the extent that such conflict, breach or default will not
have a materially adverse effect on such party's ability to perform its
obligations hereunder and thereunder.
46
'SS' 3.03
(vi) No Proceedings. There are no pending proceedings or,
to the best knowledge of such party, investigations, pending or
threatened against such party before any Governmental Authority (i)
seeking to prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated by this Agreement and the
applicable Supplement, (ii) seeking any determination or ruling
that, in the reasonable judgment of such party, would materially and
adversely affect the performance by such party of its obligations under
this Agreement and the applicable Supplement, or (iii) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement and the applicable
Supplement.
(vii) Compliance with Requirements of Law. Such party shall
duly satisfy all obligations on its part to be fulfilled under or in
connection with the Receivables and the Accounts, will maintain in
effect all qualifications required under Requirements of Law in order
to service properly the Receivables and the Accounts and will comply in
all material respects with all Requirements of Law in connection with
servicing the Receivables and the Accounts, except where the failure to
do any of the foregoing would not have a materially adverse effect on
the interests of the Beneficiaries.
(viii) No Rescission or Cancellation. Such party shall not
reschedule, revise, defer, cancel or settle payments due on any
Receivable except in accordance with sound industry practices for
servicing receivables comparable to the Receivables.
(ix) Protection of Beneficiaries' Rights. Such party shall
take no action which would impair the rights of Beneficiaries in the
Receivables or in the Certificates.
(x) Servicer Concentration Account. The Servicer maintains
deposit accounts (collectively, the "Concentration Account") into which
it shall deposit all amounts paid by the Obligors with respect to the
Receivables. The Servicer agrees (i) that it will not change this
method of collection without the prior written consent of any
Enhancement Providers, if any; (ii) with respect to amounts deposited
into the Concentration Account in respect of a particular day, that it
will not transfer such amounts from the Concentration Account until the
Servicer has posted all Collections in respect of the Receivables for
such day; and (iii) concurrently with the transfer of amounts from the
Concentration Account in respect of a particular day, the Servicer will
make the deposits and transfers required by the terms of this Agreement
for such day, if any.
(xi) Negative Pledge. Except for the conveyances under the
Receivables Purchase Agreement and under this Agreement, the Servicer
will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist
47
'SS' 3.03
any Lien on, any Receivable sold and assigned to the Trust, whether now
existing or hereafter created, or any interest therein, and the
Servicer shall defend the rights, title and interest of the Trust in,
to and under any Receivable sold and assigned to the Trust, whether now
existing or hereafter created, against all claims of third parties
claiming through or under the Depositor or the Servicer.
(xii) Repurchase Agreements. The Servicer agrees to use
reasonable efforts to collect (on behalf of the Depositor) under any
repurchase or other agreements with manufacturers, importers or
distributors relating to Obligors who are being financed by Domestic
Inventory Receivables held in the Trust.
(b) Notice of Breach. The representations and warranties set
forth in this Section 3.03 shall survive the transfer and assignment of the
Receivables to the Trust and the issuance of the Certificates. Upon discovery by
the Depositor, the Servicer or the Trustee of a breach of any of the
representations and warranties set forth in this Section 3.03, the party
discovering such breach shall give prompt written notice to the other parties
and to any Enhancement Providers.
(c) Purchase. In the event the Depositor or the Servicer
receives written notice from the Trustee or any Enhancement Provider that any
covenant under clause (vii), (viii) or (ix) of subsection (a) above has not been
complied with in all material respects and such noncompliance has not been cured
within thirty (30) days thereafter (or such longer period as the Trustee may
permit) and has a materially adverse effect on the Investors' Interest or the
Variable Funding Interest in any Receivable or Account, then, unless a
Liquidation Event has occurred, the Servicer shall purchase such Receivable or,
if such non-compliance is with respect to any Account, all Receivables in such
Account, on the Determination Date immediately succeeding the expiration of such
30-day period (or such longer period as may be permitted by the Trustee) on the
terms and conditions set forth in the next succeeding paragraph. The Servicer
shall effect such purchase by depositing in the Collection Account in
immediately available funds an amount equal to the Purchase Price of such
Receivable. Any deposit of such Purchase Price into the Collection Account shall
be considered a Transfer Deposit Amount and shall be applied in accordance with
the terms of this Agreement.
(d) Payment of Purchase Price; Etc. Upon each payment by the
Servicer of the Purchase Price for the Receivables to be purchased by the
Servicer from the Trust pursuant to subsection (c) above, the Trust shall
automatically and without further action be deemed to sell, transfer, assign,
set over and otherwise convey to the Servicer, without recourse, representation
or warranty, all right, title and interest of the Trust in and to such
Receivables, all monies due or to become due with respect thereto and all
proceeds thereof and any related Collateral Security. The Trustee shall execute
such documents and instruments of transfer or assignment and take such other
actions as shall be reasonably requested by the Servicer to
48
'SS' 3.03
effect the conveyance of any such Receivables pursuant to this Section 3.03. The
obligation of the Servicer to purchase such Receivables, and to make the
deposits required to be made to the Collection Account as provided in subsection
(c) above, shall constitute the sole remedy respecting the event giving rise to
such obligation available to the Certificateholders or the Holder of the
Variable Funding Certificate (or the Trustee on behalf of the Certificateholders
and the Holder of the Variable Funding Certificate).
SECTION 3.04. Reports and Records for the Trustee. On each Distribution
Date, with respect to each outstanding Series, the Servicer shall deliver to any
Enhancement Providers, the Rating Agencies, the Trustee, the Holder of the
Variable Funding Certificate and the Holder of the BCRC Certificate a
Distribution Date Statement for the related Distribution Date substantially in
the form set forth in the related Supplement.
SECTION 3.05. Annual Servicer's Certificate. The Servicer will deliver
to the Rating Agencies, the Trustee, the Holder of the Variable Funding
Certificate, the Holder of the BCRC Certificate and any Enhancement Providers on
or before April 30 of each calendar year, beginning with April 30, 1995, an
Officers' Certificate substantially in the form of Exhibit C hereto stating that
(a) a review of the activities of the Servicer during the preceding calendar
year and of its performance under this Agreement was made under the supervision
of the officer signing such certificate and (b) to the best of such officer's
knowledge, based on such review, the Servicer has performed in all material
respects its obligations under this Agreement throughout such year, or, if there
has been a material default in the performance of any such obligation,
specifying each such default known to such officer and the nature and status
thereof. A copy of such certificate may be obtained by any Certificateholder by
a request in writing to the Trustee addressed to the Corporate Trust Office.
SECTION 3.06. Annual Independent Public Accountants' Servicing Report.
On or before April 30 of each calendar year (beginning April 30, 1995), the
Servicer shall cause a firm of nationally recognized independent public
accountants (who may also render other services to the Servicer or the
Depositor) to furnish a report (addressed to the Board of Directors of the
Servicer and to the Trustee), substantially in the form of Exhibit J hereto, to
the effect that they have examined certain documents and records relating to the
servicing of Accounts under this Agreement and each Supplement and that, on the
basis of such examination, nothing has come to the attention of such accountants
that caused them to believe that the servicing has not been conducted in
compliance with the terms and conditions set forth in this Agreement and each
Supplement, except for such exceptions as they believe to be immaterial and such
other exceptions as shall be set forth in such report. A copy of such report may
be obtained by any Certificateholder by a request in writing to the Trustee
addressed to the Corporate Trust Office.
SECTION 3.07. Tax Treatment. The Depositor has entered into this
49
'SS' 3.07
Agreement and the Investor Certificates and the Variable Funding Certificate
have been (or will be) issued with the intention that the Investor Certificates
will qualify under applicable tax law as indebtedness of BCRC secured by the
Receivables. The Depositor, each Beneficiary and each Certificateholder and
Certificate Owner by the acceptance of its Certificate or Book-Entry
Certificate, as applicable, agrees to treat the Investor Certificates as
indebtedness of BCRC secured by the Receivables for United States Federal income
taxes, state and local income and franchise taxes and any other taxes imposed on
or measured by income.
SECTION 3.08. Notices to BCI. In the event BCI is no longer acting as
Servicer, any Successor Servicer appointed pursuant to Section 10.02 hereof
shall deliver or make available to BCI, as the case may be, each certificate and
report required to be prepared, forwarded or delivered thereafter pursuant to
Section 3.04, Section 3.05 or Section 3.06 hereof.
SECTION 3.09. Adjustments. (a) If the Servicer adjusts downward the
amount of any Principal Receivable because of a rebate, refund, credit
adjustment or billing error to an Obligor, or because such Receivable was
created in respect of any Eligible Products which were refused or returned by an
Obligor, then, in any such case, the Pool Balance will be automatically reduced
by the amount of the adjustment. Furthermore, if following such a reduction the
Pool Balance would be less than the Required Pool Balance on the immediately
preceding Determination Date (after giving effect to the allocations,
distributions, withdrawals and deposits to be made on the Distribution Date
immediately following such Determination Date), then, unless a Liquidation Event
has occurred, the Depositor shall be required to pay in cash an amount equal to
such deficiency (up to the amount of such adjustment) into the Collection
Account in immediately available funds on the Business Day on which such
adjustment or reduction occurs (each such payment an "Adjustment Payment").
(b) If (i) the Servicer makes a deposit into the Collection
Account in respect of a Collection of a Receivable and such Collection was
received by the Servicer in the form of a check which is not honored for any
reason or (ii) the Servicer makes a mistake with respect to the amount of any
Collection and deposits an amount that is less than or more than the actual
amount of such Collection, the Servicer shall appropriately adjust the amount
subsequently deposited into the Collection Account to reflect such dishonored
check or mistake. Any Receivable in respect of which a dishonored check is
received shall be deemed not to have been paid.
50
'SS' 4.01
ARTICLE IV
Rights of Certificateholders and
Allocation and Application of Collections
SECTION 4.01. Rights of Certificateholders. The Investor
Certificates shall represent fractional undivided interests in the Trust, which,
with respect to each Series, shall consist of the right to receive, to the
extent necessary to make the required payments with respect to the Investor
Certificates of such Series at the times and in the amounts specified in the
related Supplement, the portion of Collections allocable to Certificateholders
of such Series pursuant to this Agreement and such Supplement, funds on deposit
in the Collection Account allocable to Certificateholders of such Series
pursuant to this Agreement and such Supplement, funds on deposit in any related
Series Account and funds available pursuant to any related Enhancement
(collectively, with respect to all Series, the "Investors' Interest"), it being
understood that the Investor Certificates of any Series or Class shall not
represent any interest in any Series Account or Enhancement for the benefit of
any other Series or Class. The Variable Funding Certificate shall represent a
fractional undivided interest in the Trust, which shall consist of the right to
receive, to the extent necessary to make the required payments with respect to
the Variable Funding Certificate, at the times and in the amounts specified in
the related Supplement, the portion of Collections allocable to the Holder of
the Variable Funding Certificate pursuant to this Agreement and such Supplement
and funds on deposit in the Collection Account allocable to the Holder of the
Variable Funding Certificate pursuant to this Agreement and such Supplement
(collectively, the "Variable Funding Interest"), it being understood that the
Variable Funding Certificate shall not represent any interest in any Series
Account or Enhancement except as specifically provided in this Agreement or such
Supplement. The BCRC Certificate and any Supplemental Certificate shall,
collectively, represent the ownership interest in the remainder of the Trust
Assets not allocated pursuant to this Agreement or any Supplement to the
Investors' Interest or the Variable Funding Interest, including the right to
receive the Collections with respect to the Receivables and other amounts at the
times and in the amounts specified in this Agreement or in any Supplement to be
paid to the Depositor on behalf of all Holders of the BCRC Certificate and any
Supplemental Certificates (the "Retained Interest"); provided, however, that
neither the BCRC Certificate nor any Supplemental Certificate shall represent
any interest in the Collection Account, any Series Account or any Enhancement,
except as specifically provided in this Agreement or any Supplement.
SECTION 4.02. Establishment of the Collection Account. The
Servicer, for the benefit of the Certificateholders and the other Beneficiaries,
shall cause to be established and maintained in the name of the Trust an
Eligible Deposit Account bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Certificateholders and the
other Beneficiaries (the "Collection Account"). The Trustee shall
51
'SS' 4.02
possess all right, title and interest in all funds from time to time on deposit
in, and all Eligible Investments credited to, the Collection Account and in all
proceeds thereof. The Collection Account shall be under the sole dominion and
control of the Trustee for the benefit of the Certificateholders and the other
Beneficiaries. If, at any time, the Collection Account ceases to be an Eligible
Deposit Account, the Servicer shall establish a substitute Eligible Deposit
Account as the Collection Account, instruct the Trustee to transfer any cash
and/or any Eligible Investments to such new Collection Account and, from the
date any such substitute account is established, such account shall be the
Collection Account. Other than as Holder of the Variable Funding Certificate,
the BCRC Certificate or any Supplemental Certificate, neither the Depositor nor
the Servicer, nor any person or entity claiming by, through or under the
Depositor or Servicer, shall have any right, title or interest in, or any right
to withdraw any amount from, the Collection Account. Pursuant to the authority
granted to the Servicer in Section 3.01 hereof, the Servicer shall have the
power, revocable by the Trustee, to instruct the Trustee to make withdrawals and
payments from the Collection Account for the purposes of carrying out the
Servicer's or Trustee's duties specified in this Agreement.
All Eligible Investments shall be held by the Trustee for the
benefit of the Certificateholders and the other Beneficiaries. Funds on deposit
in the Collection Account shall at the written direction of the Servicer be
invested by the Trustee solely in Eligible Investments that will mature so that
such funds will be available at the close of business on or before the Business
Day next preceding the following Distribution Date (or on or before 10:00 a.m.
(New York City time) on such following Distribution Date in the case of Eligible
Investments in respect of which the Trustee is the obligor). As of each
Determination Date, all interest and other investment earnings (net of losses
and investment expenses) on funds on deposit in the Collection Account received
on such Determination Date shall be credited to the Collection Account. Schedule
2, which is hereby incorporated into and made part of this Agreement, identifies
the Collection Account by setting forth the account number of such account, the
account designation of such account and the name of the institution with which
such account has been established. If a substitute Collection Account is
established pursuant to this Section 4.02, the Servicer shall provide to the
Trustee an amended Schedule 2, setting forth the relevant information for such
substitute Collection Account.
SECTION 4.03. Allocations and Applications of Collections and
Other Funds. (a) Except as otherwise provided in subsections (b) and (c) of this
Section 4.03, the Servicer shall deposit Collections into the Collection Account
as promptly as possible after receipt of such Collections, but in no event later
than the second Business Day after such receipt. Receipt by BCI's Affiliates of
Collections with respect to Other Account Receivables will not be deemed to be
received by BCI as Servicer until actually received by BCI from such Affiliate.
(b) Notwithstanding anything in this Agreement to the contrary,
for so long
52
'SS' 4.03
as (i) BCI remains the Servicer hereunder, (ii) no Servicer Default has occurred
and is continuing and (iii) (x) BCI is a subsidiary of Bombardier Corporation
(which shall own at least 80% of the voting common stock of BCI) and BCI has and
maintains a short-term rating of at least A-1 by Standard & Poor's and P-1 by
Moody's, (y) BCI arranges for and maintains a letter of credit or other form of
Enhancement in respect of the Servicer's obligations to make deposits of
collections on the Receivables in the Collection Account that is acceptable in
form and substance to each Rating Agency or (z) BCI otherwise obtains the Rating
Agency confirmations described below, then, subject to any limitations in the
confirmations described below, the Servicer need not make the deposits of
Collections into the Collection Account as provided in subsection (a) of this
Section 4.03, but may use for its own benefit all such Collections until the
Business Day immediately preceding the related Distribution Date, at which time
BCI will make a single deposit into the Collection Account in same-day or
next-day funds not later than 12:00 noon (New York City time) in an amount equal
to the net amount of such deposits and withdrawals which would have been made
had the conditions of this sentence not applied; provided, however, that prior
to ceasing daily deposits as described above BCI shall have delivered to the
Trustee written confirmation from each of the Rating Agencies that the failure
by BCI to make daily deposits will not result in a reduction or withdrawal of
the rating of any outstanding Series or Class.
(c) Subject to Section 4.04 hereof, but notwithstanding anything
else in this Agreement to the contrary, with respect to any Collection Period,
whether the Servicer is required to make deposits of Collections pursuant to
subsection (a) or (b) above, (i) the Servicer will only be required to deposit
Collections into the Collection Account up to the aggregate amount of
Collections required to be deposited into all Series Accounts or, without
duplication, distributed on the related Distribution Date to all
Certificateholders or to each Enhancement Provider pursuant to the terms of any
Supplement or Enhancement Agreement and (ii) if at any time prior to such
Distribution Date the amount of Collections deposited in the Collection Account
exceeds the amount required to be deposited pursuant to clause (i) above, the
Servicer will be permitted to withdraw the excess from the Collection Account.
(d) Collections of Non-Principal Receivables and Principal
Receivables, Defaulted Receivables and Miscellaneous Payments will be allocated
to each Series of Certificateholders from and after the Series Cut-Off Date and
to the Holder of the Variable Funding Certificate as specified in the related
Supplement, and amounts so allocated to any Series will not, except as specified
in the related Supplement, be available to the Certificateholders of any other
Series or to the Variable Funding Certificateholder. Similarly, amounts so
allocated to the Variable Funding Certificate will not, except as specified in
the related Supplement, be available to the Certificateholders of any Series.
Allocations thereof among the Investors' Interest, the Variable Funding Interest
and the Retained Interest, between the Investors' Interest and the Variable
Funding Interest, among the Series of Certificateholders and among the Classes
in any Series shall be set forth in this Agreement and
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'SS' 4.03
in the related Supplement or Supplements.
SECTION 4.04. Unallocated Principal Collections. On each
Distribution Date, (a) the Servicer shall allocate Excess Principal Collections
(as described below) to each Series as set forth in the related Supplement and
(b) the Servicer shall instruct the Trustee to withdraw from the Collection
Account and pay, or make available, to the Depositor for the benefit of the
Holder(s) of the BCRC Certificate and any Supplemental Certificates (i) an
amount equal to the excess, if any, of (x) the aggregate amount for all
outstanding Series of Principal Collections which the related Supplements
specify are to be treated as "Excess Principal Collections" with respect to such
Distribution Date over (y) the sum of (1) the aggregate amount for all
outstanding Series which the related Supplements specify are "Principal
Shortfalls" with respect to such Distribution Date and, without duplication and
(2) the amount of Principal Collections distributable to the Holder of the
Variable Funding Certificate pursuant to the related Supplement and (ii) the
aggregate amount for all outstanding Series of that portion of Principal
Collections which the related Supplements specify are to be allocated and paid
to the Depositor for the benefit of the Holder(s) of the BCRC Certificate and
any Supplemental Certificates with respect to such Distribution Date; provided,
however, that, in the case of clauses (i) and (ii), such amounts shall be paid
to the Depositor only if the Pool Balance for such Distribution Date (determined
after giving effect to any Principal Receivables transferred to the Trust on
such date) exceeds the Required Pool Balance for the immediately preceding
Determination Date (after giving effect to the allocations, distributions,
withdrawals and deposits to be made on the Distribution Date immediately
following such Determination Date). The amount held in the Collection Account
and not paid to the Depositor as a result of the proviso in the preceding
sentence ("Unallocated Principal Collections") shall be paid to the Depositor at
the time the Pool Balance exceeds the Required Pool Balance for the immediately
preceding Determination Date (after giving effect to the allocations,
distributions, withdrawals and deposits to be made on the Distribution Date
immediately following such Determination Date); provided, however, that any
Unallocated Principal Collections on deposit in the Collection Account at any
time during which any Series is in its amortization period, accumulation period
or Early Amortization Period shall be deemed to be "Miscellaneous Payments" and
shall be allocated and distributed in accordance with Section 4.03 hereof and
the terms of each Supplement.
ARTICLE V
Distributions and Reports to
Certificateholders
SECTION 5.01. Distributions and Reports to Certificateholders.
Distributions shall be made to, and reports shall be provided to,
Certificateholders as set forth in the
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'SS' 5.01
applicable Supplement.
ARTICLE VI
The Certificates
SECTION 6.01. The Certificates. The Investor Certificates of any
Series or Class may be issued in bearer form ("Bearer Certificates") with
attached interest coupons and one or more special coupons (collectively, the
"Coupons") pursuant to Section 6.11 hereof, or in fully registered form
("Registered Certificates") and shall be substantially in the form of the
exhibits with respect thereto attached to the applicable Supplement. The
Variable Funding Certificate shall be issued in registered form and shall be
substantially in the form of the related exhibit attached to the related
Supplement, and shall upon issue, be executed, authenticated and delivered as
provided in Section 6.02 hereof. The BCRC Certificate will be issued in
registered form, substantially in the form of Exhibit A hereto, and shall upon
issue, be executed, authenticated and delivered by the Trustee as provided in
Section 6.02 hereof. Except as otherwise provided in any Supplement, Bearer
Certificates shall be issued in minimum denominations of $5,000, $50,000 and
$100,000 and Registered Certificates shall be issued in minimum denominations of
$1,000 and in integral multiples of $1,000 in excess thereof. If specified in
any Supplement, the Investor Certificates of any Series or Class shall be issued
upon initial issuance as a single certificate evidencing the aggregate original
principal amount of such Series or Class as described in Section 6.11 hereof.
The Variable Funding Certificate shall be a single certificate and shall
represent the entire Variable Funding Interest. The BCRC Certificate shall be a
single certificate and, together with any Supplemental Certificate, shall
represent the entire Retained Interest. Each Certificate shall be executed by
manual or facsimile signature by a Responsible Officer of the Trustee on behalf
of the Trust. Certificates bearing the manual or facsimile signature of the
individual who was, at the time when such signature was affixed, authorized to
sign on behalf of the Trustee shall not be rendered invalid, notwithstanding
that such individual ceased to be so authorized prior to the authentication and
delivery of such Certificates or does not hold such office at the date of such
Certificates. No Certificates shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein
executed by or on behalf of the Trustee by the manual signature of a duly
authorized signatory, and such certificate upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. Bearer Certificates shall be dated the
Series Issuance Date. All Registered Certificates, all Variable Funding
Certificates, the BCRC Certificate and all Supplemental Certificates shall be
dated the date of their authentication.
SECTION 6.02. Authentication of Certificates. The Trustee shall
authenticate
55
'SS' 6.02
and deliver (x) the Investor Certificates of each Series and Class that are
issued upon original issuance and (y) the Variable Funding Certificate to or
upon the written order of the Depositor. The Trustee shall authenticate and
deliver on behalf of the Trust the Variable Funding Certificate and the BCRC
Certificate to the Depositor simultaneously with its delivery of the Investor
Certificates of the first Series to be issued hereunder. If specified in the
related Supplement for any Series or Class, the Trustee shall authenticate and
deliver outside the United States the Global Certificate that is issued upon
original issuance thereof.
SECTION 6.03. New Issuances. (a) The Depositor may from time to
time direct the Trustee, on behalf of the Trust, to issue (i) one or more new
Series of Investor Certificates and/or (ii) to issue the Variable Funding
Certificate, in each case pursuant to a Supplement. The Investor Certificates of
all outstanding Series and the Variable Funding Certificate shall be equally and
ratably entitled as provided herein to the benefits of this Agreement without
preference, priority or distinction, all in accordance with the terms and
provisions of this Agreement and the applicable Supplement except, with respect
to any Series or Class or the Variable Funding Certificate, as provided in the
related Supplement.
(b) On or before the Series Issuance Date relating to any new
Series, the parties hereto will execute and deliver a Supplement which will
specify the Principal Terms of such new Series. The terms of such Supplement may
modify or amend the terms of this Agreement solely as applied to such new
Series. The obligation of the Trustee to issue the Investor Certificates of such
new Series and to execute and deliver the related Supplement is subject to the
satisfaction of the following conditions:
(i) on or before the fifth Business Day immediately preceding the
related Series Issuance Date, the Depositor shall have given the Trustee,
the Servicer, each Rating Agency, any Agent and any Enhancement Provider
written notice of such issuance (which notice shall specify the
designation of such Series, its applicable initial principal amount,
currency and interest rates and the issuer of any Enhancement) and the
related Series Issuance Date;
(ii) the Depositor shall have delivered to the Trustee the related
Supplement, in form satisfactory to the Trustee, executed by each party
hereto other than the Trustee and specifying the Principal Terms of such
Series;
(iii) the Depositor shall have delivered to the Trustee any
related Enhancement Agreement executed by each of the parties thereto,
other than the Trustee;
(iv) the Rating Agency Condition shall have been satisfied with
respect to such issuance;
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'SS' 6.03
(v) the Depositor shall have delivered to the Trustee and any
Enhancement Provider a certificate of a Vice President or more senior
officer, dated the related Series Issuance Date, to the effect that the
Depositor reasonably believes that such issuance will not result in the
occurrence of an Early Amortization Event;
(vi) the Depositor shall have delivered to the Trustee and any
Enhancement Provider a Tax Opinion, dated the related Series Issuance
Date, with respect to such issuance; and
(vii) BCRC shall have an interest in the Pool represented by the
BCRC Certificate and the Variable Funding Certificate equal in the
aggregate to at least 2% of the aggregate amount of Receivables included
in the Pool, in each case as of the Series Issuance Date, and after
giving effect to such issuance; for purposes of this clause (vii), BCRC
shall be deemed to have an interest in the Pool represented by the
Variable Funding Certificate even though BCI, as pledgee, is the
registered holder thereof so long as BCI has not exercised its remedies
in respect thereof.
Upon satisfaction of the above conditions, the Trustee shall execute the
Supplement and the Depositor shall deliver to the Trustee the Investor
Certificates of such Series or Variable Funding Certificate, as applicable, for
execution by the Trustee on behalf of the Trust and authentication by the
Trustee.
(c) On or before the date of issuance for the Variable Funding
Certificate, the parties hereto will execute and deliver a Supplement specifying
the terms of the Variable Funding Certificate (which Supplement shall be subject
to Section 13.01 hereof to the extent it amends any of the terms of this
Agreement), upon satisfaction of the following conditions:
(i) BCRC shall have an interest in the Pool represented by the
BCRC Certificate and the Variable Funding Certificate equal in the
aggregate to at least 2% of the aggregate amount of Receivables included
in the Pool, in each case as of the date of, and after giving effect to,
such issuance (or transfer or exchange as provided below); for purposes
of this clause (i), BCRC shall be deemed to have an interest in the Pool
represented by the Variable Funding Certificate even though BCI, as
pledgee, is the registered holder thereof so long as BCI has not
exercised its remedies in respect thereof;
(ii) the Depositor shall have given the Rating Agencies ten (10)
days' prior notice and the Rating Agency Condition shall have been
satisfied with respect to such exchange (or transfer or exchange as
provided below); and
57
'SS' 6.03
(iii) the Depositor shall have delivered to the Trustee, and any
Enhancement Provider a Tax Opinion, dated the date of such exchange (or
transfer or exchange as provided below), with respect thereto.
Upon satisfaction of the above conditions, the Trustee shall execute the related
Supplement and the Depositor shall deliver to the Trustee the Variable Funding
Certificate for execution by the Trustee on behalf of the Trust and
authentication by the Trustee. It is hereby agreed by the parties hereto that
the foregoing conditions are deemed to have been satisfied with respect to the
initial issuance of the Variable Funding Certificate on the first Closing Date.
Notwithstanding anything herein to the contrary, (i) except for a
pledge of the Variable Funding Certificate by BCRC to BCI (which pledge, or the
exercise by BCI, as pledgee, of its remedies pursuant thereto, shall not be
required to meet the conditions set forth in clauses (ii) and (iii) set forth
above), the Variable Funding Certificate may not be transferred, assigned,
exchanged, pledged or otherwise conveyed unless the conditions set forth in
clauses (ii) and (iii) above have been satisfied and (ii) the Trustee shall not
register the transfer of the Variable Funding Certificate except upon receipt of
written instructions of the Depositor to effect such transfer upon receipt by
the Depositor of reasonable assurances that such transfer complies with the
provisions of the Securities Act of 1933, as amended.
(d) The Depositor may surrender the BCRC Certificate to the
Trustee in exchange for a newly issued BCRC Certificate and a second certificate
(a "Supplemental Certificate"), the terms of which shall be defined in a
supplement to this Agreement (which Supplement shall be subject to Section 13.01
hereof to the extent that it amends any of the terms of this Agreement), to be
delivered to or upon the order of the Depositor (or the Holder of a Supplemental
Certificate, in the case of the transfer or exchange thereof, as provided
below), upon satisfaction of the conditions set forth in clauses (i), (ii) and
(iii) of subsection (c) of this Section 6.03.
The BCRC Certificate will at all times be beneficially owned by the Depositor.
Any Supplemental Certificate may be transferred or exchanged only upon
satisfaction of the conditions set forth in clauses (ii) and (iii) of subsection
(c) of this Section 6.03.
SECTION 6.04. Registration of Transfer and Exchange of
Certificates. (a) The Trustee shall cause to be kept at the office or agency to
be maintained in accordance with the provisions of Section 11.16 hereof a
register (the "Certificate Register") in which, subject to such reasonable
regulations as it may prescribe, a transfer agent and registrar (which shall
initially be the Trustee) (the "Transfer Agent and Registrar") shall provide for
the registration of the Registered Certificates and the Variable Funding
Certificate and of transfers, pledges and exchanges of such Certificates as
herein provided. The Transfer Agent and Registrar shall initially be the Trustee
and any co-transfer agent and co-registrar chosen by the Depositor and
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'SS' 6.04
acceptable to the Trustee. So long as (x) the Trustee does not have an office in
New York City and (y) any Investor Certificates or the Variable Funding
Certificate is outstanding, the Depositor shall maintain a co-transfer agent and
co-registrar in New York City. Any reference in this Agreement to the Transfer
Agent and Registrar shall include any co-transfer agent and co-registrar unless
the context requires otherwise.
Subject to subsection (c) below, upon surrender for registration
of transfer of any Registered Certificate at any office or agency of the
Transfer Agent and Registrar maintained for such purpose, one or more new
Registered Certificates (of the same Series and Class) in authorized
denominations of like aggregate fractional undivided interests in the Investors'
Interest shall be executed, authenticated and delivered, in the name of the
designated transferee or transferees.
At the option of a Registered Certificateholder, Registered
Certificates (of the same Series and Class) may be exchanged for other
Registered Certificates of authorized denominations of like aggregate fractional
undivided interests in the Investors' Interest, upon surrender of the Registered
Certificates to be exchanged at any such office or agency. Registered
Certificates, including Registered Certificates received in exchange for Bearer
Certificates, may not be exchanged for Bearer Certificates. At the option of the
Holder of a Bearer Certificate, subject to applicable laws and regulations,
Bearer Certificates may be exchanged for other Bearer Certificates or Registered
Certificates (of the same Series and Class) of authorized denominations of like
aggregate fractional undivided interests in the Investors' Interest, upon
surrender of the Bearer Certificates to be exchanged at an office or agency of
the Transfer Agent and Registrar located outside the United States. Each Bearer
Certificate surrendered pursuant to this Section 6.04 shall have attached
thereto all unmatured Coupons; provided, that any Bearer Certificate, so
surrendered after the close of business on the Record Date preceding the
relevant payment date or distribution date after the expected final payment date
need not have attached the Coupon relating to such payment date or distribution
date (in each case, as specified in the applicable Supplement).
The preceding provisions of this Section 6.04 notwithstanding, the
Trustee or the Transfer Agent and Registrar, as the case may be, shall not be
required to register the transfer of or exchange any Certificate for a period of
fifteen (15) days preceding the due date for any payment with respect to the
Certificate.
Whenever any Investor Certificates are so surrendered for
exchange, the Trustee shall execute, on behalf of the Trust, and authenticate
and the Transfer Agent and Registrar shall deliver (in the case of Bearer
Certificates, outside the United States) the Investor Certificates which the
Certificateholder making the exchange is entitled to receive. Every Investor
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in a form satisfactory
to the Trustee
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'SS' 6.04
or the Transfer Agent and Registrar duly executed by the Certificateholder or
the attorney-in-fact thereof duly authorized in writing.
Unless otherwise provided in the related Supplement, no service
charge shall be made for any registration of transfer or exchange of Investor
Certificates, but the Transfer Agent and Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any such transfer or exchange.
All Investor Certificates (together with any Coupons) surrendered
for registration of transfer and exchange or for payment shall be canceled and
disposed of in a manner satisfactory to the Trustee. The Trustee shall cancel
and destroy any Global Certificate upon its exchange in full for Definitive
Euro-Certificates and shall deliver a certificate of destruction to the
Depositor. Such certificate shall also state that a certificate or certificates
of a Foreign Clearing Agency to the effect referred to in Section 6.11 hereof
was received with respect to each portion of the Global Certificate exchanged
for Definitive Euro-Certificates.
The Depositor shall deliver to the Trustee Bearer Certificates and
Registered Certificates in such amounts and at such times as are necessary to
enable the Trustee to fulfill its responsibilities under this Agreement and the
Certificates.
(b) The Transfer Agent and Registrar will maintain at its expense
in each of the Borough of Manhattan, The City of New York, an office or agency
where Investor Certificates may be surrendered for registration of transfer or
exchange (except that Bearer Certificates may not be surrendered for exchange at
any such office or agency in the United States).
(c) Notwithstanding anything herein to the contrary, the Trustee
shall not exchange the Variable Funding Certificate for other Variable Funding
Certificates of like aggregate undivided interests in the Trust or register any
transfer of the Variable Funding Certificate except upon receipt of written
instructions from the Depositor to effect such exchange or registration of
transfer upon receipt by the Depositor of reasonable assurances that such
proposed exchange or transfer complies with the provisions of the Securities Act
of 1933, as amended.
(d)(i) Registration of transfer of Investor Certificates
containing a legend to the effect set forth on Exhibit D-1 hereto shall be
effected only if such transfer is made pursuant to an effective registration
statement under the Act, or is exempt from the registration requirements under
the Act. In the event that registration of a transfer is to be made in reliance
upon an exemption from the registration requirements under the Act, the
transferor or the transferee shall deliver, at its expense, to the Depositor,
the Servicer and the Trustee, an
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'SS' 6.04
investment letter from the transferee, substantially in the form attached to the
applicable Supplement, and no registration of transfer shall be made until such
letter is so delivered.
Investor Certificates issued upon registration or transfer of, or
Investor Certificates issued in exchange for, Investor Certificates bearing the
legend referred to above shall also bear such legend unless the Depositor, the
Servicer, the Trustee and the Transfer Agent and Registrar receive an opinion of
counsel, satisfactory to each of them, to the effect that such legend may be
removed.
Whenever an Investor Certificate containing the legend referred to
above is presented to the Transfer Agent and Registrar for registration of
transfer, the Transfer Agent and Registrar shall promptly seek written
instructions from the Servicer regarding such transfer and shall be entitled to
receive and conclusively rely upon instructions signed by a Servicing Officer
prior to registering any such transfer. The Depositor hereby agrees to indemnify
the Transfer Agent and Registrar and the Trustee and to hold each of them
harmless against any loss, liability or expense incurred without negligence or
bad faith on their part arising out of or in connection with actions taken or
omitted by them in relation to any such instructions furnished pursuant to this
clause (i).
(ii) Registration of transfer of Investor Certificates containing
a legend to the effect set forth on Exhibit D-2 hereto shall be effected only if
such transfer is made to a Person which is not an employee benefit plan, trust
or account, including an individual retirement account, that is subject to ERISA
or that is described in Section 4975(e)(1) of the Code or an entity whose
underlying assets include plan assets by reason of a plan's investment in such
entity (a "Benefit Plan"). By accepting and holding any such Investor
Certificate, a Certificateholder shall be deemed to have represented and
warranted that it is not a Benefit Plan. By acquiring any interest in a
Book-Entry Certificate, a Certificate Owner shall be deemed to have represented
and warranted that it is not a Benefit Plan.
SECTION 6.05. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate (together, in the case of Bearer Certificates,
with all unmatured Coupons (if any) appertaining thereto) is surrendered to the
Transfer Agent and Registrar, or the Transfer Agent and Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Transfer Agent and Registrar and
the Trustee and BCRC such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Trustee that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, on behalf of the Trust, and authenticate, and the Transfer Agent and
Registrar shall deliver (in the case of Bearer Certificates, outside the United
States), in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and aggregate fractional
undivided interest. In connection with the issuance of any new Certificate under
this Section
61
'SS' 6.05
6.05, the Trustee or the Transfer Agent and Registrar may require the payment by
the Certificateholder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee and Transfer Agent and Registrar) connected
therewith. Any duplicate Certificate issued pursuant to this Section 6.05 shall
constitute complete and indefeasible evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 6.06. Persons Deemed Owners. The Trustee, the Transfer
Agent and Registrar and any agent of any of them may (a) prior to due
presentation of a Certificate for registration of transfer, treat the Person or
Persons in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to the terms of
the applicable Supplement and for all other purposes whatsoever and (b) treat
the bearer of a Bearer Certificate or Coupon as the owner of such Bearer
Certificate or Coupon for the purpose of receiving distributions pursuant to the
terms of the applicable Supplement and for all other purposes whatsoever; and,
in any such case, neither the Trustee, the Transfer Agent and Registrar nor any
agent of any of them shall be affected by any notice to the contrary.
Notwithstanding the foregoing, in determining whether the Holders of the
requisite Investor Certificates have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Investor Certificates owned by
the Depositor, the Servicer, any other Holder of the BCRC Certificate or a
Supplemental Certificate or any Affiliate thereof, shall be disregarded and
deemed not to be outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Investor Certificates which a
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Investor Certificates so owned which have been pledged in good faith shall not
be disregarded and may be regarded as outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to act with respect to
such Investor Certificates and that the pledgee is not the Depositor, the
Servicer, any other Holder of the BCRC Certificate or a Supplemental Certificate
or any Affiliate thereof.
SECTION 6.07. Access to List of Registered Certificateholders'
Names and Addresses. The Trustee will furnish or cause to be furnished by the
Transfer Agent and Registrar to the Servicer, within five (5) Business Days
after receipt by the Trustee of a request therefor, a list in such form as the
Servicer may reasonably require, of the names and addresses of the Registered
Certificateholders. If three or more Holders of Investor Certificates (the
"Applicants") apply to the Trustee, and such application states that the
Applicants desire to communicate with other Certificateholders with respect to
their rights under this Agreement or any Supplement or under the Investor
Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee, after having been indemnified
to its reasonable satisfaction by such Applicants for its costs and
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'SS' 6.07
expenses, shall afford or shall cause the Transfer Agent and Registrar to afford
such Applicants access during normal business hours to the most recent list of
Registered Certificateholders of such Series or all outstanding Series, as
applicable, held by the Trustee, within five (5) Business Days after the receipt
of such application. Such list shall be as of a date no more than forty-five
(45) days prior to the date of receipt of such Applicants' request.
Every Registered Certificateholder, by receiving and holding a
Registered Certificate, agrees with the Trustee that neither the Trustee, the
Transfer Agent and Registrar, nor any of their respective agents, shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Registered Certificateholders hereunder, regardless of the
sources from which such information was derived.
SECTION 6.08. Book-Entry Certificates. Unless otherwise specified
in the related Supplement for any Series or Class, the Investor Certificates,
upon original issuance, shall be issued in the form of one or more typewritten
Investor Certificates representing the Book-Entry Certificates, to be delivered
to the Depository, by, or on behalf of, the Depositor. The Investor Certificates
shall initially be registered on the Certificate Register in the name of the
Depository or its nominee, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Investor
Certificates, except as provided in Section 6.10 hereof. Unless and until
definitive, fully registered Investor Certificates ("Definitive Certificates")
have been issued to the applicable Certificate Owners pursuant to Section 6.10
hereof or as otherwise specified in any such Supplement:
(a) the provisions of this Section 6.08 shall be in full force and
effect;
(b) the Depositor, the Servicer and the Trustee may deal with the
Depository and the Depository Participants for all purposes (including
the making of distributions) as the authorized representatives of the
respective Certificate Owners;
(c) to the extent that the provisions of this Section 6.08
conflict with any other provisions of this Agreement, the provisions of
this Section 6.08 shall control; and
(d) the rights of the respective Certificate Owners shall be
exercised only through the Depository and the Depository Participants and
shall be limited to those established by law and agreements between such
Certificate Owners and the Depository and/or the Depository Participants.
Pursuant to the Depository Agreement, unless and until Definitive
Certificates are issued pursuant to Section 6.10 hereof, the Depository
will make book-entry transfers among the Depository Participants and
receive and transmit distributions of principal and interest on the
related Investor Certificates to such Depository Participants.
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'SS' 6.08
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of,
Certificateholders evidencing a specified percentage of the aggregate unpaid
principal amount of Investor Certificates, such direction or consent may be
given by Certificate Owners (acting through the Depository and the Depository
Participants) owning Investor Certificates evidencing the requisite percentage
of principal amount of Investor Certificates.
SECTION 6.09. Notices to Depository. Whenever any notice or other
communication is required to be given to Certificateholders of any Series or
Class with respect to which Book-Entry Certificates have been issued, unless and
until Definitive Certificates shall have been issued to the related Certificate
Owners, the Trustee shall give all such notices and communications to the
applicable Depository.
SECTION 6.10. Definitive Certificates. If Book-Entry Certificates
have been issued with respect to any Series or Class and (a) the Depositor
advises the Trustee that the Depository is no longer willing or able to
discharge properly its responsibilities under the Depository Agreement with
respect to such Series or Class and the Depositor is unable to locate a
qualified successor, (b) the Depositor, at its option, advises the Trustee that
it elects to terminate the book-entry system with respect to such Series or
Class through the Depository or (c) after the occurrence of a Servicer Default,
Certificate Owners of such Series or Class evidencing not less than 50% of the
aggregate unpaid principal amount of such Series or Class advise the Trustee and
the Depository through the Depository Participants that the continuation of a
book-entry system with respect to the Investor Certificates of such Series or
Class through the Depository is no longer in the best interests of the
Certificate Owners with respect to such Certificates, then the Trustee shall
notify all Certificate Owners of such Certificates, through the Depository, of
the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Trustee of any such Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Trustee shall execute, on
behalf of the Trust, and authenticate and deliver such Definitive Certificates.
Neither the Depositor nor the Trustee shall be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of such Definitive Certificates
all references herein to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Trustee, to
the extent applicable with respect to such Definitive Certificates and the
Trustee shall recognize the Holders of such Definitive Certificates as
Certificateholders hereunder.
SECTION 6.11. Global Certificate; Exchange Date. (a) If specified
in the related Supplement for any Series or Class, the Investor Certificates
will initially be issued in the form of a single temporary global Certificate
(the "Global Certificate") in bearer form,
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'SS' 6.11
without interest coupons, in the denomination of the entire aggregate principal
amount of such Series or Class and substantially in the form set forth in the
exhibit with respect thereto attached to the related Supplement. The Global
Certificate will be executed by the Trustee, on behalf of the Trust, and
authenticated by the Trustee upon the same conditions, in substantially the same
manner and with the same effect as the Definitive Certificates. The Global
Certificate may be exchanged as described below for Bearer or Registered
Certificates in definitive form (the "Definitive Euro-Certificates").
(b) The Manager shall, upon its determination of the date of
completion of the distribution of the Investor Certificates of such Series or
Class, so advise the Trustee, the Depositor, the Common Depositary, and each
Foreign Clearing Agency forthwith. Without unnecessary delay, but in any event
not prior to the Exchange Date, the Depositor will deliver to the Trustee at its
London office or its designated agent outside the United States definitive
Bearer Certificates in an aggregate principal amount equal to the entire
aggregate principal amount of such Series or Class. All Bearer Certificates so
issued and delivered will have Coupons attached. The Global Certificate may be
exchanged for an equal aggregate principal amount of Definitive
Euro-Certificates only on or after the Exchange Date. A United States
institutional investor may exchange the portion of the Global Certificate
beneficially owned by it only for an equal aggregate principal amount of
Registered Certificates bearing the applicable legend set forth in the form of
Registered Certificate attached to the related Supplement and having a minimum
denomination of $500,000, which may be in temporary form if the Depositor so
elects. The Depositor may waive the $500,000 minimum denomination requirement if
it so elects. Upon any demand for exchange for Definitive Euro-Certificates in
accordance with this subsection (b), the Depositor shall cause the Trustee to
authenticate and deliver the Definitive Euro-Certificates to the Holder (x)
outside the United States, in the case of Bearer Certificates, and (y) according
to the instructions of the Holder, in the case of Registered Certificates, but
in either case only upon presentation to the Trustee of a written statement
substantially in the form of Exhibit F-1 hereto with respect to the Global
Certificate or portion thereof being exchanged, signed by a Foreign Clearing
Agency and dated on the Exchange Date or a subsequent date, to the effect that
it has received in writing or by tested telex a certification substantially in
the form of (i) in the case of beneficial ownership of the Global Certificate or
a portion thereof being exchanged by a United States institutional investor
pursuant to the second preceding sentence, the certificate in the form of
Exhibit F-2 hereof signed by the Manager which sold the relevant Certificates or
(ii) in all other cases, the certificate in the form of Exhibit F-3 hereto, the
certificate referred to in this clause (ii) being dated on the earlier of the
first actual payment of interest in respect of such Certificates and the date of
the delivery of such Certificate in definitive form. Upon receipt of such
certification, the Trustee shall cause the Global Certificate to be endorsed in
accordance with subsection (d) below. Any exchange as provided in this Section
6.11 shall be made free of charge to the Holders and the beneficial owners of
the Global Certificate and to the beneficial owners of the Definitive
Euro-Certificates issued in exchange, except that a person
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'SS' 6.11
receiving Definitive Euro-Certificates must bear the cost of insurance, postage,
transportation and the like in the event that such person does not receive such
Definitive Euro-Certificates in person at the offices of a Foreign Clearing
Agency.
(c) The delivery to the Trustee by a Foreign Clearing Agency of
any written statement referred to above may be relied upon by the Depositor and
the Trustee as conclusive evidence that a corresponding certification or
certifications has or have been delivered to such Foreign Clearing Agency
pursuant to the terms of this Agreement.
(d) Upon any such exchange of all or a portion of the Global
Certificate for a Definitive Euro-Certificate or Certificates, such Global
Certificate shall be endorsed by or on behalf of the Trustee to reflect the
reduction of its principal amount by an amount equal to the aggregate principal
amount of such Definitive Euro-Certificate or Certificates. Until so exchanged
in full, such Global Certificate shall in all respects be entitled to the same
benefits under this Agreement as Definitive Euro-Certificates authenticated and
delivered hereunder except that the beneficial owners of such Global Certificate
shall not be entitled to receive payments of interest on the Certificates until
they have exchanged their beneficial interests in such Global Certificate for
Definitive Euro-Certificates.
SECTION 6.12. Meetings of Investor Certificateholders. (a) If at
the time any Bearer Certificates are issued and outstanding with respect to any
Series or Class to which any meeting described below relates, the Servicer or
the Trustee may at any time call a meeting of Investor Certificateholders of any
Series or Class or of all Series, to be held at such time and at such place as
the Servicer or the Trustee, as the case may be, shall determine, for the
purpose of approving a modification of or amendment to, or obtaining a waiver of
any covenant or condition set forth in, this Agreement, any Supplement or the
Investor Certificates or of taking any other action permitted to be taken by
Investor Certificateholders hereunder or under any Supplement. Notice of any
meeting of Investor Certificateholders, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given in accordance with Section 13.06 hereof, the first mailing and
publication to be not less than twenty (20) nor more than one hundred and eighty
(180) days prior to the date fixed for the meeting. To be entitled to vote at
any meeting of Investor Certificateholders a person shall be (i) a Holder of one
or more Investor Certificates of the applicable Series or Class or (ii) a person
appointed by an instrument in writing as proxy by the Holder of one or more such
Investor Certificates. The only persons who shall be entitled to be present or
to speak at any meeting of Investor Certificateholders shall be the persons
entitled to vote at such meeting and their counsel and any representatives of
the Depositor, the Servicer and the Trustee and their respective counsel.
(b) At a meeting of Investor Certificateholders, persons entitled
to vote Investor Certificates evidencing a majority of the aggregate unpaid
principal amount of the
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'SS' 6.12
applicable Series or Class or all outstanding Series, as the case may be, shall
constitute a quorum. No business shall be transacted in the absence of a quorum,
unless a quorum is present when the meeting is called to order. In the absence
of a quorum at any such meeting, the meeting may be adjourned for a period of
not less than ten (10) days; in the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than ten (10) days; at the reconvening of any meeting further adjourned for
lack of a quorum, the persons entitled to vote Investor Certificates evidencing
at least 25% of the aggregate unpaid principal amount of the applicable Series
or Class or all outstanding Series, as the case may be, shall constitute a
quorum for the taking of any action set forth in the notice of the original
meeting. Notice of the reconvening of any adjourned meeting shall be given as
provided above except that such notice must be given not less than five (5) days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of any adjourned meeting shall state expressly the percentage of
the aggregate principal amount of the outstanding applicable Investor
Certificates which shall constitute a quorum.
(c) Any Investor Certificateholder who has executed an instrument
in writing appointing a person as proxy shall be deemed to be present for the
purposes of determining a quorum and be deemed to have voted; provided, that
such Investor Certificateholder shall be considered as present or voting only
with respect to the matters covered by such instrument in writing. Subject to
the provisions of Section 13.01 hereof, any resolution passed or decision taken
at any meeting of Investor Certificateholders duly held in accordance with this
Section 6.12 shall be binding on all Investor Certificateholders whether or not
present or represented at the meeting.
(d) The holding of Bearer Certificates shall be proved by the
production of such Bearer Certificates or by a certificate, satisfactory to the
Servicer, executed by any bank, trust company or recognized securities dealer,
wherever situated, satisfactory to the Servicer. Each such certificate shall be
dated and shall state that on the date thereof a Bearer Certificate bearing a
specified serial number was deposited with or exhibited to such bank, trust
company or recognized securities dealer by the person named in such certificate.
Any such certificate may be issued in respect of one or more Bearer Certificates
specified therein. The holding by the person named in any such certificate of
any Bearer Certificate specified therein shall be presumed to continue for a
period of one year from the date of such certificate unless at the time of any
determination of such holding (i) another certificate bearing a later date
issued in respect of the same Bearer Certificate shall be produced, (ii) the
Bearer Certificate specified in such certificate shall be produced by some other
person or (iii) the Bearer Certificate specified in such certificate shall have
ceased to be outstanding. The appointment of any proxy shall be proved by having
the signature of the person executing the proxy guaranteed by any bank, trust
company or recognized securities dealer satisfactory to the Trustee.
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'SS' 6.12
(e) The Trustee shall appoint a temporary chairman of the meeting.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Holders of Investor Certificates evidencing a majority of the
aggregate unpaid principal amount of Investor Certificates of the applicable
Series or Class or all outstanding Series, as the case may be, represented at
the meeting. No vote shall be cast or counted at any meeting in respect of any
Investors Certificate challenged as not outstanding and ruled by the chairman of
the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote except as an Investor Certificateholder or proxy. Any meeting of
Investor Certificateholders duly called at which a quorum is present may be
adjourned from time to time, and the meeting may be held as so adjourned without
further notice.
(f) The vote upon any resolution submitted to any meeting of
Investor Certificateholders shall be by written ballot on which shall be
subscribed the signatures of Investor Certificateholders or proxies and on which
shall be inscribed the serial number or numbers of the Investor Certificates
held or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Investor
Certificateholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was published as provided above. The record shall be
signed and verified by the permanent chairman and secretary of the meeting and
one of the duplicates shall be delivered to the Servicer and the other to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE VII
Other Matters Relating
to the Depositor
SECTION 7.01. Liability of the Depositor. The Depositor shall be
liable for all obligations, covenants, representations and warranties of the
Depositor arising under or related to this Agreement. Except as provided in the
preceding sentence, the Depositor shall be liable only to the extent of the
obligations specifically undertaken by it in its capacity as Depositor
hereunder.
SECTION 7.02. Limitation on Liability of the Depositor. Subject to
Section
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'SS' 7.02
7.01 and Section 7.03 hereof, neither the Depositor nor any of the directors,
officers, employees, affiliates, stockholders, agents, representatives or
advisors of the Depositor shall be under any liability to the Trust, the
Trustee, the Certificateholders or any other Person for any action taken or for
refraining from the taking of any action in the capacity as Depositor pursuant
to this Agreement whether arising from express or implied duties under this
Agreement; provided, however, that this provision shall not protect the
Depositor or any such person against any liability which would otherwise be
imposed by reason of wilful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Depositor and any director, officer, employee affiliate,
stockholder, agent, representative or advisor of the Depositor may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder. The Depositor shall not be
under any obligation to appear in, prosecute or defend any legal action which in
its reasonable opinion may involve it in any expense or liability.
SECTION 7.03. Depositor Indemnification of the Trust and the
Trustee. The Depositor shall indemnify and hold harmless the Trust, for the
benefit of the Certificateholders and the other Beneficiaries, and the Trustee,
from and against any loss, liability, reasonable expense, damage or injury
suffered or sustained by reason of any acts, omissions or alleged acts or
omissions arising out of or based upon the arrangement created by this
Agreement, including any judgment, general settlement, reasonable attorneys'
fees and other costs and expenses incurred by the Trustee in connection with the
defense of any actual or threatened action, proceeding or claim (but excluding
losses on Receivables and amounts due with respect thereto); provided, however,
that the Depositor shall not indemnify the Trust or the Trustee or any officer,
director, employee or agent of the Trustee if such acts or omissions constitute,
or such actual or threatened action, proceeding or claim arose out of, or such
loss, liability, expense, damage or injury was caused by, fraud, gross
negligence, breach of fiduciary duty or wilful misconduct by the Trustee; and
provided, further, that the Depositor shall not be liable, directly or
indirectly, for or in respect of any indebtedness or obligation evidenced or
created by any Certificate, recourse as to which is limited solely to the assets
of the Trust allocated for payment thereof as provided in this Agreement and any
applicable Supplement; and provided, further, that the Depositor shall not
indemnify the Trust, Trustee or the Certificateholders or any other
Beneficiaries for any liabilities, cost or expense of the Trust with respect to
any action taken by the Trustee at the request of any such Certificateholders or
other Beneficiaries or with respect to any Federal, state or local income or
franchise taxes (or any interest or penalties with respect thereto) required to
be paid by the Trust or any Certificateholder or other Beneficiary in connection
herewith to any taxing authority. Subject to Section 7.01 hereof, any
indemnification pursuant to this Section 7.03 shall only be from assets of the
Depositor not pledged to third parties or otherwise encumbered in a manner
permitted by the Certificate of Incorporation of the Depositor and shall only be
made after payment in full of any amounts that the Depositor is obligated to
deposit in the Collection Account pursuant to
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'SS' 7.03
this Agreement. Any indemnification under this Article VII shall survive the
termination of this Agreement.
ARTICLE VIII
Other Matters Relating
to the Servicer
SECTION 8.01. Liability of the Servicer. The Servicer shall be
liable under this Article VIII only to the extent of the obligations
specifically undertaken by the Servicer in its capacity as Servicer.
SECTION 8.02. Merger or Consolidation of, or Assumption of, the
Obligations of the Servicer. The Servicer shall not consolidate with or merge
into any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(a) the corporation formed by such consolidation or into which the
Servicer is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Servicer substantially as an entirety
shall be a corporation organized and existing under the laws of the
United States of America or any State or the District of Columbia and, if
the Servicer is not the surviving entity, such corporation shall assume,
without the execution or filing of any paper or any further act on the
part of any of the parties hereto, the performance of every covenant and
obligation of the Servicer hereunder; and
(b) the Servicer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer comply with this Section
8.02 and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 8.03. Limitation on Liability of the Servicer and Others.
Except as provided in Section 8.04 hereof, neither the Servicer nor any of the
directors, officers, employees, affiliates, stockholders, agents,
representatives or advisors of the Servicer, shall be under any liability to the
Trust, the Trustee, the Certificateholders or any other Person for any action
taken or for refraining from the taking of any action in its capacity as
Servicer pursuant to this Agreement; provided, however, that this provision
shall not protect the Servicer or any such person against any liability which
would otherwise be imposed by reason of wilful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Servicer and any director, officer,
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'SS' 8.03
employee, affiliates, stockholders, agent, representatives or advisors of the
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Servicer shall not be under any obligation to appear in, prosecute or defend
any legal action other than as part of the good faith performance of its
servicing obligations hereunder.
SECTION 8.04. Servicer Indemnification of the Trust and the
Trustee. The Servicer shall indemnify and hold harmless the Trust (for the
benefit of the Certificateholders and the other Beneficiaries) and the Trustee
from and against any loss, liability, reasonable expense, damage or injury
suffered or sustained by reason of any acts, omissions or alleged acts or
omissions arising out of or based upon the arrangement created by this
Agreement, including but not limited to any judgment, general settlement,
reasonable attorneys' fees and other costs and expenses incurred by the Trustee
in connection with the defense of any actual or threatened action, proceeding or
claim (but excluding losses on Receivables and amounts due with respect
thereto); provided, however, that the Servicer shall not indemnify or hold
harmless any such indemnified party if such acts or omissions constitute, or
such actual or threatened action, proceeding or claim arose out of, or such
liability, expense, damage or injury was caused by, fraud, gross negligence,
breach of fiduciary duty or wilful misconduct by such indemnified party; and
provided, further, that the Servicer shall not be liable, directly or
indirectly, for or in respect of any indebtedness or obligation evidenced or
created by any Certificate, recourse as to which is limited solely to the assets
of the Trust allocated for payment thereof as provided in this Agreement and any
applicable Supplement; and provided, further, that the Servicer shall not
indemnify the Trust, the Trustee or the Certificateholders or the other
Beneficiaries for any liabilities, cost or expense of the Trust with respect to
any action taken by the Trustee at the request of the Certificateholders or any
other Beneficiaries to the extent the Trustee is fully indemnified by such
Certificateholders or other Beneficiaries with respect to such action or with
respect to any Federal, state or local income or franchise taxes (or any
interest or penalties with respect thereto) required to be paid by the Trust or
the Certificateholders or the other Beneficiaries in connection herewith to any
taxing authority. The Servicer shall indemnify and hold harmless the Trustee and
its officers, directors, employees or agents from and against any loss,
liability, reasonable expense, damage or injury suffered or sustained by reason
of the acceptance of the Trust by the Trustee, the issuance by the Trust of the
Certificates or any of the other matters contemplated herein or in any
Supplement (but excluding losses on Receivables and amounts due with respect
thereto); provided, however, that the Servicer shall not indemnify the Trustee
or its officers, directors, employees or agents for any loss, liability,
expense, damage or injury caused by the fraud, gross negligence, breach of
fiduciary duty or wilful misconduct of any of them. Any indemnification under
this Article VIII shall run directly to and be enforceable by an injured party
subject to the limitations hereof and shall survive the resignation or removal
of the Servicer, the resignation or removal of the Trustee and/or the
termination of the Trust and shall survive the termination of this Agreement.
Any such indemnification shall not be
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'SS' 8.04
payable from the assets of the Trust.
SECTION 8.05. The Servicer Not to Resign. The Servicer shall not
resign from the obligations and duties hereby imposed on it except upon its
determination that the performance of its duties hereunder is no longer
permissible under applicable law. No such resignation shall become effective
until the Trustee or a Successor Servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with Section
10.02 hereof. If the Trustee is unable within sixty (60) days of the date of
such determination to appoint a Successor Servicer, the Trustee shall serve as
Successor Servicer hereunder.
SECTION 8.06. Access to Certain Documentation and Information
Regarding the Receivables. The Servicer shall provide to the Trustee access to
the documentation regarding the Accounts and the Receivables in such cases where
the Trustee is required in connection with the enforcement of the rights of the
Certificateholders, or by applicable statutes or regulations to review such
documentation, such access being afforded without charge but only (a) upon
reasonable request, (b) during normal business hours, (c) subject to the
Servicer's normal security and confidentiality procedures and (d) at offices
designated by the Servicer. Nothing in this Section 8.06 shall derogate from the
obligation of the Depositor, the Trustee or the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors and
the failure of the Servicer to provide access as provided in this Section 8.06
as a result of such obligation shall not constitute a breach of this Section
8.06.
SECTION 8.07. Delegation of Duties. Subject to Section 3.01
hereof, in the ordinary course of business, the Servicer or any Affiliate of BCI
servicing Receivables may at any time delegate any duties hereunder to any
Person who agrees to conduct such duties in accordance with the Financing
Guidelines and this Agreement. The Servicer shall give prompt written notice of
any such delegation of a material function to the Rating Agencies, any Agent and
any Enhancement Providers. Such delegation shall not relieve the Servicer of its
liability and responsibility with respect to such duties, and shall not
constitute a resignation within the meaning of Section 8.05 hereof and the
Rating Agency Condition shall have been satisfied with respect to such
delegation prior to such delegation. It is understood that Affiliates of BCI
perform servicing activities on behalf of BCI with respect to certain
Receivables and that no action on the part of the Servicer under this Section
8.07 is required and the Rating Agency Condition is deemed to have been
satisfied in connection with such servicing activities.
SECTION 8.08. Examination of Records. The Depositor and the
Servicer shall indicate generally in its computer files or other records that
the Receivables arising in the Accounts have been conveyed to the Trust pursuant
to this Agreement for the benefit of the Certificateholders and the other
Beneficiaries. The Depositor and the Servicer shall, prior to the sale or
transfer to a third party of any receivable held in its custody, examine its
computer and other records to determine that such receivable is not a
Receivable.
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'SS' 9.01
ARTICLE IX
Early Amortization Events
SECTION 9.01. Early Amortization Events. If any one of the
following events shall occur:
(a) a failure by the Depositor to convey Receivables in
Additional Accounts to the Trust within five (5) Business Days after
the day on which it is required to convey such Receivables pursuant to
this Agreement;
(b) Bombardier Corporation, the Depositor or the Servicer (or
BCI, if it is not the Servicer) shall file a petition commencing a
voluntary case under any chapter of the Federal bankruptcy laws; or
Bombardier Corporation, the Depositor or the Servicer (or BCI, as
aforesaid) shall file a petition or answer or consent seeking
reorganization, arrangement, adjustment, or composition under any other
similar applicable Federal law, or shall consent to the filing of any
such petition, answer, or consent; or Bombardier Corporation, the
Depositor or the Servicer (or BCI, as aforesaid) shall appoint, or
consent to the appointment of, a custodian, receiver, liquidator,
trustee, assignee, sequestrator or other similar official in bankruptcy
or insolvency of it or of any substantial part of its property; or
Bombardier Corporation, the Depositor or the Servicer (or BCI, as
aforesaid) shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts generally as they
become due;
(c) any order for relief against Bombardier Corporation, the
Depositor or the Servicer (or BCI, if it is not the Servicer) shall
have been entered by a court having jurisdiction in the premises under
any chapter of the Federal bankruptcy laws, and such order shall have
continued undischarged or unstayed for a period of sixty (60) days; or
a decree or order by a court having jurisdiction in the premises shall
have been entered approving as properly filed a petition seeking
reorganization, arrangement, adjustment, or composition of Bombardier
Corporation, the Depositor or the Servicer (or BCI, as aforesaid) under
any other similar applicable Federal law, and such decree or order
shall have continued undischarged or unstayed for a period of one
hundred and twenty (120) days; or a decree or order of a court having
jurisdiction in the premises for the appointment of a custodian,
receiver, liquidator, trustee, assignee, sequestrator, or other similar
official in bankruptcy or insolvency of Bombardier Corporation, the
Depositor or the Servicer (or BCI, as aforesaid) or of any substantial
part of its property or for the winding up or liquidation of its
affairs, shall have been entered, and such decree or order shall have
remained in force undischarged or unstayed for a
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'SS' 9.01
period of one hundred and twenty (120) days;
(d) failure on the part of the Depositor, the Servicer or BCI,
as applicable, to:
(i) make any payment or deposit (including but not
limited to any Transfer Deposit Amount or Adjustment Payment)
required by the terms of this Agreement on or before the date
occurring five (5) Business Days after the date such payment
or deposit is required to be made herein, which failure is not
cured within five (5) Business Days after notice from the
Trustee of such failure; or
(ii) with respect to any Series, deliver a Distribution
Date Statement within ten (10) Business Days after notice from
the Trustee of such failure to deliver such Distribution Date
Statement; or
(iii) duly comply with, observe or perform in any material
respect the covenant of the Depositor set forth in Section
2.06(a) hereof with respect to any Receivable, which failure,
in the case of this clause (iii), has a material adverse
effect on the interests of the Holders of the Investor
Certificates or the Holder of the Variable Funding Certificate
and continues unremedied for a period of sixty (60) days after
the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the
Depositor by the Trustee or any Enhancement Provider;
provided, however, than an Early Amortization Event shall not
be deemed to have occurred if the Depositor shall have
repurchased the related Receivables or, if applicable, all of
the Receivables during such period in accordance with the
provisions of this Agreement; or
(iv) duly observe or perform in any material respect any
other covenants or agreements of the Depositor or the
Servicer, as the case may be, set forth in this Agreement
which failure, in the case of this clause (iv), has a material
adverse effect on the interests of the Holders of the Investor
Certificates or the Holder of the Variable Funding Certificate
and continues unremedied for a period of forty-five (45) days
after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to
the Depositor by the Trustee or any Enhancement Provider;
(e) any representation or warranty made by the Depositor in
this Agreement or any information contained in a computer file or
microfiche or written list required to be delivered by the Depositor
pursuant to Section 2.01, Section 2.05, Section 2.07 or Section 2.08
hereof, (i) shall prove to have been incorrect in any material respect
when
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'SS' 9.01
made or when delivered, and shall continue to be incorrect in any
material respect for a period of sixty (60) days (or such longer period
as may be specified in such notice) after the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given to the Depositor by the Trustee and (ii) as a result of such
incorrectness the interests of the Holders of the Investor Certificates
or the Holder of the Variable Funding Certificate are materially and
adversely affected (excluding, however, the representation and warranty
made by the Depositor pursuant to Section 2.03(m) hereof if this
Agreement constitutes the grant of a perfected security interest in the
Receivables and Collateral Security (and the proceeds thereof) under
the UCC as then in effect in the State of Vermont transferred to the
Trust hereunder); provided, however, that an Early Amortization Event
shall not be deemed to have occurred under this subsection (e) if the
Depositor has repurchased the related Receivable or all such
Receivables, if applicable, during such period in accordance with the
provisions of this Agreement;
(f) the Trust or the Depositor shall become an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended; or
(g) the occurrence of a Liquidation Event;
then, subject to applicable law, and after the applicable grace period, if any,
an amortization event (an "Early Amortization Event") shall occur without any
notice or other action on the part of the Trustee, any Agent, the
Certificateholders or any other Beneficiary, immediately upon the occurrence of
such event.
SECTION 9.02. Additional Rights Upon the Occurrence of Certain
Events. (a) If a Liquidation Event occurs or the Depositor violates Section
2.06(a) hereof for any reason (and such violation becomes an "Early Amortization
Event" under subclause (iii) of Section 9.01(d) hereof), BCRC shall on the day
such Liquidation Event or Early Amortization Event occurs because of such
violation (the "Appointment Date") immediately cease to transfer Receivables to
the Trust and shall promptly give notice to the Trustee of such Liquidation
Event or Early Amortization Event occurring because of such violation.
Notwithstanding any cessation of the transfer to the Trust of additional
Receivables, Receivables transferred to the Trust prior to the occurrence of
such Liquidation Event or Early Amortization Event occurring because of such
violation and Collections in respect of such Receivables whenever created or
accrued in respect of such Receivables, shall continue to be a part of the
Trust. Furthermore, within fifteen (15) days of the date of an event specified
in Section 9.01(b) or Section 9.01(c) hereof with respect to the Depositor or an
Early Amortization Event occurring due to the Depositor violating Section
2.06(a) hereof for any reason, the Trustee shall (i) publish a notice in an
Authorized Newspaper that such event or Early Amortization Event has occurred
and that the Trustee intends to sell, dispose of or otherwise liquidate the
Receivables on
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'SS' 9.02
commercially reasonable terms and in a commercially reasonable manner and (ii)
give notice to Registered Certificateholders and the Holder of the Variable
Funding Certificate describing the provisions of this Section 9.02 and
requesting instructions from such Holders. Unless the Trustee shall have
received instructions within ninety (90) days from the date notice pursuant to
clause (ii) above is first given from (x) Holders of Investor Certificates
evidencing more than 50% of the aggregate unpaid principal amount of each Series
or, with respect to any Series with two or more Classes, of each Class, to the
effect that such Certificateholders disapprove of the liquidation of the
Receivables, and (y) the Holder of the Variable Funding Certificate to such
effect, then the Trustee shall promptly sell, dispose of or otherwise liquidate
the Receivables, or cause to be sold, disposed of or otherwise liquidated, in a
commercially reasonable manner and on commercially reasonable terms, which shall
include the solicitation of competitive bids; provided that if such sale,
disposition or liquidation is being made solely on account of the Depositor's
violation of Section 2.06(a) hereof, then the Trustee shall effect such sale,
disposition or liquidation, to be effected only if the net proceeds of such
sale, disposition or liquidation, applied in accordance with subsection (b) of
this Section 9.02, will be sufficient to pay accrued interest on each Series of
Certificates plus the outstanding principal balance of each Series of
Certificates. The Trustee may obtain and conclusively rely upon a prior
determination from any applicable conservator, receiver or liquidator that the
terms and manner of any proposed sale, disposition or liquidation are
commercially reasonable. The provisions of Section 9.01 hereof and this Section
9.02 shall not be deemed to be mutually exclusive.
(b) The proceeds from the sale, disposition or liquidation of
the Receivables pursuant to subsection (a) above ("Trust Liquidation Proceeds")
shall be immediately deposited in the Collection Account. The Trustee shall
determine conclusively the amount of the Trust Liquidation Proceeds which are
deemed to be Non-Principal Receivables and Principal Receivables. The Trust
Liquidation Proceeds shall be allocated and distributed to Certificateholders
and the Holder of the Variable Funding Certificate in accordance with Article IV
hereof and the terms of each Supplement and the Trust shall terminate
immediately thereafter.
ARTICLE X
Servicer Defaults
SECTION 10.01. Servicer Defaults. If any one of the following events (a
"Servicer Default") shall occur and be continuing with respect to the Servicer:
(a) the failure by the Servicer to make any payment, transfer
or deposit into the Trust (or into any Series Account) on or before the
date such payment, transfer or
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'SS' 10.01
deposit is required to be made under the terms of this Agreement, which
failure is not cured within five (5) Business Days following notice
thereof from the Trustee;
(b) failure on the part of the Servicer duly to observe or
perform its covenant not to create any lien on any Receivable which
failure has a material adverse effect on the Certificateholders and
which continues unremedied for a period of sixty (60) days after
written notice to it of such failure; provided, however, that a
"Servicer Default" shall not be deemed to have occurred if BCRC or the
Servicer shall have repurchased the related Receivables or, if
applicable, all of the Receivables during such period in accordance
with the provisions of this Agreement;
(c) failure on the part of the Servicer duly to observe or
perform any covenants or agreements of the Servicer set forth in this
Agreement (other than with respect to those specified in clause (b)
above and with respect to clauses (vii), (viii) and (ix) under Section
3.03(a) hereof, to the extent the terms of Section 3.03(c) hereof have
been complied with) which failure has a material adverse effect on the
Certificateholders or the Variable Funding Certificateholder and which
continues unremedied for a period of thirty (30) days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Trustee;
(d) any representation, warranty or certification made by the
Servicer in this Agreement or in any certificate delivered pursuant to
this Agreement shall prove to have been incorrect when made and which
continues to be incorrect in any material respect for a period of sixty
(60) days after the date on which written notice thereof, requiring the
same to be remedied, shall have been given to the Servicer by the
Trustee and as a result of which the interests of the
Certificateholders or the Variable Funding Certificateholder are
materially and adversely affected; provided, however, that a "Servicer
Default" shall not be deemed to have occurred if BCRC shall have
repurchased the related Receivables or, if applicable, all of the
Receivables during such period in accordance with the provisions of
this Agreement; or
(e) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator or other similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Servicer or of
or relating to all or substantially all of its property, or a decree or
order of a court or agency or supervisory authority having jurisdiction
in the premises for the appointment of a conservator or receiver or
liquidator or other similar official in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings, or
for the winding-up or liquidation of its affairs, shall have been
entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty (60)
days; or the Servicer shall admit in writing its
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'SS' 10.01
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make any assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations.
In the event of any Servicer Default, so long as the Servicer
Default shall not have been remedied, the Trustee, by notice then given in
writing to the Servicer (a "Termination Notice"), may terminate all but not
less than all of the rights and obligations (other than its obligations that
have accrued up to the time of such termination) of the Servicer as Servicer
under this Agreement and in and to the Receivables and the proceeds thereof.
After receipt by the Servicer of a Termination Notice, and on the date that a
Successor Servicer shall have been appointed by the Trustee pursuant to Section
10.02 hereof, all authority and power of the Servicer under this Agreement shall
pass to and be vested in a Successor Servicer (a "Service Transfer") and,
without limitation, the Trustee is hereby authorized and empowered (upon the
failure of the Servicer to cooperate) to execute and deliver, on behalf of the
Servicer, as attorney-in-fact or otherwise, all documents and other instruments
upon the failure of the Servicer to execute or deliver such documents or
instruments, and to do and accomplish all other acts or things necessary or
appropriate to effect the purposes of such Service Transfer; provided, however,
that in no event shall the Servicer incur any liability for any such action
taken by the Trustee. The Servicer agrees to cooperate with the Trustee and such
Successor Servicer in effecting the termination of the responsibilities and
rights of the Servicer to conduct servicing hereunder, including the transfer to
such Successor Servicer of all authority of the Servicer to service the
Receivables provided for under this Agreement, including all authority over all
Collections which shall on the date of transfer be held by the Servicer for
deposit, or which have been deposited by the Servicer, in the Collection
Account, or which shall thereafter be received with respect to the Receivables,
and in assisting the Successor Servicer. The Servicer shall promptly transfer
its electronic records relating to the Receivables to the Successor Servicer in
such electronic form as the Successor Servicer may reasonably request and shall
promptly transfer to the Successor Servicer all other records, correspondence
and documents necessary for the continued servicing of the Receivables in the
manner and at such times as the Successor Servicer shall reasonably request. To
the extent that compliance with this Section 10.01 shall require the Servicer to
disclose to the Successor Servicer information of any kind which the Servicer
reasonably deems to be confidential, the Successor Servicer shall be required to
enter into such customary licensing and confidentiality agreements as the
Servicer shall deem necessary to protect its interest.
Notwithstanding the foregoing, a delay in or failure of
performance under subsection (a) of this Section 10.01 for a period of up to ten
(10) Business Days after the applicable grace period or a delay in or failure of
performance (or the continuance of any such delay or failure) under subsection
(b), (c) or (d) of this Section 10.01 for a period of up to sixty (60) Business
Days, shall not constitute a Servicer Default if such delay or failure or
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'SS' 10.01
continuance was caused by an act of God or the public enemy, acts of declared or
undeclared war, public disorder, rebellion or sabotage, epidemics, landslides,
lightning, fire, hurricanes, earthquakes, floods or similar causes. The
preceding sentence shall not relieve the Servicer from using its best efforts to
perform its respective obligations in a timely manner in accordance with the
terms of this Agreement and the Servicer shall provide the Trustee, any
Enhancement Providers and the Depositor with an Officers' Certificate giving
prompt notice of such failure or delay by it, together with a description of its
efforts so to perform its obligations. The Servicer shall immediately notify the
Trustee in writing of any Servicer Default.
SECTION 10.02. Trustee to Act; Appointment of Successor. (a)
On and after the receipt by the Servicer of a Termination Notice pursuant to
Section 10.01 hereof, the Servicer shall continue to perform all servicing
functions under this Agreement until the date specified in the Termination
Notice or otherwise specified by the Trustee in writing or, if no such date is
specified in such Termination Notice, or otherwise specified by the Trustee,
until a date mutually agreed upon by the Servicer and Trustee. The Trustee shall
as promptly as possible after the giving of a Termination Notice appoint an
Eligible Servicer as a successor servicer (the "Successor Servicer"), subject to
the consent of any Enhancement Providers and any Agents, which consent shall not
be unreasonably withheld, and such Successor Servicer shall accept its
appointment by a written assumption in a form acceptable to the Trustee. In the
event that a Successor Servicer has not been appointed or has not accepted its
appointment at the time when the Servicer ceases to act as Servicer, the Trustee
without further action shall automatically be appointed the Successor Servicer.
The Trustee may delegate any of its servicing obligations to an Affiliate or
agent in accordance with Section 3.01 and Section 8.07 hereof. Notwithstanding
the above, the Trustee shall, if it is legally unable so to act, petition a
court of competent jurisdiction to appoint any established institution having a
net worth of not less than $100,000,000 and whose regular business includes the
servicing of wholesale receivables as the Successor Servicer hereunder. The
Trustee shall immediately give notice to the Rating Agencies, any Enhancement
Providers, any Agents and the Certificateholders upon the appointment of a
Successor Servicer.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof (except that the Successor Servicer shall not be
liable for any liabilities incurred by the predecessor Servicer), and all
references in this Agreement to the Servicer shall be deemed to refer to the
Successor Servicer. Any Successor Servicer, by its acceptance of its
appointment, will automatically agree to be bound by the terms and provisions of
any Enhancement Agreement.
(c) In connection with any Termination Notice, the Trustee
will review any
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'SS' 10.02
bids which it obtains from Eligible Servicers and shall be permitted to appoint
any Eligible Servicer submitting such a bid as a Successor Servicer for
servicing compensation not in excess of the Servicing Fee (provided that if all
such bids exceed the Servicing Fee the Depositor at its own expense shall pay
when due the amount of any compensation in excess of the Servicing Fee);
provided, however, that the Depositor shall be responsible for payment of the
Depositor's portion of the Servicing Fee as determined pursuant to this
Agreement and all other amounts in excess of the aggregate of the Monthly
Servicing Fees specified in the Supplements, and that no such monthly
compensation paid out of Collections shall be in excess of such aggregate of the
Monthly Servicing Fees. The Holder of the BCRC Certificate and the Holder of any
Supplemental Certificate each agrees that if BCI (or any Successor Servicer) is
terminated as Servicer hereunder, the portion of Collections to be paid to the
Depositor shall be reduced by an amount sufficient to pay Depositor's share of
the compensation of the Successor Servicer.
(d) All authority and power granted to the Successor Servicer
under this Agreement shall automatically cease and terminate upon termination of
the Trust pursuant to Section 12.01 hereof, and shall pass to and be vested in
the Depositor and, without limitation, the Depositor is hereby authorized and
empowered to execute and deliver, on behalf of the Successor Servicer, as
attorney-in-fact or otherwise, all documents and other instruments, and to do
and accomplish all other acts or things necessary or appropriate to effect the
purposes of such transfer of servicing rights. The Successor Servicer agrees to
cooperate with the Depositor in effecting the termination of the
responsibilities and rights of the Successor Servicer to conduct servicing on
the Receivables. The Successor Servicer shall transfer its electronic records
relating to the Receivables to the Depositor in such electronic form as the
Depositor may reasonably request and shall transfer all other records,
correspondence and documents to the Depositor in the manner and at such times as
the Depositor shall reasonably request. To the extent that compliance with this
Section 10.02 shall require the Successor Servicer to disclose to the Depositor
information of any kind which the Successor Servicer deems to be confidential,
the Depositor shall be required to enter into such customary licensing and
confidentiality agreements as the Successor Servicer shall deem necessary to
protect its interests.
ARTICLE XI
The Trustee
SECTION 11.01. Duties of Trustee. (a) The Trustee, prior to
the occurrence of any Servicer Default of which a Responsible Officer of the
Trustee has knowledge and after the curing of all Servicer Defaults which may
have occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement, and no implied
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'SS' 11.01
covenants or duties shall be read into this Agreement against the Trustee. If,
to the knowledge of a Responsible Officer of the Trustee, a Servicer Default has
occurred (and such Servicer Default has not been cured or waived), the Trustee
shall exercise such of the rights and powers vested in it by this Agreement, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
provided, however, that if the Trustee shall assume the duties of the Servicer
pursuant to Section 8.05 or Section 10.02 hereof, the Trustee, in performing
such duties, shall use the degree of skill and attention customarily exercised
by a servicer with respect to comparable receivables that it services for itself
or others.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they substantially conform to the requirements of this
Agreement.
(c) Subject to subsection (a) above, no provision of this
Agreement shall be construed to relieve the Trustee from liability for its own
grossly negligent action, its own grossly negligent failure to act or its own
wilful misconduct; provided, however, that:
(i) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
grossly negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be charged with knowledge of any
Servicer Default or the failure by the Servicer to comply with the
obligations of the Servicer referred to in subsections (a), (b) and (c)
of Section 10.01 hereof unless a Responsible Officer of the Trustee
obtains actual knowledge of such failure;
(iii) the Trustee shall not be charged with knowledge of an Early
Amortization Event unless a Responsible Officer of the Trustee obtains
actual knowledge thereof; and
(iv) the Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Investor Certificates
aggregating more than 66-2/3% of the Invested Amount of any Series
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee with respect to such Series, or
exercising any trust or power conferred upon the Trustee with respect
to such Series, under this Agreement.
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'SS' 11.01
(d) The Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of any of
its duties hereunder or in the exercise of any of its rights or powers, if there
is reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
obligations of the Servicer under this Agreement except during such time, if
any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer in accordance with the terms of
this Agreement. Notwithstanding the prior sentence, the Trustee when acting as
successor Servicer, is still entitled to indemnification under Section 7.03 and
Section 8.04 hereof.
(e) Except as expressly provided in this Agreement, the
Trustee shall have no power to vary the corpus of the Trust including the power
to (i) accept any substitute obligation for a Receivable initially assigned to
the Trust under Section 2.01 or Section 2.05 hereof, (ii) add any other
investment, obligation or security to the Trust or (iii) withdraw from the Trust
any Receivables.
(f) If, to the actual knowledge of a Responsible Officer of
the Trustee, the Transfer Agent and Registrar shall fail to perform any
obligation, duty or agreement in the manner or on the day required to be
performed by the Transfer Agent and Registrar, as the case may be, under this
Agreement, the Trustee shall be obligated promptly upon the actual knowledge of
a Responsible Officer of the Trustee to perform such obligation, duty or
agreement in the manner so required.
(g) If the Depositor has agreed to transfer any of its
receivables (other than the Receivables) to another Person, then upon the
written request of the Depositor, the Trustee, on behalf of the Trust, will
enter into such intercreditor agreements with the transferee of such receivables
as are customary and necessary to identify separately the rights, if any, of the
Trust and such other Person in the Depositor's receivables; provided, however,
that the Trustee shall not be required to enter into any intercreditor agreement
which could, in the sole opinion of the Trustee, adversely affect the interests
of the Certificateholders, the Holder of the Variable Funding Certificate or the
Trustee and, upon the request of the Trustee, the Depositor will deliver an
Opinion of Counsel on any matters relating to such intercreditor agreement,
reasonably requested by the Trustee.
(h) Notwithstanding any other provision contained herein, the
Trustee is not acting as, and shall not be deemed to be, a fiduciary for any
Enhancement Provider in its capacity as such or as a Beneficiary, and the
Trustee's sole responsibility with respect to said parties shall be to perform
those duties with respect to said parties as are specifically set forth herein
and no implied duties or obligations shall be read into this Agreement against
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the Trustee with respect to any such party.
SECTION 11.02. Certain Matters Affecting the Trustee. Except
as otherwise provided in Section 11.01 hereof:
(a) the Trustee may rely on and shall be protected in acting
on, or in refraining from acting in accordance with, any resolution,
Officers' Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by
it to be genuine and to have been signed or presented to it pursuant to
this Agreement by the proper party or parties;
(b) the Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such Opinion of Counsel;
(c) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement or any
Enhancement, or to institute, conduct or defend any litigation
hereunder or in relation hereto, at the request, order or direction of
any of the Certificateholders or any Enhancement Provider, pursuant to
the provisions of this Agreement, unless such Certificateholders or
Enhancement Providers shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby;
(d) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement or any Enhancement;
(e) the Trustee shall not be bound to make any investigation
into the facts of matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian, and the Trustee shall not
be responsible for any misconduct or negligence on the part of any such
agent, attorney or custodian appointed with due care by it hereunder;
(g) except as may be required by Section 11.01(a) hereof, the
Trustee shall
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not be required to make any initial or periodic examination of any
documents or records related to the Receivables or the Accounts for the
purpose of establishing the presence or absence of defects, the
compliance by the Depositor with its representations and warranties or
for any other purpose;
(h) whenever in the administration of this Agreement the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate; and
(i) the right of the Trustee to perform any discretionary act
enumerated in this Agreement or any Supplement not otherwise required
in the performance of its obligations hereunder shall not be construed
as a duty, and the Trustee shall not be answerable for performance of
any such act.
SECTION 11.03. Trustee Not Liable for Recitals in
Certificates; No Responsibility for Filings, Etc. (a) The Trustee assumes no
responsibility for the correctness of the recitals contained herein and in the
Certificates (other than the certificate of authentication on the Certificates).
Except as set forth in Section 11.14 hereof, the Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than the certificate of authentication on the Certificates)
or of any Receivable or related document or any security interest of the Trust
therein. The Trustee shall not be accountable for the use or application by the
Depositor of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor in respect of the
Receivables or deposited in or withdrawn from the Collection Account or any
Series Account.
(b) The Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or Lien
granted to it hereunder (unless the Trustee shall have become the Successor
Servicer) or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Agreement or any Supplement. The Trustee agrees
to cooperate with the Depositor and the Servicer in connection with the
preparation and filing of any such Securities and Exchange Commission filings
and the Trustee hereby authorizes the Depositor and/or the Servicer to make any
such filing for and on behalf of the Trust.
SECTION 11.04. Trustee May Own Certificates. The Trustee in
its individual or any other capacity may become the owner or pledgee of Investor
Certificates and may deal with the Depositor, the Servicer and any Enhancement
Provider with the same rights as it
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'SS' 11.04
would have if it were not the Trustee. The Trustee in its capacity as Trustee
shall exercise its duties and responsibilities hereunder independent of and
without reference to its investment, if any, in Certificates.
SECTION 11.05. The Servicer to Pay Trustee's Fees and
Expenses. The Servicer covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to receive, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by the
Trustee in the execution of the trust hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and,
subject to Section 8.04 hereof, the Servicer will pay or reimburse the Trustee
(without reimbursement from any Collection Account or any Series Account) upon
its request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Agreement
(including the reasonable fees and expenses of its agents, any co-trustee and
counsel) except any such expense, disbursement or advance as may arise from its
gross negligence, wilful misconduct, breach of fiduciary duty or bad faith and
except as provided in the second following sentence. The Servicer's covenants to
pay the expenses, disbursements and advances provided for in the preceding
sentence shall survive the termination of this Agreement. If the Trustee is
appointed Successor Servicer pursuant to Section 10.02 hereof, the provisions of
this Section 11.05 shall not apply to expenses, disbursements and advances made
or incurred by the Trustee in its capacity as Successor Servicer, which shall be
covered out of the Servicing Fee; provided, however, if such expenses,
disbursements and advances incurred by the Trustee are in amount in excess of
the Servicing Fee, such excess amount shall be paid in full to the Trustee by
BCI. To the extent, if any, that any federal, state or local taxes (including
income and franchise taxes) are payable by the Trust, such taxes shall be
payable solely out of Trust Assets and not out of the personal assets of the
Trustee and the Servicer shall not be obligated to pay the amount of any such
tax.
SECTION 11.06. Eligibility Requirements for Trustee. The
Trustee hereunder shall at all times be a corporation organized and doing
business under the laws of the United States of America or any state thereof
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by Federal or state authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purpose of this
Section 11.06, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section 11.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
11.07 hereof.
SECTION 11.07. Resignation or Removal of Trustee. (a) The
Trustee may at
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'SS' 11.07
any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Depositor and the Servicer. Upon receiving such
notice of resignation, the Depositor shall promptly appoint a successor trustee
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted appointment
within thirty (30) days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.06 hereof and shall fail to resign
after written request therefor by the Servicer, or if at any time the Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent, or
if a receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Servicer may, but shall not be required to, remove the Trustee and promptly
appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee.
(c) Any resignation or removal of the Trustee and appointment
of successor trustee pursuant to any of the provisions of this Section 11.07
shall not become effective until acceptance of appointment by the successor
trustee as provided in Section 11.08 hereof.
SECTION 11.08. Successor Trustee. (a) Any successor trustee
appointed as provided in Section 11.07 hereof shall execute, acknowledge and
deliver to the Depositor and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as Trustee herein. The predecessor Trustee shall
deliver to the successor trustee all documents or copies thereof, at the expense
of the Servicer, and statements held by it hereunder; and the Depositor and the
predecessor Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor trustee all such rights, power, duties and
obligations. The Servicer shall immediately give notice to each Rating Agency
and the Certificateholders upon the appointment of a successor trustee.
(b) No successor trustee shall accept appointment as provided in this
Section 11.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 11.06 hereof.
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'SS' 11.08
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 11.08, such successor trustee shall mail notice of such
succession hereunder to all Certificateholders at their addresses as shown in
the Certificate Register.
SECTION 11.09. Merger or Consolidation of Trustee. Any Person
into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such corporation shall be
eligible under the provisions of Section 11.06 hereof, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 11.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust may at the time be located, the Trustee shall have the power and
may execute and deliver all instruments to appoint one or more Persons to act as
a co-trustee or co-trustees, or separate trustee or separate trustees, of all or
any part of the Trust, and to vest in such Person or Persons, in such capacity
and for the benefit of the Certificateholders, such title to the Trust, or any
part thereof, and, subject to the other provisions of this Section 11.10, such
powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
11.06 hereof and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required under Section 11.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
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'SS' 11.10
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article XI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee and a
copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 11.11. Tax Returns. In the event the Trust shall be
required to file tax returns, (i) the Trustee shall advise the Servicer of such
requirement as soon as practicable after a Responsible Officer of the Trustee
becomes aware of such requirement (whether by written notice from any applicable
tax authority or other person) and (ii) the Servicer shall, at its expense,
prepare, or shall cause to be prepared, and shall deliver, or shall cause to be
delivered, to the Trustee no later than five (5) days immediately preceding any
applicable due date and the Trustee shall execute, to the extent it is the
appropriate person to so execute, and file any such tax returns to be filed by
the Trust. The Servicer shall also, in accordance with the terms of the
Supplements, prepare, or cause to be prepared, all tax information required by
law to be distributed to the Certificateholders and the Holder of the Variable
Funding Certificate. The Trustee will distribute, or cause to be distributed,
such information to the Certificateholders and the Holder of the Variable
Funding Certificate. The Trustee, upon request, will furnish the Servicer with
all such information known to the Trustee as may be reasonably required in
connection with the preparation of all tax returns of the Trust or in connection
with the distribution of tax information to the Certificateholders and the
Holder of the Variable Funding Certificate. The Servicer shall prepare or shall
cause to be prepared all tax information required by law to be distributed to
Certificateholders and shall deliver such
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'SS' 11.11
information to the Trustee at least five (5) days prior to the date it is
required by law to be distributed to Investor Certificateholders. In no event
shall the Trustee be liable for any liabilities, costs or expenses of the Trust,
the Certificateholders or the Certificate Owners arising under any tax law,
including without limitation federal, state, local or foreign income or excise
taxes or any other tax imposed on or measured by income (or any interest or
penalty or addition with respect thereto or arising from a failure to comply
therewith).
SECTION 11.12. Trustee May Enforce Claims Without Possession
of Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of any Series of Certificateholders in respect of which such
judgment has been obtained.
SECTION 11.13. Suits for Enforcement. If a Servicer Default of
which a Responsible Officer of the Trustee has actual knowledge shall occur and
be continuing, the Trustee, in its discretion may, subject to the provisions of
Section 10.01 hereof, proceed to protect and enforce its rights and the rights
of any affected Series of Certificateholders under this Agreement by suit,
action or proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Agreement or in aid
of the execution of any power granted in this Agreement or for the enforcement
of any other legal, equitable or other remedy as the Trustee, being advised by
counsel, shall deem most effectual to protect and enforce any of the rights of
the Trustee or any affected Series of Investor Certificateholders. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Certificateholder any plan of
reorganization, arrangement, adjustment or composition affecting the
Certificates or the rights of any Holder thereof, or authorize the Trustee to
vote in respect of the claim of any Certificateholder in any such proceeding.
SECTION 11.14. Representations and Warranties of Trustee. The
Trustee represents and warrants that:
(i) the Trustee is a banking corporation organized, existing
and in good standing under the laws of the State of New York;
(ii) the Trustee has full power, authority and right to execute,
deliver and perform this Agreement and each Supplement, and has taken
all necessary action to authorize the execution, delivery and
performance by it of this Agreement and each Supplement; and
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'SS' 11.14
(iii) this Agreement and each Supplement has been, or will be, as
applicable, duly executed and delivered by the Trustee.
SECTION 11.15. Maintenance of Office or Agency. The Trustee
will maintain at its expense in the Borough of Manhattan, The City of New York,
an office or offices or agency or agencies where notices and demands to or upon
the Trustee in respect of the Certificates and this Agreement may be served. The
Trustee initially designates its Corporate Trust Office as its office for such
purposes in New York. The Trustee will give prompt written notice to the
Servicer and to Holders of the Certificates of any change in the location of the
Certificate Register or any such office or agency.
ARTICLE XII
Termination
SECTION 12.01. Termination of Trust. The Trust and the
respective obligations and responsibilities of the Depositor, the Servicer and
the Trustee created hereby (other than the obligation of the Trustee to make
payments to Certificateholders and the Holder of the Variable Funding
Certificate as hereafter set forth) shall terminate, except with respect to the
duties described in Section 7.03, Section 8.04 and Section 12.02(b) hereof, upon
the earlier of (i) the day following the Distribution Date on which the Invested
Amount for all Series is zero and (ii) January 1, 2014, (the "Trust Termination
Date"). The Servicer will give the Rating Agencies prompt notice of the
termination of the Trust.
SECTION 12.02. Final Distribution. (a) The Servicer shall give
the Trustee at least thirty (30) days prior notice of the Distribution Date on
which the respective Certificateholders of any Series or Class or the Holder of
the Variable Funding Certificate may surrender their respective Certificates for
payment of the final distribution on and cancellation of such Certificates (or,
in the event of a final distribution resulting from the application of Section
2.03 or Section 9.01 hereof, notice of such Distribution Date promptly after the
Servicer has determined that a final distribution will occur, if such
determination is made less than thirty (30) days prior to such Distribution
Date). Such notice shall be accompanied by an Officers' Certificate setting
forth the information specified in Section 3.05 hereof covering the period
during the then-current calendar year through the date of such notice. Not later
than the fifth day of the month in which the final distribution in respect of
such Series or Class or Variable Funding Certificate is payable to
Certificateholders or the Holder of the Variable Funding Certificate, as
applicable, the Trustee shall provide notice to the related Certificateholders
specifying (i) the date upon which final payment thereof will be made upon
presentation and surrender of the related Certificates at the office or offices
therein designated,
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'SS' 12.02
(ii) the amount of any such final payment and (iii) that the Record Date
otherwise applicable to such payment date is not applicable, payments being made
only upon presentation and surrender of the related Certificates at the office
or offices therein specified (which, in the case of Bearer Certificate, shall be
outside the United States). The Trustee shall give such notice to the Transfer
Agent and Registrar and the Rating Agencies at the time such notice is given to
the related Certificateholders.
(b) Notwithstanding a final distribution to the
Certificateholders of any Series or Class or the Holder of the Variable Funding
Certificate (or the termination of the Trust), except as otherwise provided in
this subsection (b), all funds then on deposit in the Collection Account and any
Series Account allocated to such Certificateholders or the Holder of the
Variable Funding Certificate shall continue to be held in trust for the benefit
of such Certificateholders or the Holder of the Variable Funding Certificate, as
applicable, and the Trustee shall pay such funds to such Certificateholders upon
surrender of the related Certificates (and any excess shall be paid in
accordance with the terms of any Enhancement Agreement). In the event that all
such Certificateholders shall not surrender their Certificates for cancellation
within six months after the date specified in the notice from the Trustee
described in subsection (a) above, the Trustee shall give a second notice to the
remaining such Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto (which
surrender and payment, in the case of Bearer Certificates, shall be outside the
United States). If within one year after the second notice all such Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining such Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds in the
Collection Account or, if applicable, any Series Account held for the benefit of
such Certificateholders. The Trustee shall pay to the Depositor any monies held
by it for the payment of principal or interest that remain unclaimed for two
years. After payment to the Depositor, Certificateholders entitled to the money
must look to the Depositor for payment as general creditors unless an applicable
abandoned property law designates another Person.
(c) In the event that (x) the Invested Amount with respect to
any Series is greater than zero on its Termination Date or (y) the Variable
Funding Amount is greater than zero on the Termination Date with respect to the
Variable Funding Certificate, in each case after giving effect to deposits and
distributions otherwise to be made on such Termination Date, the Trustee will
use its best efforts to sell or cause to be sold on such Termination Date
Receivables (or interests therein) in an amount equal to the interest in the
Pool Balance represented by the Certificates; provided, however, that in no
event shall such amount exceed (i) such Series' Allocation Percentage (as
defined in the related Supplements and for the Collection Period in which such
Termination Date occurs) of Receivables on such Termination Date, in the case of
a Series of Investor Certificates, and (ii) the Variable Funding Percentage
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'SS' 12.02
(as defined in the related Supplement and for the Collection Period in which
such Termination Date occurs) of Receivables on such Termination Date, in the
case of the Variable Funding Certificate. The proceeds (the "Termination
Proceeds") from such sale shall be immediately deposited into the Collection
Account for the benefit of the Certificateholders of such Series and the Holder
of the Variable Funding Certificate, as applicable. The Termination Proceeds
shall be allocated and distributed to the Certificateholders of such Series and
the Holder of the Variable Funding Certificate, as applicable, in accordance
with the terms of the applicable Supplement.
SECTION 12.03. Depositor's Termination Rights. Upon the
termination of the Trust pursuant to Section 12.01 hereof and the surrender of
the BCRC Certificate and any Supplemental Certificates, the Trustee shall sell,
assign and convey to the Depositor or its designee, without recourse,
representation or warranty, all right, title and interest of the Trust in the
Receivables, whether then existing or thereafter created, all Collateral
Security with respect thereto, all monies due or to become due and all amounts
received with respect thereto and all proceeds thereof (including without
limitation any investment proceeds on account of the Trust's assets), except for
amounts held by the Trustee pursuant to Section 12.02(b) hereof, and all of the
Depositor's rights, remedies, powers and privileges with respect to such
Receivables under the Receivables Purchase Agreement. The Trustee shall execute
and deliver such instruments of transfer and assignment, in each case without
recourse, as shall be reasonably requested by the Depositor to vest in the
Depositor or its designee all right, title and interest which the Trust had in
all such property.
ARTICLE XIII
Miscellaneous Provisions
SECTION 13.01. Amendment. (a) This Agreement or any Supplement
may be amended from time to time (including in connection with the issuance of a
Supplemental Certificate) by the Servicer, the Depositor, the Trustee and BCI
(if BCI is not the Servicer) without the consent of any of the
Certificateholders, provided that such action shall not, as evidenced by an
Opinion of Counsel for the Depositor, addressed and delivered to the Trustee,
adversely affect in any material respect the interests of any Certificateholder
or the Holder of the Variable Funding Certificate. Notwithstanding anything
contained herein to the contrary, (i) the Trustee, with the consent of any
Enhancement Providers, may at any time and from time to time amend, modify or
supplement the form of Distribution Date Statement and (ii) the Servicer, the
Depositor, the Trustee and BCI (if not then the Servicer) may, with the consent
of the Rating Agencies but without the consent of any of the Certificateholders,
any Enhancement Provider or any other person, amend from time to time (including
in connection with the issuance of a Supplemental Certificate) this Agreement or
any Supplement in order to
92
'SS' 13.01
conform such documents to the description of the Certificates and the
Receivables and the other matters set forth in the Registration Statement filed
by the Depositor with the Securities and Exchange Commission relating to the
initial Investor Certificates, as such Registration Statement is in effect on
the first Closing Date.
(b) This Agreement or any Supplement may also be amended from
time to time (including in connection with the issuance of a Supplemental
Certificate) by the Servicer, the Depositor, the Trustee and BCI (if not then
the Servicer), with the consent of (x) the Holder of the Variable Funding
Certificate, if it would be adversely affected by such amendment, and (y) the
Holders of Investor Certificates evidencing not less than a majority of the
aggregate unpaid principal amount of the Investor Certificates of all adversely
affected Series, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or any Supplement
or of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of or delay the timing of
any distributions to be made to Certificateholders or the Holder of the
Variable Funding Certificate or deposits of amounts to be so
distributed or the amount available under any Enhancement without the
consent of each affected Certificateholder or the Holder of the
Variable Funding Certificate, as applicable;
(ii) change the definition of or the manner of calculating the
interest of any Certificateholder without the consent of each affected
Certificateholder or the Holder of the Variable Funding Certificate, as
applicable;
(iii) reduce the amount available under any Enhancement without the
consent of each affected Certificateholder or the Holder of the
Variable Funding Certificate, as applicable;
(v) adversely affect the rating of any Series or Class by any
Rating Agency without the consent of the Holders of Investor
Certificates of such Series or Class evidencing not less than 66-2/3%
of the aggregate unpaid principal amount of the Investor Certificates
of such Series or Class; or
(iv) reduce the aforesaid percentage required to consent to any
such amendment without the consent of each affected Certificateholder
or the Holder of the Variable Funding Certificate, as applicable.
Any amendment to be effected pursuant to this subsection (b) shall be deemed to
adversely affect all outstanding Series, other than any Series with respect to
which such action shall not, as evidenced by an Opinion of Counsel for the
Depositor, addressed and delivered to the
93
'SS' 13.01
Trustee, adversely affect in any material respect the interests of any
Certificateholder of such Series. The Trustee may, but shall not be obligated
to, enter into any such amendment which affects the Trustee's rights, duties or
immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or
consent (other than an amendment pursuant to subsection (a) above), the Trustee
shall furnish notification of the substance of such amendment to each
Certificateholder and the Holder of the Variable Funding Certificate and the
Servicer shall furnish notification of the substance of such amendment to each
Rating Agency, each Agent and each Enhancement Provider.
(d) It shall not be necessary for the consent of
Certificateholders or the Holder of the Variable Funding Certificate under this
Section 13.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders and the Holder of the Variable Funding
Certificate shall be subject to such reasonable requirements as the Trustee may
prescribe.
(e) Notwithstanding anything in this Section 13.01 to the
contrary, no amendment may be made to this Agreement or any Supplement which
would adversely affect in any material respect the interests of any Enhancement
Provider without the consent of such Enhancement Provider.
(f) Any Supplement executed in accordance with the provisions
of Section 6.03 hereof shall not be considered an amendment to this Agreement
for the purposes of this Section 13.01.
SECTION 13.02. Protection of Right, Title and Interest to
Trust. (a) The Servicer shall cause this Agreement, all amendments hereto and/or
all financing statements and continuation statements and any other necessary
documents covering the Certificateholders' and the Trustee's right, title, and
interest in and to the Trust to be promptly recorded, registered and filed, and
at all times to be kept recorded, registered and filed, all in such manner and
in such places as may be required by law fully to preserve and protect the
right, title and interest of the Certificateholders and the Trustee hereunder to
all property comprising the Trust. The Servicer shall deliver to the Trustee
file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recording, registration or filing. The Depositor shall cooperate fully with the
Servicer in connection with the obligations set forth above and will execute any
and all documents reasonably required to fulfill the intent of this Section
13.02(a).
(b) Prior to the Depositor or the Servicer making any change
in its name, identity or corporate structure which would make any financing
statement or continuation
94
'SS' 13.02
statement filed in accordance with subsection (a) of this Section 13.02
seriously misleading within the meaning of Section 9-402(7) of the UCC as in
effect in Vermont, the Depositor shall give the Trustee and any Agent notice of
any such change and shall, prior to the effect of any such change, file such
financing statements or amendments as may be necessary to continue the
perfection of the Trust's security interest in the Receivables and the proceeds
thereof.
(c) The Depositor and the Servicer will give the Trustee and
any Agent prompt written notice of any relocation of any office from which it
services Receivables or keeps records concerning the Receivables or of its
principal executive office and whether, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement and shall file such financing statements or amendments as may be
necessary to perfect or to continue the perfection of the Trust's ownership
interest or security interest in the Receivables and the proceeds thereof. The
Depositor and the Servicer shall at all times maintain each office from which it
services Domestic Inventory Receivables and its principal executive office
within the United States of America.
(d) The Servicer will deliver to the Trustee and any
Enhancement Provider, upon the execution and delivery of each amendment of this
Agreement or any Supplement, an Opinion of Counsel to the effect specified in
Exhibit G-1 hereto.
SECTION 13.03. Limitation on Rights of Certificateholders. (a)
The death or incapacity of any Certificateholder shall not operate to terminate
this Agreement or the Trust, nor shall such death or incapacity entitle such
Certificateholders' legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding-up of the Trust, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except
as expressly provided in this Agreement) or in any manner otherwise control the
operation and management of the Trust, or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder (other than the Holder of the
Variable Funding Certificate) shall have any right by virtue of any provisions
of this Agreement to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Agreement, unless the Holders of
Investor Certificates evidencing more than 50% of the aggregate unpaid
95
'SS' 13.03
principal amount of all Investor Certificates (or, with respect to any such
action, suit or proceeding that does not relate to all Series, 50% of the
aggregate unpaid principal amount of the Investor Certificates of all Series to
which such action, suit or proceeding relates) shall have made a request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as the
Trustee may require against the costs, expenses and liabilities to be incurred
therein or thereby, and the Trustee, for sixty (60) days after such request and
offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding.
It is understood and intended, and expressly covenanted by
each Certificateholder with every other Certificateholder and the Trustee, that
no one or more Certificateholders shall have any right in any manner whatever by
virtue or by availing itself or themselves of any provisions of this Agreement
to affect, disturb or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Certificateholder, or to enforce any right under this Agreement,
except in the manner herein provided and for the equal, ratable and common
benefit of all Certificateholders except as otherwise expressly provided in this
Agreement. For the protection and enforcement of the provisions of this Section
13.03, each and every Certificateholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 13.04. No Petition. The Servicer, BCI (if it is no
longer the Servicer) and the Trustee, by entering into this Agreement, each
Certificateholder, by accepting an Investor Certificate, the Holder of the
Variable Funding Certificate, by accepting the Variable Funding Certificate or
the pledge of the Variable Funding Certificate, as the case may be, each Holder
of a Supplemental Certificate by accepting a Supplemental Certificate and any
Successor Servicer and each other Beneficiary, by accepting the benefits of this
Agreement, hereby covenants and agrees that they will not at any time institute
against BCRC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal or
state bankruptcy or similar law.
SECTION 13.05. GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 13.06. Notices. (a) All demands, notices,
instructions, directions and communications (collectively, "Notices") under this
Agreement shall be in writing (including telegraphic, telecopy, telex or cable
communication) and shall be deemed to have been duly given if personally
delivered or telegraphed, telecopied, telexed, cabled or
96
'SS' 13.06
delivered, to:
(i) in the case of BCRC, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Vice President and Treasurer;
(ii) in the case of BCI, ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Vice President-Finance; and
(iii) in the case of the Trustee, Bankers Trust Company,
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust & Agency Group, Structured Finance Team,
facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
(b) Any Notice required or permitted to be given to a Holder
of Registered Certificates shall be given by first-class mail, postage prepaid,
at the address of such Holder as shown in the Certificate Register. No Notice
shall be required to be mailed to a Holder of Bearer Certificates or Coupons but
shall be given as provided below. Any Notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Investor Certificateholder receives such Notice. In
addition, in the case of any Series or Class with respect to which any Bearer
Certificates are outstanding, any Notice required or permitted to be given to
Certificateholders of such Series or Class shall be published in an Authorized
Newspaper within the time period prescribed in this Agreement.
SECTION 13.07. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of the
Certificates or rights of the Certificateholders.
SECTION 13.08. Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Section 8.02 hereof, this
Agreement may not be assigned by the Servicer.
SECTION 13.09. Certificates Nonassessable and Fully Paid. It
is the intention of the parties to this Agreement that neither the
Certificateholders nor the Holder of the Variable Funding Certificate shall be
personally liable for obligations of the Trust, that the interests in the Trust
represented by the Investor Certificates and the Variable Funding Certificate
shall be nonassessable for any losses or expenses of the Trust or for any reason
97
'SS' 13.09
whatsoever and that Investor Certificates and the Variable Funding Certificate
upon authentication thereof by the Trustee are and shall be deemed fully paid.
SECTION 13.10. Further Assurances. Each of the Depositor, the
Servicer and the Trustee agrees to do and perform, from time to time, any and
all acts and to execute any and all further instruments required or reasonably
requested by one or more of the other parties hereto more fully to effect the
purposes of this Agreement, including the execution of any financing statements
or continuation statements relating to the Receivables for filing under
the provisions of the UCC of any applicable jurisdiction.
SECTION 13.11. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trustee, the
Certificateholders, the Depositor or the Servicer, as the case may be, any
right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges provided under this Agreement are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 13.12. Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
SECTION 13.13. Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto, the
Certificateholders and the other Beneficiaries and their respective successors
and permitted assigns. Except as otherwise expressly provided in this Agreement,
no other Person will have any right or obligation hereunder.
SECTION 13.14. Actions by Certificateholders. Any request,
demand, authorization, direction, notice, consent, waiver or other act by a
Certificateholder shall bind such Certificateholder and every subsequent Holder
of any Certificate issued upon the registration of transfer of the Certificates
of such Certificateholder or in exchange therefor or in lieu thereof in respect
of anything done or omitted to be done by the Trustee or the Servicer in
reliance thereon, whether or not notation of such action is made upon any such
Certificate.
SECTION 13.15. Rule 144A Information. For so long as any of
the Investor Certificates of any Series or Class are "restricted securities"
within the meaning of Rule 144(a)(3) under the Act, each of the Depositor, the
Trustee, the Servicer and any Enhancement Providers agree to cooperate with each
other to provide to any Certificateholders of such Series or Class and to any
prospective purchaser of Investor Certificates designated by such
98
'SS' 13.15
Certificateholder, upon the request of such Certificateholder or prospective
purchaser, any information required to be provided to such Holder or prospective
purchaser to satisfy the condition set forth in Rule 144A(d))4) under the Act.
SECTION 13.16. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 13.17. Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
or any provision hereof.
IN WITNESS WHEREOF, the Depositor, the Servicer and the
Trustee have caused this Pooling and Servicing Agreement to be duly executed by
their respective officers as of the day and year first above written.
BOMBARDIER CREDIT RECEIVABLES
CORPORATION, Depositor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________________
Title: Vice President
_______________________________
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
______________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
_________________________________
Title: Assistant Secretary
_______________________________
99
BOMBARDIER CAPITAL INC., Servicer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________________
Title: Vice President
_______________________________
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
______________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
_________________________________
Title: Assistant Treasurer
_______________________________
BANKERS TRUST COMPANY, Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________________
Title: Vice President
_______________________________
100
EXHIBIT A
TO POOLING AND SERVICING AGREEMENT
FORM OF FACE OF BCRC CERTIFICATE
THIS BCRC CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. NEITHER THIS BCRC CERTIFICATE NOR ANY PORTION HEREOF MAY BE
OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCH
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.
THIS BCRC CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED, ASSIGNED,
EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
No. R-__________ One Unit
BOMBARDIER RECEIVABLES MASTER TRUST I
BCRC CERTIFICATE
THIS CERTIFICATE REPRESENTS AN INTEREST IN CERTAIN
ASSETS OF THE BOMBARDIER RECEIVABLES MASTER TRUST I
Evidencing an interest in a trust, the corpus of which consists primarily
of (i) extensions of credit and advances (referred to as inventory, wholesale or
floor plan financing) by Bombardier Capital Inc. ("BCI") generated from time to
time and (ii) extensions of credit made by Affiliates of BCI and purchased by
BCI in the ordinary course of business (collectively, the "Receivables") and
maintained by BCI in a portfolio of financing arrangements (the "Accounts")
meeting certain eligibility criteria. This certificate (the "BCRC Certificate")
does not represent an interest in or obligation of Bombardier Credit Receivables
Corporation (the "Depositor" or "BCRC"), BCI or any Affiliate thereof.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this BCRC Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement referred to on
the reverse side hereof, or be valid for any purpose.
A-1
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PROVISIONS.
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust, has caused this
BCRC Certificate to be duly executed.
BOMBARDIER RECEIVABLES MASTER TRUST I
By: BANKERS TRUST COMPANY, not in its
individual capacity but solely as Trustee on
behalf of the Trust
By:______________________________
Authorized Officer
Dated: _______________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the BCRC Certificate described in the within-mentioned Pooling and
Servicing Agreement.
BANKERS TRUST COMPANY,
as Trustee
By:__________________________
Authorized Officer
A-2
FORM OF REVERSE OF BCRC CERTIFICATE
This certifies that BOMBARDIER CREDIT RECEIVABLES CORPORATION ("BCRC") is
the registered owner of a fractional interest in the assets of the BOMBARDIER
RECEIVABLES MASTER TRUST I (the "Trust") not allocated to the Investors'
Interest, the Variable Funding Interest or the interest of any Holder of a
Supplemental Certificate, pursuant to the Pooling and Servicing Agreement dated
as of January 1, 1994 (as amended and supplemented, the "Agreement"), by and
among BCRC, as depositor, Bombardier Capital Inc., as servicer ("BCI"), and
Bankers Trust Company, as trustee (the "Trustee"). The corpus of the Trust will
include (a) all of the Depositor's right, title and interest in, to and under
the Receivables in each Eligible Account (other than any Receivables created in
(x) a Removed Account from and after the applicable Removal Date, as provided in
Section 2.07(c) of the Agreement or (y) an Ineligible Account from and after the
applicable Removal Commencement Date, as provided in Section 2.08(c) of the
Agreement) and all Collateral Security with respect thereto owned by the
Depositor at the close of business on the Cut-Off Date, in the case of the
Initial Accounts, and on the applicable Additional Cut-Off Date, in the case of
Additional Accounts, and all monies due or to become due and all amounts
received with respect thereto and all proceeds thereof (including "proceeds", as
defined in Section 9-306 of the UCC as in effect in the State of Vermont, and
Recoveries, (b) all of the Depositor's rights, remedies, powers and privileges
with respect to such Receivables under the Receivables Purchase Agreement
(excluding, however, any repurchase or other agreements with manufacturers,
importers or distributors relating to Obligors which are being financed by
Domestic Inventory Receivables), (c) all of the Depositor's right, title and
interest in, to and under the Receivables in each Eligible Account (other than
any Receivables created in (x) a Removed Account from and after the applicable
Removal Date, as provided in Section 2.07(c) of the Agreement or (y) an
Ineligible Account from and after the applicable Removal Commencement Date, as
provided in Section 2.08(c) of the Agreement) and all Collateral Security with
respect thereto owned by the Depositor at the close of business of each Transfer
Date and not theretofore conveyed to the Trust, all monies due or to become due
and all amounts received with respect thereto and all proceeds thereof
(including "proceeds" as defined in Section 9-306 of the UCC as in effect in the
State of Vermont, and Recoveries), (d) all monies on deposit in, and Eligible
Investments credited to, the Collection Account or any Series Account, (e) any
Enhancements and (f) all other assets and interests constituting the Trust.
Although a summary of certain provisions of the Agreement is set forth below,
this Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of the Trustee. A copy of the Agreement may be requested
from the Trustee by writing to the Trustee at Bankers Trust Company, Four ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust & Agency Group,
Structured Finance Team. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to them in the Agreement.
Subject to the terms and conditions of the Pooling and Servicing Agreement,
the Depositor may from time to time direct the Trustee, on behalf of the Trust,
to issue one or more new Series, which will represent fractional undivided
interests in certain of the Trust
A-3
Assets.
This BCRC Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended and
supplemented from time to time, the Depositor by virtue of the acceptance hereof
assents and is bound. Although a summary of certain provisions of the Pooling
and Servicing Agreement is set forth below, this Certificate does not purport to
summarize the Pooling and Servicing Agreement and reference is made to the
Pooling and Servicing Agreement for information with respect to the interests,
rights, benefits, obligations, proceeds and duties evidenced hereby and the
rights, duties and obligations of the Trustee. A copy of the Pooling and
Servicing Agreement (without schedules) may be requested from the Trustee by
writing to the Trustee at Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust & Agency Group, Structured Finance Team. To the
extent not defined herein, the capitalized terms used herein have the meanings
ascribed to them in the Pooling and Servicing Agreement.
On the Distribution Date occurring after the Invested Amount is reduced to
10% or less of the aggregate original principal amount of the Certificates, the
Depositor has the option, subject to the condition set forth in Section 7.01(c)
of the Series Supplement, to purchase the entire interest in the Trust
represented by any Class or Classes of Investor Certificates relating to one or
more Series. The purchase price will be equal to the Reassignment Amount (as
defined in the related Series Supplement).
The Receivables consist of (i) advances made directly or indirectly by
Bombardier Capital Inc. to domestic dealers of certain consumer, recreational
and commercial products and (ii) extensions of credit made by affiliates of BCI
to their customers with respect to certain products manufactured or distributed
by such affiliates.
This Certificate is not permitted to be transferred, assigned, exchanged or
otherwise pledged or conveyed except in accordance with the Agreement, including
Section 6.03(d) of the Agreement.
This Certificate does not represent an obligation of, or an interest in
BCI, BCRC or any affiliate of any of them and is not insured or guaranteed by
any governmental agency or instrumentality. This Certificate is limited in right
of payment to certain Collections with respect to the Receivables (and certain
other amounts), all as more specifically set forth herein and in the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time in
accordance with Section 13.01 thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Trustee upon surrender of this Certificate
for registration of transfer at the office or agency of the Transfer Agent and
Registrar in New York City, accompanied by a written instrument of transfer in
form satisfactory to the Trustee or the Transfer Agent and
A-4
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate fractional undivided interest will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement.
This Certificate is the BCRC Certificate, which represents the Depositor's
interest in certain assets of the Trust, including the right to receive a
portion of the Collections and other amounts at the times and in the amounts
specified in the Agreement. The aggregate interest represented by this BCRC
Certificate at any time in the Receivables in the Trust shall not exceed the
Retained Interest at such time. In addition to this BCRC Certificate, (i)
Investor Certificates will be issued pursuant to the Agreement, which will
represent the Investors' Interest, (ii) a Variable Funding Certificate will be
issued pursuant to the Agreement, which will represent the Variable Funding
Interest, and (iii) Supplemental Certificates may be issued pursuant to the
Agreement, which will represent that portion of the Retained Interest not
allocated to the Depositor. This BCRC Certificate shall not represent any
interest in the Collection Account, the Series Accounts or any Enhancements,
except as expressly provided in the Agreement.
Subject to the following paragraph, the obligations created by the
Agreement and the Trust created thereby shall terminate upon the Trust
Termination Date.
Upon the termination of the Trust pursuant to Section 12.01 of the
Agreement and the surrender of the BCRC Certificate, the Trustee shall sell,
assign and convey to the Depositor or its designee, without recourse,
representation or warranty, all right, title and interest of the Trust in the
Receivables, whether then existing or thereafter created, all Collateral
Security with respect thereto, all monies due or to become due and all amounts
received with respect thereto and all proceeds thereof, except for amounts held
by the Trustee pursuant to Section 12.02(b) of the Agreement, and all of the
Depositor's rights, remedies, powers and privileges with respect to such
Receivables under the Receivables Purchase Agreement. The Trustee shall execute
and deliver such instruments of transfer and assignment, in each case without
recourse, as shall be reasonably requested by the Depositor to vest in the
Depositor or its designee all right, title and interest which the Trust had in
all such property.
The Depositor, the Servicer, the Trustee, the Transfer Agent and Registrar
and any agent of any of them, may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Depositor, the Servicer nor the Trustee, the Transfer Agent and Registrar, nor
any agent of any of them, shall be affected by notice to the contrary except in
certain circumstances described in the Pooling and Servicing Agreement.
A-5
EXHIBIT B TO
TO POOLING AND SERVICING AGREEMENT
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.05(d)
of the Pooling and Servicing Agreement)
ASSIGNMENT NO. _____ OF __________ RECEIVABLES
IN ADDITIONAL ACCOUNTS
dated as of __________, ____,
among Bombardier Credit Receivables Corporation,
as depositor (the "Depositor"),
Bombardier Capital Inc., as servicer (the "Servicer")
and Bankers Trust Company, as trustee (the "Trustee"),
pursuant to the Pooling and Servicing Agreement
referred to below.
W I T N E S S E T H :
WHEREAS the Depositor, the Servicer and the Trustee are parties to a
Pooling and Servicing Agreement dated as of January 1, 1994 (as amended or
supplemented, the "Agreement");
WHEREAS, pursuant to the Agreement, the Depositor wishes to designate
Additional Accounts to be included as Accounts and to convey the Receivables and
any related Collateral Security of such Additional Accounts, whether now
existing or hereafter created, to the Trust as part of the corpus of the Trust
(as each such term is defined in the Agreement); and
WHEREAS the Trustee is willing, on behalf of the Trust, to accept such
designation and conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the Depositor, the Servicer and the Trustee, on behalf of
the Trust, hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have the meanings
ascribed to them in the Agreement unless otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional
Accounts designated hereby, ________________, ____.
B-1
2. Designation of Additional Accounts. The Depositor hereby delivers
herewith a computer file or microfiche or written list containing a true and
complete list of all such Additional Accounts specifying for each such Account,
as of the Additional Cut-Off Date, its account number, the aggregate amount of
Receivables, if any, outstanding in such Account and the aggregate amount of
Principal Receivables, if any, in such Account. Such file or list shall, as of
the date of this Assignment, supplement Schedule 1 to the Agreement.
3. Conveyance of Receivables. (a) The Depositor does hereby sell, transfer,
assign, set over and otherwise convey, without recourse (except as expressly
provided in the Agreement), to the Trust for the benefit of the
Certificateholders and the other Beneficiaries, all its right, title and
interest in, to and under the Receivables in such Additional Accounts and all
Collateral Security with respect thereto, owned by the Depositor and existing at
the close of business on the Additional Cut-Off Date and thereafter created from
time to time until the termination of the Trust, all monies due or to become due
and all amounts received with respect thereto and all proceeds thereof
(including "proceeds" as defined in Section 9-306 of the UCC as in effect in the
State of Vermont, and Recoveries). The parties hereto intend that this
Assignment constitute an absolute sale; provided, however, that to the extent
that this Assignment is deemed or recharacterized not to constitute an absolute
sale, the parties intend this transaction to create a security interest under
Article 9 of the UCC. The foregoing sale, transfer, assignment, set-over and
conveyance does not constitute and is not intended to result in the creation or
an assumption by the Trust, the Trustee or any Beneficiary of any obligation of
the Servicer, BCI, the Depositor, Bombardier Corporation or any other Person in
connection with the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation to any Obligors.
(b) In connection with such sale, the Depositor agrees, if necessary, to
record and file, at its own expense, a financing statement on form UCC-l (and
continuation statements when applicable) with respect to the Receivables now
existing and hereafter created for the sale of "chattel paper" and "accounts"
(as defined in Sections 9-105 and 9-106 of the UCC as in effect in any state
where the Depositor's or the Servicer's chief executive offices or books and
records relating to the Receivables are located) meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect the sale and assignment of the Receivables and the Collateral
Security to the Trust, and to deliver a file-stamped copy of such financing
statements or other evidence of such filing to the Trustee on or prior to the
Addition Date. In addition, the Depositor shall cause to be timely filed in the
appropriate filing office any UCC-1 financing statement and continuation
statement necessary to perfect any sale of Receivables to the Trust. The Trustee
shall be under no obligation whatsoever to file such financing statement, or a
continuation statement to such financing statement, or to make any other filing
under the UCC in connection with such sales.
(c) In connection with such sale, the Depositor further agrees, at its own
expense, on or prior to the Addition Date, to cause BCI to indicate in its
computer files as required by the Receivables Purchase Agreement that the
Receivables created in connection with the Additional Accounts designated hereby
have been sold and the Collateral Security assigned to the Trust pursuant to
this Assignment for the benefit of the Certificateholders and
B-2
the other Beneficiaries.
4. Acceptance by Trustee. Subject to the satisfaction of the conditions set
forth in Section 6 of this Assignment, the Trustee hereby acknowledges its
acceptance, on behalf of the Trust, of all right, title and interest previously
held by the Depositor to the property, now existing and hereafter created,
conveyed to the Trust pursuant to Section 3(a) of this Assignment, and declares
that it shall maintain such right, title and interest, upon the trust set forth
in the Agreement for the benefit of the Certificateholders and other
Beneficiaries. The Trustee further acknowledges that, prior to or simultaneously
with the execution and delivery of this Assignment, the Depositor delivered to
the Trustee the computer file or microfiche or written list relating to the
Additional Accounts described in Section 2 of this Assignment. The Trustee shall
be under no obligation whatsoever to verify the accuracy or completeness of the
information contained in such file or list.
5. Representations and Warranties of the Depositor. The Depositor hereby
represents and warrants to the Trustee, on behalf of the Trust, as of the date
of this Assignment and as of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This Assignment constitutes a
legal, valid and binding obligation of the Depositor, enforceable against
the Depositor in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity) and the availability of equitable remedies;
(b) Organization and Good Standing. The Depositor is a corporation
duly organized and validly existing and in good standing under the law of
the State of Delaware and has, in all material respects, full corporate
power, authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business is
presently conducted, and to execute, deliver and perform its obligations
under this Assignment;
(c) Due Qualification. The Depositor is duly qualified to do business
and, where necessary, is in good standing as a foreign corporation (or is
exempt from such requirement) and has obtained all necessary licenses and
approvals in each jurisdiction in which the conduct of its business
requires such qualification except where the failure to so qualify or be in
good standing or obtain licenses or approvals would not have a material
adverse effect on its ability to perform its obligations hereunder;
(d) Eligible Accounts. Each Additional Account designated hereby is an
Eligible Account;
(e) Selection Procedures. No selection procedures reasonably believed
by the Depositor to be adverse to the interests of the Beneficiaries were
utilized in selecting
B-3
the Additional Accounts designated hereby;
(f) Insolvency. As of the Notice Date and the Addition Date, neither
BCI nor the Depositor are insolvent nor, after giving effect to the
conveyance set forth in Section 3 of this Assignment, will any of them have
been made insolvent, nor are any of them aware of any pending insolvency;
(g) Valid Transfer. This Assignment constitutes a valid sale, transfer
and assignment to the Trust of all right, title and interest of the
Depositor in the receivables and any Collateral Security, whether then
existing or thereafter created, and the proceeds thereof (other than
Insurance Proceeds) and upon the filing of the financing statements
described in Section 3 of this Assignment with the Secretary of State of
the State of Vermont grants to the Trust under the UCC as in effect in
Vermont a first priority perfected ownership interest in such property,
except for Liens permitted under Section 2.06(a) of the Agreement and tax
and certain other statutory liens (including liens in favor of the Pension
Benefit Guaranty Corporation); provided, however, that if this Assignment
is deemed to be a grant to the Trust of a security interest under the UCC
as in effect in the State of Vermont in such property, then upon the filing
of the financing statements described in Section 2.01 of the Agreement with
the Secretary of State of the State of Vermont and in the case of the
Receivables hereinafter created and the proceeds thereof, upon the creation
thereof, the Trust shall have a first priority perfected security interest
in such property except for Liens permitted under Section 2.06(a) of the
Agreement and tax and certain other statutory liens (including liens in
favor of the Pension Benefit Guaranty Corporation). Except as otherwise
provided in the Agreement, neither the Depositor nor any Person claiming
through or under the Depositor has any claim to or interest in the Trust
Assets;
(h) Due Authorization. The execution and delivery of this Assignment
and the consummation of the transactions provided for or contemplated by
this Assignment have been duly authorized by the Depositor by all necessary
corporate action on the part of the Depositor;
(i) No Conflict. The execution and delivery of this Assignment, the
performance of the transactions contemplated by this Assignment and the
fulfillment of the terms hereof, will not conflict with, result in any
breach of any of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust, or other
instrument to which the Depositor is a party or by which it or its
properties are bound, except to the extent that such conflict breach or
default will not have a material adverse effect on the Depositor's ability
to perform its obligations hereunder and thereunder;
(j) No Violation. The execution and delivery of this Assignment by the
Depositor, the performance of the transactions contemplated by this
Assignment and the fulfillment of the terms hereof applicable to the
Depositor will not conflict with or
B-4
violate any material Requirements of Law applicable to the Depositor;
(k) No Proceedings. There are no pending proceedings or, to the best
knowledge of the Depositor, investigations pending or threatened against
the Depositor before any Governmental Authority (i) asserting the
invalidity of this Assignment, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Assignment, (iii) seeking any
determination or ruling that, in the reasonable judgment of the Depositor,
would materially and adversely affect the performance by the Depositor of
its obligations under this Assignment, (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Assignment or (v) seeking to affect adversely the
income tax attributes of the Trust under the United States Federal or any
State income or franchise tax systems;
(l) Record of Accounts. As of the Addition Date, Schedule 1 to this
Assignment is an accurate and complete listing in all material respects of
all the Additional Accounts as of the Additional Cut-Off Date being
conveyed pursuant to this Assignment and the information contained therein
with respect to the identity of such Accounts and the Receivables existing
thereunder is true and correct in all material respects as of the
Additional Cut-Off Date;
(m) No Liens. Each Receivable and all Collateral Security existing on
the Addition Date has been conveyed to the Trust free and clear of any
Lien, except for Liens permitted under Section 2.06(a) of the Agreement and
tax and certain other statutory liens (including liens in favor of the
Pension Benefit Guaranty Corporation);
(n) All Consents Required. With respect to each Receivable and all
Collateral Security existing on the Addition Date, all consents, licenses,
approvals or authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given by the
Depositor for the conveyance of such Receivable or Collateral Security to
the Trust, the execution and delivery of this Assignment by the Depositor
and the performance by the Depositor of the transactions contemplated
hereby have been duly obtained, effected or given and are in full force and
effect; and
(o) Eligible Receivables. On the Additional Cut-Off Date each
Receivable conveyed to the Trust as of such date is an Eligible Receivable
or, if such Receivable is not an Eligible Receivable, such Receivable is
conveyed to the Trust in accordance with Section 2.09 of the Agreement.
(p) (1) The Depositor has complied with the requirements of Section
2.05(d) of the Pooling and Servicing Agreement.
6. Conditions Precedent. The acceptance of the Trustee set forth in Section
4 of this Assignment is subject to the satisfaction, on or prior to the Addition
Date, of the following conditions precedent:
B-5
(a) Representations and Warranties. Each of the representations
and warranties made by the Depositor in Section 5 of this Assignment shall
be true and correct as of the date of this Assignment and as of the
Addition Date;
(b) Agreement. Each of the conditions set forth in Section
2.05(d) of the Agreement applicable to the designation of the Additional
Accounts to be designated hereby shall have been satisfied; and
(c) Officers' Certificate. The Depositor shall have delivered to
the Trustee an Officers' Certificate, dated the date of this Assignment, in
which an officer of the Depositor shall state that the representations and
warranties of the Depositor under Section 5 hereof are true and correct.
The Trustee may conclusively rely on such Officers' Certificate, shall have
no duty to make inquiries with regard to the matters set forth therein and
shall incur no liability in so relying.
7. Ratification of Agreement. As supplemented by this Assignment, the
Agreement is in all respects ratified and confirmed and the Agreement as so
supplemented by this Assignment shall be read, taken and construed as one and
the same instrument.
8. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
B-6
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Depositor, the Servicer and the Trustee, on behalf
of the Trust, have caused this Assignment to be duly executed and delivered by
their respective duly authorized officers as of the day and the year first above
written.
BOMBARDIER CREDIT RECEIVABLES
CORPORATION, as Depositor
By:__________________________
Name: ____________________
Title: ___________________
By:__________________________
Name: ____________________
Title: ___________________
B-7
BOMBARDIER CAPITAL INC., as Servicer
By:__________________________
Name: ____________________
Title: ___________________
By:__________________________
Name: ____________________
Title: ___________________
BOMBARDIER RECEIVABLES MASTER TRUST I
By: BANKERS TRUST COMPANY, as Trustee
By:___________________________
Name: _____________________
Title: ____________________
B-8
EXHIBIT C
TO POOLING AND SERVICING AGREEMENT
FORM OF ANNUAL SERVICER'S CERTIFICATE
(As required to be delivered on or before April 30
of each calendar year beginning with April 30,
1995, pursuant to
Section 3.05 of the Pooling and Servicing Agreement)
BOMBARDIER CAPITAL INC.
-----------------------------------------------
BOMBARDIER RECEIVABLES MASTER TRUST I
-----------------------------------------------
The undersigned, duly authorized representatives of Bombardier Capital Inc.
("BCI"), as Servicer, pursuant to the Pooling and Servicing Agreement dated as
of January 1, 1994 (as amended and supplemented, the "Agreement"), by and among
Bombardier Credit Receivables Corporation, as Depositor, BCI, as servicer, and
Bankers Trust Company, as trustee, do hereby certify, on behalf of BCI, that:
1. BCI is, as of the date hereof, the Servicer under the Agreement.
2. The undersigned are Servicing Officers and are duly authorized
pursuant to the Agreement to execute and deliver this Certificate to the
Trustee and any Enhancement Providers.
3. A review of the activities of the Servicer during the calendar
year ended December 31, ______, and of its performance under the Agreement,
was conducted under our supervision.
4. Based on such review, the Servicer has, to the best of our
knowledge, performed in all material respects all of its obligations under
the Agreement throughout such year and no default in the performance of
such obligations has occurred or is continuing except as set forth in
paragraph 5 below.
5. The following is a description of each default in the
performance of the Servicer's obligations under the provisions of the
Agreement known to us to have been made by the Servicer during the year
ended December 31, ____, which sets forth in
C-1
detail the (a) nature of each such default, (b) the action taken by the
Servicer, if any, to remedy each such default and (c) the current status of
each such default: [If applicable, insert "None."]
Capitalized terms used but not defined herein are used as defined
in the Agreement.
IN WITNESS WHEREOF, each of the undersigned has duly executed
this Certificate this ____ day of _______________, ___.
BOMBARDIER CAPITAL INC.
--------------------------------
Name: __________________________
Title: _________________________
--------------------------------
Name: __________________________
Title: _________________________
C-2
EXHIBIT D-l
TO POOLING AND SERVICING AGREEMENT
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). NEITHER THIS CERTIFICATE NOR ANY PORTION HEREOF MAY
BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE
1933 ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
D-1-1
EXHIBIT D-2
TO POOLING AND SERVICING AGREEMENT
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A BENEFIT
PLAN (AS DEFINED BELOW).(*)
---------------------------------
(*) The following should be inserted in any Certificate bearing such legend:
The Certificates may not be acquired by or for the account of any employee
benefit plan, trust or account, including an individual retirement account, that
is subject to the Employee Retirement Income Security Act of 1974, as amended,
or that is described in Section 4975(e)(1) of the Internal Revenue Code of 1986,
as amended, or an entity whose underlying assets include plan assets by reason
of a plan's investment in such entity (a "Benefit Plan"). By accepting and
holding this Certificate, the Holder hereof shall be deemed to have represented
and warranted that it is not a Benefit Plan. By acquiring any interest in this
Certificate, the applicable Certificate Owner or Owners shall be deemed to have
represented and warranted that it or they are not Benefit Plans.
D-2-1
EXHIBIT E
TO POOLING AND SERVICING AGREEMENT
FORM OF LETTER OF REPRESENTATIONS
[Insert form from DTC]
E-1
EXHIBIT F-1
TO POOLING AND SERVICING AGREEMENT
[FORM OF CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE TRUSTEE BY
EUROCLEAR OR CEDEL FOR
DELIVERY OF DEFINITIVE CERTIFICATES
IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL CERTIFICATE]
BOMBARDIER RECEIVABLES MASTER TRUST I
[__________] Asset Backed Certificates, Series 1994-1
[Insert title or sufficient description
of Certificates to be delivered]
We refer to that portion of the temporary Global Certificate
in respect of the above-captioned issue which is herewith submitted to be
exchanged for definitive Certificates (the "Submitted Portion") as provided in
the Pooling and Servicing Agreement dated as of January 1, 1994 (as amended and
supplemented, the "Agreement") in respect of such issue. This is to certify that
(i) we have received a certificate or certificates, in writing or by tested
telex, with respect to each of the persons appearing in our records as being
entitled to a beneficial interest in the Submitted Portion and with respect to
such persons' beneficial interest either (a) from such person, substantially in
the form of Exhibit F-2 to the Agreement, or (b) from _______________,
substantially in the form of Exhibit F-3 to the Agreement, and (ii) the
Submitted Portion includes no part of the temporary Global Certificate excepted
in such certificates.
We further certify that as of the date hereof we have not
received any notification from any of the persons giving such certificates to
the effect that the statements made by them with respect to any part of the
Submitted Portion are no longer true and cannot be relied on as of the date
hereof.
F-1-1
We understand that this certificate is required in connection
with certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such
proceedings.
Dated: ____________________(1) [▇▇▇▇▇▇ Guaranty Trust Company of New
York, Brussels office, as operator of the
Euroclear System](2)
[Centrale de Livraison de Valeurs
Mobiliere S.A.](2)
By: ______________________________
--------
(1) To be dated on the Exchange Date.
(2) Delete the inappropriate reference.
F-1-2
EXHIBIT F-2
TO POOLING AND SERVICING AGREEMENT
[FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CEDEL
BY _______________
WITH RESPECT TO REGISTERED CERTIFICATES SOLD TO
QUALIFIED INSTITUTIONAL BUYERS]
BOMBARDIER RECEIVABLES MASTER TRUST I
[__________] Asset Backed Certificates, Series 1994-1
In consideration of the initial issuance and placement of the
above referenced Asset Backed Certificates (the "Certificates"), an
institutional investor in the United States ("institutional investor") is
purchasing U.S. $_______________ aggregate principal amount of the Certificates
held in our account at [▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System][Cedel S.A.] on behalf of such
investor.
We reasonably believe that such institutional investor is a
qualified institutional buyer as such term is defined under Rule 144A of the
Securities and Exchange Commission under the Securities Act of 1933, as amended.
[We understand that this certificate is required in connection
with United States laws. We irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters covered by
this certificate.]
The Definitive Certificates in respect of this certificate are
to be issued in registered form in the minimum denomination of U.S. $__00,000
and such Definitive Certificates (and, unless the Pooling and Servicing
Agreement or Supplement relating to the Certificates otherwise provides, any
Certificates issued in exchange or substitution for or on registration of
transfer of Certificates) shall bear the following legend:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933. NEITHER THIS
CERTIFICATE NOR ANY PORTION HEREOF MAY BE OFFERED OR
SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO
U.S. PERSONS (EACH AS DEFINED HEREIN), EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCH ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION PROVISIONS. THE TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE POOLING
F-2-1
AND SERVICING AGREEMENT REFERRED TO HEREIN. THIS
CERTIFICATE CANNOT BE EXCHANGED FOR A BEARER
CERTIFICATE."
Dated: _______________ [__________________________]
By: ________________________
Authorized Officer
F-2-2
EXHIBIT F-3
TO POOLING AND SERVICING AGREEMENT
[FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CEDEL BY A BENEFICIAL OWNER
OF CERTIFICATES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER]
BOMBARDIER RECEIVABLES MASTER TRUST I
[__________] Asset Backed Certificates, Series 1994-1
This is to certify that as of the date hereof and except as
provided in the third paragraph hereof, the above-captioned Certificates held by
you for our account (i) are not owned by a person that is a United States
person, (ii) are owned by a United States person that is (A) the foreign branch
of a United States financial institution (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) (a "financial institution") purchasing
for its own account or for resale, or (B) a United States person who acquired
the Certificates through the foreign branch of a financial institution and who
holds the Certificates through the financial institution on the date hereof (and
in either case (A) or (B), the financial institution hereby agrees to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are
owned by a financial institution for purposes of resale during the Restricted
Period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)).
In addition, financial institutions described in clause (iii) of the preceding
sentence (whether or not also described in clause (i) or (ii)) certify that they
have not acquired the Certificates for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
We undertake to advise you by tested telex if the above
statement as to a beneficial ownership is not correct on the date of delivery of
the above-captioned Certificates in bearer form with respect to such of said
Certificates as then appear in your books as being held for our account.
This certificate excepts and does not relate to U.S.
$_______________ principal amount of Certificates held by you for our account,
as to which we are not yet able to certify beneficial ownership. We understand
that delivery of Definitive Certificates in such principal amount cannot be made
until we are able to so certify.
We understand that this certificate is required in connection
with certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings. As used herein, "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and
F-3-1
other areas subject to its jurisdiction; and "United States Person" means a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States, or any
political subdivision thereof, or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
Dated: _______________(1) By: ________________________________
As, or as agent for, the beneficial
owner(s) of the interest in the
Certificates to which this certificate
relates.
--------
(1) This certificate must be dated on the earlier of the date of the first
actual payment of interest in respect of the Certificates and the date
of the delivery of the Certificates in definitive form.
F-3-2
EXHIBIT G-1
TO POOLING AND SERVICING AGREEMENT
FORM OF OPINION OF COUNSEL
IN CONNECTION WITH AMENDMENTS AND SUPPLEMENTS
Provisions to be Included in
Opinion of Counsel Delivered Pursuant
to Section 13.02(d)
(a) The Amendment to the [Pooling and Servicing Agreement]
[Supplement], attached hereto as Schedule 1 (the "Amendment"), has been duly
authorized, executed and delivered by the Depositor and constitutes the legal,
valid and binding agreement of the Depositor, enforceable in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganizations, moratorium or similar laws affecting creditors'
rights generally from time to time in effect. The enforceability of the
Depositor's obligations is also subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and the availability of equitable remedies.
(b) The Amendment has been entered into in accordance with the
terms and provisions of Section 13.01 of the Pooling and Servicing Agreement.
G-1-1
EXHIBIT G-2
TO POOLING AND SERVICING AGREEMENT
FORM OF OPINION OF COUNSEL
IN CONNECTION WITH AMENDMENTS AND SUPPLEMENTS
Provisions to be Included in
Opinion of Counsel Delivered Pursuant
to Section 2.05(d)(ix)
(a) The Assignment has been duly authorized, executed and
delivered by the Depositor, and constitutes the valid and legally binding
obligation of the Depositor, enforceable against the Depositor in accordance
with its terms.
(b) Based on the opinion of general counsel to BCI and
BCRC(2), without any independent investigation, the Transferred Property
constitutes "chattel paper" as defined under Section 9-105(1)(b) of the UCC.
(c) If the transfer of the Transferred Property from BCI to
BCRC is not treated as a true sale, the conveyance language in Section 2.01 of
the Receivables Purchase Agreement is sufficient to create a valid security
interest in favor of BCRC in the Transferred Property. The UCC-1 financing
statements attached hereto as Schedule C are sufficient to perfect the security
interest in Transferred Property created under the Receivables Purchase
Agreement. The proper offices for the filing of such financing statements are
the office of the Secretary of State of the State of Vermont and the office of
the City Clerk of the City of Burlington. Other than the filing of the financing
statements attached hereto as Exhibit C in such offices, and the filing of
continuation statements, no filing or other action is necessary to perfect the
security interest of BCRC in the Transferred Property against third parties
under the UCC.
(d) If the transfer of the Transferred Property from BCRC to
the Trust is not treated as a true sale, the conveyance language in Section 2.01
of the Pooling and Servicing Agreement is sufficient to create a valid security
interest in favor of the trustee in the Transferred Property. The UCC-1
financing statements attached hereto as Exhibit D are sufficient to perfect the
security interest Transferred Property created under the Pooling and Servicing
Agreement. The proper offices for the filing of such financing statements are
the office of the Secretary of State of the State of Vermont and the office of
the City Clerk of the City of Burlington. Other than the filing of the financing
statements attached hereto as schedule D in such offices, and the filing of
continuation statements, no filing or other action
--------
(2) This opinion of general counsel must be attached to this opinion and
must be the same, in form of substance, as the opinion of general
counsel that was delivered at the closing.
G-2-1
is necessary to perfect the security interest of the Trustee in the Transferred
Property against third parties under the UCC.
G-2-2
EXHIBIT H-1
TO POOLING AND SERVICING AGREEMENT
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(As required by Section 2.07(c) of the
Pooling and Servicing Agreement referred to below)
REASSIGNMENT NO. _______ OF RECEIVABLES,
dated as of _______________, ____
by and between BANKERS TRUST COMPANY,
as trustee (the "Trustee") and
BOMBARDIER CREDIT RECEIVABLES CORPORATION,
as depositor (the "Depositor"),
pursuant to the Pooling and Servicing Agreement
referred to below.
WITNESSETH
WHEREAS the Depositor and the Trustee are parties to the
Pooling and Servicing Agreement dated as of January 1, 1994 (as amended or
supplemented, the "Agreement");
WHEREAS, pursuant to Section 2.07 of the Agreement, the
Depositor wishes to remove all Receivables from certain Accounts and the
Collateral Security in respect thereof (the "Removed Accounts") and to cause the
Trustee, on behalf of the Trust, to reconvey the Receivables of such Removed
Accounts and such Collateral Security, whether now existing or hereafter
created, and all amounts currently held by the Trustee or thereafter received by
the Trust in respect of such Removed Accounts, from the Trustee to the Depositor
(as each such term is defined in the Agreement); and
WHEREAS the Trustee, on behalf of the Trust, is willing to
accept such removal and to reconvey the Receivables in the Removed Accounts,
such Collateral Security and any related amounts held or received by the Trust
subject to the terms and conditions hereof.
NOW, THEREFORE, the Depositor and the Trustee, on behalf of
the Trust, hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein shall have
such defined meanings when used herein, unless otherwise defined herein.
2. Notice of Removed Accounts. (a) Not less than five
Business Days prior to
H-1-1
the Removal Date, the Depositor shall furnish to the Trustee, any Enhancement
Providers and the Rating Agencies a written notice specifying the date on which
removal of the Receivables of one or more Accounts will occur, such date being
a Removal Date.
(b) On or before the fifth business day after the Removal
Date, the Depositor shall furnish to the Trustee a computer file, microfiche
list or other list of the Removed Accounts that were removed on the Removal
Date, specifying for each Removed Account (i) its number, (ii) as of the date of
the Removal Notice, the aggregate amount outstanding in such Removed Account and
(iii) as of the Removal Date, the aggregate amount of Principal Receivables
therein and represent that such computer file, microfiche list or other list of
the Removed Accounts is true and complete in all material respects. Such file or
list shall be marked as Schedule 1 to this Reassignment and shall be
incorporated into and made a part of this Reassignment as of the Removal Date
and shall amend Schedule 1 to the Agreement.
3. Conveyance of Receivables and Accounts. (a) The Trustee
does hereby, on behalf of the Trust, transfer, assign, set over and otherwise
convey to the Depositor, without recourse, representation or warranty on and
after the Removal Date, all right, title and interest of the Trust in, to and
under all Receivables now existing at the close of business on the Removal Date
and thereafter created from time to time until the termination of the Trust in
Removed Accounts designated hereby, all Collateral Security in respect thereof,
all monies due or to become due and all amounts received with respect thereto
(including all Non-Principal Receivables) and all proceeds thereof (as defined
in Section 9-306 of the UCC as in effect in the State of Vermont) and Recoveries
relating thereto.
(b) If requested by the Depositor, in connection with such
transfer, the Trustee agrees to execute and deliver to the Depositor on or prior
to the date of this Reassignment, a termination statement with respect to the
Receivables existing at the close of business on the Removal Date and thereafter
created from time to time and Collateral Security in respect thereof in the
Removed Accounts reassigned hereby (which may be a single termination statement
with respect to all such Receivables and Collateral Security) evidencing the
release by the Trust of its lien on the Receivables in the Removed Accounts and
the Collateral Security with respect thereto, and meeting the requirements of
applicable state law, in such manner and such jurisdictions as are necessary to
remove such lien.
4. Acceptance by Trustee. The Trustee hereby acknowledges
that, prior to or simultaneously with the execution and delivery of this
Reassignment, the Depositor delivered to the Trustee the computer file or such
microfiche or written list described in Section 2(b) of this Reassignment.
5. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee as of the date of this
Reassignment and as of the Removal Date:
(a) Legal Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in
H-1-2
accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement
of creditors' rights generally and except as such enforceability may be
limited by general principles of equity (whether considered in a suit
at law or in equity) and the availability of equitable remedies;
(b) No Early Amortization Event. The removal of the Accounts
hereby removed shall not, in the reasonable belief of the Depositor,
cause an Early Amortization Event to occur or cause the Pool Balance to
be less than the Required Pool Balance;
(c) Selection Procedures. No selection procedures reasonably
believed by the Depositor to be adverse to the interests of the
Beneficiaries were utilized in selecting the Accounts to be removed;
(d) True and Complete List. The list of Removed Accounts
described in Section 2(b) of this Assignment is, as of the Removal
Date, true and complete in all material respects; and
6. Condition Precedent. In addition to the conditions
precedent set forth in Section 2.07 of the Agreement, the obligation of the
Trustee to execute and deliver this Reassignment is subject to the Depositor
having delivered on or prior to the Removal Date to the Trustee and any
Enhancement Providers an Officers' Certificate certifying that (i) as of the
Removal Date, all requirements set forth in Section 2.07 of the Agreement for
removing such Accounts and reconveying the Receivables of such Removed Accounts
and the Collateral Security with respect thereto, whether existing at the close
of business on the Removal Date or thereafter created from time to time until
the termination of the Trust, have been satisfied, and (ii) each of the
representations and warranties made by the Depositor in Section 5 hereof is true
and correct as of the date of this Reassignment and as of the Removal Date. The
Trustee may conclusively rely on such Officers' Certificate, shall have no duty
to make inquiries with regard to the matters set forth therein and shall incur
no liability in so relying.
7. Ratification of Agreement. As supplemented by this
Reassignment, the Agreement is in all respects ratified and confirmed and the
Receivables Purchase Agreement as so supplemented by this Reassignment shall be
read, taken and construed as one and the same instrument.
8. Counterparts. This Reassignment may be executed in two or
more counterparts, and by different parties on separate counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED
H-1-3
IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the undersigned have caused this
Reassignment to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
BOMBARDIER RECEIVABLES MASTER TRUST I
By: BANKERS TRUST COMPANY, Trustee
By:___________________________
Name: _____________________
Title: ____________________
BOMBARDIER CREDIT RECEIVABLES
CORPORATION, Depositor
By:___________________________
Name: _____________________
Title: ____________________
By:___________________________
Name: _____________________
Title: ____________________
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
TO POOLING AND SERVICING AGREEMENT
FORM OF REASSIGNMENT OF RECEIVABLES IN INELIGIBLE ACCOUNTS
(As required by Section 2.08(c) of the
Pooling and Servicing Agreement referred to below)
REASSIGNMENT NO. _______ OF RECEIVABLES,
dated as of _______________, ____
by and between BANKERS TRUST COMPANY,
as trustee (the "Trustee") and
BOMBARDIER CREDIT RECEIVABLES CORPORATION,
as depositor (the "Depositor"),
pursuant to the Pooling and Servicing Agreement
referred to below.
WITNESSETH
WHEREAS the Depositor and the Trustee are parties to the
Pooling and Servicing Agreement dated as of January 1, 1994 (as amended or
supplemented, the "Agreement");
WHEREAS, pursuant to Section 2.08 of the Agreement, the
Depositor is required to remove all Receivables from Ineligible Accounts and the
Collateral Security in respect thereof and to cause the Trustee, on behalf of
the Trust, to reconvey the Receivables of such Ineligible Accounts and such
Collateral Security, whether now existing or hereafter created, and all amounts
currently held by the Trustee or thereafter received by the Trust in respect of
such Ineligible Accounts, from the Trustee to the Depositor (as each such term
is defined in the Agreement); and
WHEREAS the Trustee is willing, on behalf of the Trust, to
accept such removal and to reconvey the Receivables in the Ineligible Accounts,
such Collateral Security and any related amounts held or received by the Trust
subject to the terms and conditions hereof.
NOW, THEREFORE, the Depositor and the Trustee, on behalf of
the Trust, hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein shall have
such defined meanings when used herein, unless otherwise defined herein.
2. Notice of Ineligible Accounts. (a) Not less than two (2)
Business Days
H-2-1
prior to the Removal Commencement Date, the Depositor shall furnish to the
Trustee, any Enhancement Providers and the Rating Agencies a written notice
specifying the date on which removal of the Receivables of one or more Accounts
will commence, such date being a Removal Commencement Date.
(b) On or before the fifth business day after the Removal
Commencement Date, the Depositor shall furnish to the Trustee a computer file,
microfiche list or other list of the Ineligible Accounts the removal of which
commenced on the Removal Commencement Date, specifying for each Ineligible
Account as of the date immediately preceding the Removal Commencement Date its
number, the aggregate amount outstanding in such Ineligible Account and the
aggregate amount of Principal Receivables therein and represent that such
computer file, microfiche list or other list of the Ineligible Accounts is true
and complete in all material respects. Such file or list shall be marked as
Schedule 1 to this Reassignment and shall be incorporated into and made a part
of this Reassignment as of the Removal Commencement Date and shall amend
Schedule 1 to the Agreement.
3. Conveyance of Receivables and Accounts. (a) The Trustee
does hereby, on behalf of the Trust, transfer, assign, set over and otherwise
convey to the Depositor, without recourse, representation or warranty on and
after the Removal Commencement Date, all right, title and interest of the Trust
in, to and under (x) all Receivables created from time to time on and after the
Removal Commencement Date until the Removal Termination Date in the Ineligible
Accounts designated hereby and all monies due or to become due and all amounts
received with respect thereto (including all Non-Principal Receivables) and all
proceeds thereof (as defined in Section 9-306 of the UCC as in effect in the
State of Vermont) and Recoveries relating thereto and (y) on the Removal
Termination Date, all Collateral Security in connection with such Ineligible
Accounts and all proceeds thereof (as defined in Section 9-306 of the UCC as in
effect in the State of Vermont and Recoveries) relating thereto.
(b) If requested by the Depositor, in connection with such
transfer, the Trustee agrees to execute and deliver to the Depositor on or prior
to the date of this Reassignment, a termination statement with respect to the
Receivables created from time to time on and after the Removal Commencement Date
in the Ineligible Accounts reassigned hereby (which may be a single termination
statement with respect to all such Receivables and Collateral Security)
evidencing the release by the Trust of its lien on such Receivables in the
Ineligible Accounts, and meeting the requirements of applicable state law, in
such manner and such jurisdictions as are necessary to remove such lien.
4. Acceptance by Trustee. The Trustee hereby acknowledges
that, prior to or simultaneously with the execution and delivery of this
Reassignment, the Depositor delivered to the Trustee the computer file or such
microfiche or written list described in Section 2(b) of this Reassignment.
5. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee as of the date of this
Reassignment and as of the Removal Commencement Date, this Reassignment
constitutes a legal, valid and binding
H-2-2
obligation of the Depositor, enforceable against the Depositor in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect affecting the enforcement of creditors' rights generally
and except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity) and the availability of
equitable remedies.
6. Condition Precedent. In addition to the conditions
precedent set forth in Section 2.08 of the Agreement, the obligation of the
Trustee to execute and deliver this Reassignment is subject to the Depositor
having delivered on or prior to the Removal Commencement Date to the Trustee and
any Enhancement Providers an Officers' Certificate certifying that (i) as of the
Removal Commencement Date, all requirements set forth in Section 2.08 of the
Agreement for removing such Ineligible Accounts and reconveying the Receivables
of such Ineligible Accounts and the Collateral Security, whether existing at the
close of business on the Removal Commencement Date or thereafter created from
time to time until the Removal Termination Date, have been satisfied, and (ii)
each of the representations and warranties made by the Depositor in Section 5
hereof is true and correct as of the date of this Reassignment and as of the
Removal Commencement Date. The Trustee may conclusively rely on such Officers'
Certificate, shall have no duty to make inquiries with regard to the matters set
forth therein and shall incur no liability in so relying.
7. Ratification of Agreement. As supplemented by this
Reassignment, the Agreement is in all respects ratified and confirmed and the
Receivables Purchase Agreement as so supplemented by this Reassignment shall be
read, taken and construed as one and the same instrument.
8. Counterparts. This Reassignment may be executed in two or
more counterparts, and by different parties on separate counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
H-2-3
IN WITNESS WHEREOF, the undersigned have caused this
Reassignment to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
BOMBARDIER RECEIVABLES MASTER TRUST I
By: BANKERS TRUST COMPANY, Trustee
By:___________________________
Name: _____________________
Title: ____________________
BOMBARDIER CREDIT RECEIVABLES
CORPORATION, Depositor
By:___________________________
Name: _____________________
Title: ____________________
By:___________________________
Name: _____________________
Title: ____________________
H-2-4
EXHIBIT I
TO POOLING AND SERVICING AGREEMENT
FORM OF RECEIVABLES PURCHASE AGREEMENT
I-1
EXHIBIT J
TO POOLING AND SERVICING AGREEMENT
FORM OF REPORT OF
INDEPENDENT ACCOUNTANTS ON COMPLIANCE
Board of Directors
Bombardier Capital Inc.,
as Servicer
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
and
Bankers Trust Company,
as Trustee
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
& Agency Group, Structured
Finance Team
Bombardier Receivables Master Trust I
We have examined matters relating to compliance by Bombardier
Capital Inc. with the covenants and conditions of Section 3.01(d), Section 3.02,
Section 3.04, Section 3.05, Section 3.09, Section 4.02, Section 4.03, Section
4.04, Section 10.01(a), Section 10.01(b) and Section 10.01(c) of the Pooling and
Servicing Agreement dated as of January 1, 1994 (as amended, modified or
supplemented from time to time, the "Agreement") among Bombardier Credit
Receivables Corporation, as the Depositor, Bombardier Capital Inc., as the
Servicer, and Bankers Trust Company, as the Trustee, as of January 31, 199__ and
for the period _______________ through January 31, 199__. Our examination was
made in accordance with standards established by the American Institute of
Certified Public Accountants and, accordingly, included such procedures as we
considered necessary in the circumstances.
In our opinion, Bombardier Capital Inc. was in compliance with
the covenants and conditions of the Sections of the Agreement referred to above
at January 31, 199__ and for the period from _______________ through January 31,
199__.
This report is intended solely for your information and is not
to be referred to or distributed for any purpose to anyone who is not authorized
to receive such information as specified in the Agreement or in the Exhibits
attached thereto or in any Supplement thereto.
Very truly yours,
J-1
SCHEDULE 1
List of Accounts
SCHEDULE 2
Collection Account Information
Account Number: 11501
Account Designation: Bombardier Receivable Master Trust I
Name of Institution: Bankers Trust Company
2-1