Exhibit 4.4
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BOMBARDIER CREDIT RECEIVABLES CORPORATION
Purchaser
and
BOMBARDIER CAPITAL INC.
Seller
RECEIVABLES PURCHASE AGREEMENT
Dated as of January 1, 1994
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Table of Contents
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Page
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ARTICLE I
Definitions
SECTION 1.01. Definitions.............................................. 1
SECTION 1.02. Other Definitional Provisions............................ 1
ARTICLE II
Conveyance of Receivables
SECTION 2.01. Conveyance of Receivables................................ 2
SECTION 2.02. Representations and Warranties of the Seller
Relating to the Seller and the Agreement................. 4
SECTION 2.03. Representations and Warranties of the Seller
Relating to the Receivables.............................. 6
SECTION 2.04. Addition of Accounts..................................... 8
SECTION 2.05. Covenants of the Seller.................................. 9
SECTION 2.06. Removal of Accounts...................................... 11
SECTION 2.07. Removal of Ineligible Accounts........................... 12
SECTION 2.08. Sale of Ineligible Receivables........................... 13
ARTICLE III
Administration and Servicing of Receivables
SECTION 3.01. Acceptance of Appointment and Other Matters
Relating to the Servicer................................. 13
SECTION 3.02. Servicing Compensation................................... 13
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ARTICLE IV
Rights of Certificateholders and
Allocation and Application of Collections
SECTION 4.01. Allocations and Applications of Collections
and Other Funds.......................................... 13
ARTICLE V
Other Matters Relating to the Seller
SECTION 5.01. Merger or Consolidation of, or Assumption,
of the Obligations of the Seller......................... 14
SECTION 5.02. Seller Indemnification of the Purchaser.................. 14
ARTICLE VI
Termination
SECTION 6.01. Termination.............................................. 14
ARTICLE VII
[Reserved]
ARTICLE VIII
Miscellaneous Provisions
SECTION 8.01. Amendment............................................. 15
SECTION 8.02. Protection of Right, Title and Interest
to Receivables........................................ 17
SECTION 8.03. Limited Recourse...................................... 17
SECTION 8.04. No Petition........................................... 18
SECTION 8.05. GOVERNING LAW......................................... 18
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SECTION 8.06. Notices............................................. 18
SECTION 8.07. Severability of Provisions.......................... 18
SECTION 8.08. Assignment.......................................... 18
SECTION 8.09. Further Assurances.................................. 18
SECTION 8.10. No Waiver; Cumulative Remedies...................... 18
SECTION 8.11. Counterparts........................................ 19
SECTION 8.11. Third-Party Beneficiaries........................... 19
SECTION 8.12. Merger and Integration.............................. 19
SECTION 8.13. Headings............................................ 19
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EXHIBITS AND SCHEDULES
Exhibit A Form of Assignment
Exhibit B Form of Opinion of Counsel
Exhibit C [RESERVED]
Exhibit D-1 Form of Reassignment of Removed Accounts pursuant to Section 2.06
Exhibit D-2 Form of Reassignment of Ineligible Accounts pursuant to
Section 2.07
Exhibit E Form of BCRC Note
Exhibit F Form of Pledge Agreement
Schedule 1 List of Accounts
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Exhibit 4.4
RECEIVABLES PURCHASE AGREEMENT, dated as of January 1, 1994, between
BOMBARDIER CREDIT RECEIVABLES CORPORATION, a Delaware corporation, as Purchaser,
and BOMBARDIER CAPITAL INC., a Massachusetts corporation, as Seller.
W I T N E S S E T H :
WHEREAS the Seller in the ordinary course of its business (i) finances
the purchase of floorplan and wholesale inventory by dealers of certain
consumer, recreational and commercial products thereby generating certain
payment obligations and (ii) purchases from its affiliates certain payment
obligations stemming from the extension of credit by such affiliates to their
customers of certain products manufactured or distributed by such affiliates;
WHEREAS the Seller wishes to sell certain of such existing and future
payment obligations from time to time to the Purchaser; and
WHEREAS the Purchaser desires initially to sell such payment
obligations to the Bombardier Receivables Master Trust I, pursuant to a Pooling
and Servicing Agreement dated as of January 1, 1994 (as the same may from time
to time be amended, supplemented or otherwise modified, the "Pooling and
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Servicing Agreement"), among the Purchaser, as depositor, the Seller, as
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servicer, and BANKERS TRUST COMPANY, as trustee (the "Trustee").
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NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Definitions. Capitalized terms used herein but not
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otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. In addition, the term "Agreement" means this Receivables Purchase
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Agreement, as the same may from time to time be amended, supplemented or
otherwise modified.
SECTION 1.02. Other Definitional Provisions. (a) The words
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"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; Article, Section, Schedule, and Exhibit references
are references to Sections, Schedules and Exhibits in or to this Agreement
unless otherwise specified; and the term "including" shall mean "including
without limitation".
(b) 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 feminine and neuter genders of such terms.
ARTICLE II
Conveyance of Receivables
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SECTION 2.01. Conveyance of Receivables. (a) By execution of this
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Agreement, the Seller does hereby sell, transfer, assign, set over and otherwise
convey, without recourse (except as expressly provided herein), to the Purchaser
on the first Closing Date, in the case of Initial Accounts, and on the
applicable Addition Date, in the case of Additional Accounts, all of its right,
title and interest in, to and under (x) the Receivables in each Account and all
Collateral Security with respect thereto owned by the Seller 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 (y) any repurchase
agreement (or similar recourse arrangement) between the Seller and the
manufacturer, importer or distributor of Eligible Products (or, if applicable,
such other party with whom such arrangement has been established) in effect from
time to time with respect to any such Receivables (collectively, the "Repurchase
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Agreements"). Subject to Article VI hereof, as of each Business Day prior to
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the earlier of (A) an Appointment Date and (B) the Trust Termination Date, on
which Receivables are created in the Accounts (each, a "Transfer Date"), the
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Seller does hereby sell, transfer, assign, set over and otherwise convey,
without recourse (except as expressly provided herein), to the Purchaser, all of
its right, title and interest in, to and under the Receivables in each Account
(other than any Receivables created in (x) any Removed Account from and after
the applicable Removal Date or (y) any Ineligible Account from and after the
applicable Removal Commencement Date) and all Collateral Security with respect
thereto owned by the Seller at the close of business on such Transfer Date and
not theretofore conveyed to the Purchaser, 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 Agreement
constitute an absolute sale; provided, however, that to the extent that this
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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 Purchaser of any obligation of the Servicer, the Seller, 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 sales, the Seller agrees to record and
file, at its own expense, a financing statement on form UCC-1 (and continuation
statements when applicable) naming the Seller as "seller" and the Purchaser as
"buyer" thereon with respect to the Receivables now existing and hereafter
created for the sale of "chattel paper" and "accounts" (as defined in Section 9-
105 of the UCC as in effect in any state where the Seller'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
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in such jurisdictions as are necessary to perfect the sale and assignment of the
Receivables and the Collateral Security to the Purchaser, and to deliver a
filestamped copy of such financing statements or other evidence of such filing
to the Purchaser on or prior to the first Closing Date, in the case of Initial
Accounts, and (if any additional filing is so necessary) the applicable Addition
Date, in the case of Additional Accounts. In addition, the Seller 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 Purchaser. The Purchaser 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 Purchaser. The parties hereto intend that the transfers
of Receivables effected by this Agreement be sales and hereby agree to so treat
such transfers.
(c) In connection with such sales, the Seller further agrees, at its
own expense, on or prior to the first Closing Date, in the case of Initial
Accounts, and the applicable Addition Date, in the case of Additional Accounts,
(a) to cause BCI to indicate in its computer files that the Receivables created
in connection with the Accounts have been sold, and the Collateral Security
assigned, to the Purchaser pursuant to this Agreement and sold to the Trust
pursuant to the Pooling and Servicing Agreement for the benefit of the
Certificateholders and the other Beneficiaries and (b) to deliver to the
Purchaser 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 Initial Accounts, and the applicable Additional
Cut-Off Date, in the case of Additional Accounts, (i) its account number, (ii)
the 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.
(d) In consideration for the sale of $486,473,108.12 of the
Receivables, together with the related Collateral Security, transferred to the
Purchaser on the first Closing Date, the Purchaser shall (i) deliver to the
Seller an amount equal to $398,344,187.50 in cash, (ii) deliver to the Seller or
to whomever the Seller directs, an amount equal to $29,188,386.49 and (iii)
deliver to the Seller a promissory note, substantially in the form of Exhibit E
hereto (the "BCRC Note"), issued by the Purchaser in favor of the Seller with an
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initial principal amount as of the Closing Date equal to $63,698,668.03.
(e) The purchase price (i) with respect to Eligible Receivables sold
hereunder will equal the principal amount of such Receivables plus accrued and
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unpaid interest thereon on the related Transfer Date and (ii) with respect to
Ineligible Receivables sold hereunder will equal 100% of the net book value (as
determined by the Seller) of such Receivables as of the related Transfer Date.
The consideration paid with respect to sales hereunder subsequent to the Closing
Date may be paid, at the election of Purchaser, (a) in cash, (b) partially in
cash with the balance added to the principal amount of the BCRC Note, or (c) in
its entirety by increasing the principal amount of the BCRC Note.
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(f) As security for the BCRC Note, the Purchaser shall pledge to the
Seller, pursuant to a Pledge Agreement substantially in the form of Exhibit F
hereto (the "Pledge Agreement"), the Variable Funding Certificate to be issued
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pursuant to the Pooling and Servicing Agreement and held by the Purchaser.
(g) Principal and interest payable on the BCRC Note shall be paid by
the Purchaser in accordance with the terms thereof; provided, however, that
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payment of the BCRC Note shall be subordinated, to the extent provided therein,
to any amounts payable under the Certificates.
SECTION 2.02. Representations and Warranties of the Seller Relating
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to the Seller and the Agreement. The Seller hereby represents and warrants to
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the Purchaser as of the first Closing Date and each Series Issuance Date that:
(a) Organization and Good Standing. The Seller is a corporation duly
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organized and validly existing and in good standing under the law of the State
of Massachusetts 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 Seller is duly qualified to do business
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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
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and the consummation of the transactions provided for or contemplated by this
Agreement have been duly authorized by the Seller by all necessary corporate
action on the part of the Seller.
(d) No Conflict. The execution and delivery of this Agreement, the
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performance of the transactions contemplated by this Agreement 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 Seller 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 Seller's ability to perform its
obligations hereunder or under the Pooling and Servicing Agreement.
(e) No Violation. The execution and delivery of this Agreement, the
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performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof applicable to the Seller, will not
conflict with or violate any material Requirements of Law applicable to the
Seller.
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(f) No Proceedings. There are no pending proceedings or, to the best
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knowledge of the Seller, investigations, pending or threatened against the
Seller, before any Governmental Authority (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, (iii) seeking any determination or ruling that,
in the reasonable judgment of the Seller, would materially and adversely affect
the performance by the Seller of its obligations under this Agreement, (iv)
seeking any determination or ruling that would materially and adversely affect
the validity or enforceability of this Agreement 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.
(g) All Consents Required. All appraisals, authorizations, consents,
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orders, approvals or other actions of any Person or of any governmental body or
official required for the execution and delivery by the Seller of this
Agreement, the performance by the Seller of the transactions contemplated by
this Agreement, and the fulfillment by the Seller of the terms hereof or
thereof, have been obtained.
(h) Enforceability. This Agreement constitutes a legal, valid and
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binding obligation of the Seller enforceable against the Seller 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
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Initial Accounts, as of the applicable Addition Date, in the case of the
Additional Accounts, as of the applicable Removal Date, in the case of Removed
Accounts, and as of the applicable Removal Termination Date, in the case of
Ineligible 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 applicable Removal Termination Date, as the case may be.
(j) Valid Transfer. This Agreement or, in the case of Additional
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Accounts, the related Assignment constitutes a valid sale, transfer and
assignment to the Purchaser of all right, title and interest of the Seller in
the Receivables whether now existing or hereafter created and the Collateral
Security and the proceeds thereof (other than Insurance Proceeds). 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
Purchaser shall have under the UCC as in effect in Vermont a valid, subsisting
and enforceable first priority perfected ownership interest in such property.
Except as otherwise provided in the Pooling and Servic-
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ing Agreement, neither the Seller nor any Person claiming through or under the
Seller has any claim to or interest in the Trust Assets.
The representations and warranties set forth in this Section 2.02
shall survive the transfer and assignment of the Receivables to the Purchaser.
Upon discovery by the Seller or the Purchaser of a breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other party.
In the event of any breach of any of the representations and
warranties set forth in this Section 2.02 and if, as a result of any such
breach, the Purchaser shall be obligated to purchase the Investors' Interest
and/or the Variable Funding Interest pursuant to Section 2.03 of the Pooling and
Servicing Agreement, the Seller shall repurchase such Investors' Interest and/or
Variable Funding Interest, as the case may be, and shall pay to the Purchaser on
the Business Day preceding the Distribution Date on which such purchase of the
Investors' Interest and/or the Variable Funding Interest, as applicable, is to
be made by the Purchaser an amount equal to the purchase price therefor as
specified in Section 2.03 of the Pooling and Servicing Agreement. The
obligation of the Seller to purchase such Investors' Interest and/or Variable
Funding Interest, as the case may be, pursuant to this Section 2.02 shall
constitute the sole remedy against the Seller respecting an event of the type
specified in the first sentence of this paragraph available to the Purchaser and
to the Investor Certificateholders and/or the Holder of the Variable Funding
Certificate (or the Trustee on behalf of such Certificateholders).
SECTION 2.03. Representations and Warranties of the Seller Relating
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to the Receivables.
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(a) Representations and Warranties. The Seller hereby represents and
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warrants to the Purchaser that:
(i) Each Receivable and all Collateral Security existing on the
first Closing Date has been or, in the case of Additional Accounts, on
the applicable Addition Date, and on each Transfer Date, will be
conveyed to the Purchaser free and clear of any Lien.
(ii) With respect to each Receivable and all Collateral Security
existing 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 Seller in connection with the
conveyance of such Receivable or Collateral Security to the Purchaser
have been duly obtained, effected or given and are in full force and
effect.
(iii) On the Cut-Off Date, the initial Closing Date and each
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, each such Additional Account is an Eligible
Account.
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(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 Purchaser on such date is an Eligible
Receivable or, if such Receivable is not an Eligible Receivable, such
Receivable is conveyed to the Purchaser in accordance with Section
2.08 hereof.
(v) Each Domestic Inventory Receivable conveyed to the Trust was,
at the time of its creation, and is and will be secured by a first
priority perfected security interest in the related Eligible Product.
(vi) With respect to each Receivable transferred to BCRC 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) All of the Seller's right, title and interest in, to and
under any repurchase agreement (or similar recourse arrangement)
between the Seller and the manufacturer, importer or distributor of
Eligible Products (or, if applicable, such other party with whom such
arrangement has been established) in effect from time to time with
respect to (x) in the case of the Initial Accounts, the Receivables in
each Initial Account and all Collateral Security with respect thereto
owned by the Seller at the close of business on the Cut-Off Date, 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) have been and, (y) in the case of Additional Accounts, the
Receivables in each Additional Account and all Collateral Security
with respect thereto owned by the Seller on the applicable Additional
Cut-Off Date, 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) will be conveyed to the Purchaser
free and clear of any Lien.
(viii) On the first Closing Date, all Repurchase Agreements with
respect to the Initial Accounts shall have been effectively assigned
to the Purchaser (and all required consents from the related
manufacturers, importers or 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
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in this Section 2.03 shall survive the transfer and assignment of the
Receivables to the Purchaser. Upon discovery by the Seller or the Purchaser of
a breach of any of the representations and warranties set forth in this Section
2.03, the party discovering such breach shall give prompt written notice to the
other party.
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(c) Repurchase. In the event any representation or warranty under
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Section 2.03(a) is not true and correct as of the date specified therein with
respect to any Receivable or Account and the Purchaser is, as the result of any
such breach, required to accept a reassignment of such Receivable or all
Receivables in such Account pursuant to Section 2.04(c) of the Pooling and
Servicing Agreement, then, within thirty (30) days (or such longer period as may
be agreed to by the Purchaser) of the earlier to occur of the discovery of any
such event by the Seller or the Purchaser, or receipt by the Seller or the
Purchaser of written notice of any such event given by the Trustee or any
Enhancement Providers, the Seller shall, unless a Liquidation Event has
occurred, repurchase the Receivable or Receivables of which the Purchaser is
required to accept reassignment pursuant to the Pooling and Servicing Agreement
on the Business Day preceding the Determination Date on which such reassignment
is to occur.
The Seller shall purchase each such Receivable pursuant to this
Section 2.03 by making a payment to the Purchaser in immediately available funds
on the Business Day preceding the Distribution Date on which such reassignment
is to occur in an amount equal to the Purchase Price for such Receivable. Upon
payment of the Purchase Price, the Purchaser shall automatically and without
further action be deemed to sell, transfer, assign, set over and otherwise
convey to the Seller, without recourse, representation or warranty, all the
right, title and interest of the Purchaser in and to such Receivable, all
Collateral Security and all monies due or to become due with respect thereto and
all proceeds thereof. The Purchaser shall execute such documents and
instruments of transfer or assignment and take such other actions as shall
reasonably be requested by the Seller to effect the conveyance of such
Receivables pursuant to this Section. The obligation of the Seller to
repurchase any such Receivable shall constitute the sole remedy respecting the
event giving rise to such obligation available to the Purchaser and to the
Certificateholders (or the Trustee on behalf of Certificateholders).
SECTION 2.04. Addition of Accounts. (a) The Seller may from time to
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time offer to voluntarily designate additional Eligible Accounts to be included
as Accounts, subject to the conditions specified in paragraph (b) below. If any
such offer is accepted by the Purchaser, Receivables and Collateral Security
from such Additional Accounts shall be sold to the Purchaser effective on a date
(the "Addition Date") specified in a written notice provided by the Seller (or
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the Servicer on its behalf) to the Purchaser and any Enhancement Providers
specifying the Additional Cut-Off Date and the Addition Date for such Additional
Accounts (the "Addition Notice") on or before the tenth Business Day but not
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more than the 30th day prior to the related Addition Date (the "Notice Date").
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(b) The Seller shall be permitted to convey to the Purchaser the
Receivables and all Collateral Security related thereto in any Additional
Accounts designated by the Seller as such pursuant to subsection (a) above only
upon satisfaction of each of the following conditions on or prior to the related
Addition Date:
(i) The Seller shall provide the Purchaser and any Enhancement
Providers with a timely Addition Notice;
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(ii) Such Additional Accounts shall all be Eligible Accounts and the
Rating Agency Condition shall have been satisfied;
(iii) The Seller shall have delivered to the Purchaser a duly
executed written assignment in substantially the form of Exhibit A hereto
(the "Assignment") and the computer file or microfiche or written list
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required to be delivered pursuant to Section 2.01 hereof;
(iv) The Seller, to the extent required by Section 4.03 of the Pooling
and Servicing Agreement, shall have delivered to the Purchaser for deposit
in the Collection Account all Collections with respect to such Additional
Accounts since the Additional Cut-Off Date;
(v) (A) No selection procedures believed by the Seller to be
adverse to the interests of the Purchaser or the Beneficiaries 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 (C) as of each of
the Notice Date and the Addition Date, neither the Seller, the Purchaser
nor the Servicer are insolvent nor will have been made insolvent by such
transfer nor are aware of any pending insolvency;
(vi) The addition of the Receivables arising in such Additional
Accounts shall not in the reasonable belief of the Seller result in the
occurrence of an Early Amortization Event; and
(vii) The Seller shall have delivered to the Purchaser and any
Enhancement Providers a certificate of a Vice President or more senior
officer confirming the items set forth in clauses (ii) through (vi) above.
(c) The Seller hereby represents and warrants as of the applicable
Addition Date as to the matters set forth in clause (v) of subsection (b) of
this Section 2.04. The representations and warranties set forth in clause (v)
of subsection (b) of this Section 2.04 shall survive the sale and assignment of
the respective Receivables and Collateral Security to the Purchaser. Upon
discovery by the Seller or the Purchaser of a breach of any of the foregoing
representations and warranties, the party discovering the breach shall give
prompt written notice to the other party and to any Enhancement Providers.
(d) At least ten (10) days prior to each Addition Date in respect of
the designation of any Additional Accounts pursuant to this Section 2.04, the
Seller shall have given written notice of such designation to the Rating
Agencies.
SECTION 2.05. Covenants of the Seller. The Seller hereby covenants
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that:
(a) No Liens. Except for the conveyances hereunder and tax liens and
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certain other statutory liens (including liens in favor of the Pension Benefit
Guaranty Corporation), the Seller will not sell, pledge, assign or transfer to
any other Person, or grant, create, incur, assume or suffer to exist any Lien
on, any Receivable or any Collateral Security, whether
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now existing or hereafter created, or any interest therein, and the Seller shall
defend the right, title and interest of the Purchaser and the Trust in, to and
under the Receivables and the Collateral Security, whether now existing or
hereafter created, against all claims of third parties claiming through or under
the Seller.
(b) Inventory Security Agreements and Financing Guidelines. The
------------------------------------------------------
Seller shall (i) comply with and perform its servicing obligations with respect
to the Receivables and (ii) if applicable, cause its Affiliates to comply with
and perform their respective servicing obligations with respect to the
Receivables in accordance with the Inventory Security Agreements relating to the
Accounts, to the extent applicable, and the Financing Guidelines, and otherwise
in accordance with the provisions of the Pooling and Servicing Agreement except
insofar as any failure to so comply or perform would not materially and
adversely affect the rights of the Purchaser, Trust or any of the Beneficiaries.
Subject to compliance with all Requirements of Law, the Seller or any of its
Affiliates may change the terms and provisions of the Inventory Security
Agreements or 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 such change would be permitted pursuant to
Section 3.01(d) of the Pooling and Servicing Agreement.
(c) Account Allocations. In the event that the Seller is unable for
-------------------
any reason to transfer Receivables with respect to any Account to the Purchaser,
then the Seller agrees that it shall allocate, after the occurrence of such
event, payments on each 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 the Pooling and
Servicing Agreement. The parties hereto agree that Non-Principal Receivables,
whenever created, accrued in respect of Principal Receivables which have been
conveyed to the Purchaser and by the Purchaser to the Trust shall continue to be
a part of the Trust notwithstanding any cessation of the transfer of additional
Principal Receivables to the Purchaser and Collections with respect thereto
shall continue to be allocated and paid in accordance with Article IV of the
Pooling and Servicing Agreement.
(d) Delivery of Collections. In the event that the Seller receives
-----------------------
Collections, the Seller agrees to pay the Servicer or any Successor Servicer all
payments received by the Seller in respect of the Receivables with respect to
any Account as soon as practicable after receipt thereof by the Seller, but in
no event later than two (2) Business Days after the receipt by the Seller
thereof. Receipt by the Seller's Affiliates of payments in respect of Other
Account Receivables shall not be deemed to be received by the Seller until
received by the Seller from such Affiliate.
(e) Notice of Liens. The Seller shall notify the Purchaser and the
---------------
Trustee promptly after becoming aware of any Lien on any Receivable other than
the conveyances hereunder or under the Pooling and Servicing Agreement.
(f) Compliance with Law. The Seller hereby agrees to comply in all
--------------------
material respects with all Requirements of Law applicable to the Seller in
connection with its servicing of the Receivables and the Accounts the failure to
comply with which would have a materially adverse effect on the interests of the
Beneficiaries.
10
(g) BCRC Note. The Seller agrees not to transfer the BCRC Note to
---------
any other person while any Investor Certificates are outstanding, except that
(i) this subsection (g) shall not apply to any merger or consolidation involving
the Seller or a sale of all or substantially all of the Seller's assets and (ii)
this subsection (g) shall not apply following a Liquidation Event with respect
to any transfer of the BCRC Note as a result of any foreclosure sale, attachment
of assets or other action by any creditors of the Seller or by any trustee,
receiver or custodian with respect to it or its assets.
SECTION 2.06. Removal of Accounts. (a) On each date on which
-------------------
Accounts, including all amounts then held by the Trust or thereafter received by
the Trust with respect to such Accounts, are removed from the Trust pursuant to
Section 2.07 of the Pooling and Servicing Agreement, the Purchaser shall be
deemed to have offered to the Seller automatically and without notice to or
action by or on behalf of the Purchaser, the right to remove Accounts from the
operation of this Agreement in the manner prescribed in subsection (b) below.
(b) To accept such offer and remove Accounts, including all amounts
then held by the Trust or thereafter received by the Trust with respect to such
Accounts being removed, the Seller (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 Purchaser, 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
Purchaser 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 Seller, 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 believed by
the Seller 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
11
(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.
(c) Subject to subsection (b) above, on the Removal Date with respect
to any such Removed Account, such Removed Account shall be deemed removed by
operation of this Agreement for all purposes. After the Removal Date and upon
the written request of the Servicer, the Purchaser shall deliver to the Seller a
reassignment in substantially the form of Exhibit D-1 hereto (a "Reassignment").
------------
SECTION 2.07. 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 Seller shall commence removal of the Receivables of such Ineligible Account
in the manner prescribed in subsection (b) of this Section 2.07.
(b) With respect to each Account that becomes an Ineligible Account,
the Seller (or the Servicer on its behalf) shall take the following actions and
make the following determinations:
(i) furnish to the Purchaser, the Trustee, the Rating Agencies, any
Agent 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 Purchaser 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 2.07; and
(iii) within five (5) Business Days after the Removal Commencement Date,
amend Schedule 1 by delivering to the Trustee a computer file or microfiche
or written list containing a true and complete list of the related
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.
(c) Subject to subsection (b) of this Section 2.07, on each Business
Day from and after the Removal Commencement Date until the Removal Termination
Date with respect to any Ineligible Account, the Seller shall proceed to
allocate any Collections therefor in accordance with Section 2.08(b)(v) of the
Pooling and Servicing Agreement, until the principal balances of the Receivables
included in the Trust with respect to any such Account have been reduced to zero
(such date being deemed a Removal Date), upon which such Account shall be deemed
a Removed Account. After the Removal Termination Date and
12
upon the written request of the Servicer, the Purchaser shall deliver to the
Seller a Reassignment in substantially the form of Exhibit D-2 hereto.
SECTION 2.08. Sale of Ineligible Receivables. The Seller shall sell
------------------------------
to the Purchaser on each Transfer Date any and all Receivables arising in any
Eligible Accounts that are Ineligible Receivables; provided, however, 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.
ARTICLE III
Administration and Servicing of Receivables
-------------------------------------------
SECTION 3.01. Acceptance of Appointment and Other Matters Relating to
-------------------------------------------------------
the Servicer. (d) The Seller agrees to act as the Servicer under this
------------
Agreement and the Pooling and Servicing Agreement, and the Purchaser consents to
the Seller acting as Servicer. The Seller will have ultimate responsibility for
servicing, managing and making collections on the Receivables and will have the
authority to make any management decisions relating to such Receivables, to the
extent such authority is granted to the Servicer under this Agreement and the
Pooling and Servicing Agreement.
(e) The Servicer shall service and administer the Receivables in
accordance with the provisions of the Pooling and Servicing Agreement.
SECTION 3.02. Servicing Compensation. As full compensation for its
----------------------
servicing activities hereunder and under the Pooling and Servicing Agreement,
the Servicer shall be entitled to receive the Servicing Fee on each Distribution
Date. The Servicing Fee shall be paid in accordance with the terms of the
Pooling and Servicing Agreement.
ARTICLE IV
Rights of Certificateholders and
--------------------------------
Allocation and Application of Collections
-----------------------------------------
SECTION 4.01. Allocations and Applications of Collections and Other
-----------------------------------------------------
Funds. The Servicer will apply all Collections with respect to the Receivables
-----
and all funds on deposit in the Collection Account as described in Article IV of
the Pooling and Servicing Agreement.
13
ARTICLE V
Other Matters Relating to the Seller
------------------------------------
SECTION 5.01. Merger or Consolidation of, or Assumption, of the
-------------------------------------------------
Obligations of the Seller. The Seller 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:
(f) the corporation formed by such consolidation or into which the
Seller is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Seller 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 Seller 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 Seller
hereunder; and
(g) the Seller has delivered to the Purchaser and the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer comply with this Section 5.01
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 5.02. Seller Indemnification of the Purchaser. Subject to
---------------------------------------
the last sentence of Sections 2.02 and 2.03, the Seller shall indemnify and hold
harmless the Purchaser, from and against any loss, liability, expense, claim,
damage or injury suffered or sustained as a result of a breach of any of its
representations, warranties, covenants or agreements set forth herein or,
including any judgment, award, settlement, reasonable attorneys' fees and other
costs or expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim; provided, however, that the Seller shall
-------- -------
not indemnify the Purchaser if such acts, omissions or alleged acts or omissions
constitute fraud, gross negligence or wilful misconduct by the Purchaser; and
provided, further, that the Seller shall not indemnify the Purchaser for any
-------- -------
liabilities, cost or expense of the Purchaser 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 Purchaser in connection herewith to any
taxing authority. Any indemnification under this Article V shall survive the
termination of the Agreement.
ARTICLE VI
Termination
-----------
SECTION 6.01. Termination. This Agreement will terminate immediately
-----------
after the Trust terminates pursuant to the Pooling and Servicing Agreement. In
addition, upon an Appointment Date, the Purchaser shall not purchase Receivables
nor shall the Seller designate Additional Accounts. In addition, the Purchaser
shall not purchase Receivables nor
14
shall the Seller designate Additional Accounts if the Seller shall become an
involuntary party to (or be made the subject of) any proceeding provided for by
any insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Seller or relating to all or
substantially all of its property (an "Involuntary Case") and such Involuntary
----------------
Case shall have continued for a period of ten (10) Business Days from and
including the day of receipt by the Seller at its principal corporate office of
notice of such Involuntary Case; provided, however, that during such ten (10)
-------- -------
Business Day period, the Purchaser shall suspend its purchase of Receivables and
shall hold all Collections of Principal Receivables that would have been
available to purchase Receivables in the Collection Account and (a) if by the
first Business Day after such ten (10) Business Day period, the Purchaser has
not obtained an order from the court having jurisdiction of such case or filing
which order approves the continuation of the sale of Receivables by the Seller
to the Purchaser and which provided that the Purchaser and any of its
transferees (including the Trustee) may rely on such order for the validity and
nonavoidance of such transfer (the "Order"), the Purchaser shall hold such
-----
Collections in the Collection Account until such time as they may be paid as
elsewhere provided herein and shall not purchase Receivables thereafter or
designated Additional Accounts for transfer to the Purchaser, or (b) if by such
first Business Day, the Purchaser has obtained such Order, the Seller may
continue selling Receivables, and the Purchaser may continue purchasing
Receivables, pursuant to the terms hereof, as modified by the immediately
succeeding sentence. During the period after the ten (10) Business Day period
described above and before the end of the 60-day period described below, the
purchase price of the Receivables transferred during such period,
notwithstanding anything in this Agreement to the contrary, shall be paid to the
Seller by the Purchaser in cash not later than the same Business Day of any
sale of Receivables. During such period, Receivables will be considered
transferred to the Purchaser only to the extent that the purchase price therefor
has been paid in cash on the same Business Day. If an Order is obtained but
subsequently is reversed or rescinded or expires, the Seller shall immediately
cease selling Receivables to the Purchaser and the Purchaser shall immediately
cease buying Receivables. The Seller shall give prompt written notice to each
of the Purchaser and the Trustee immediately upon becoming a party to an
Involuntary Case. If by the first Business Day after the 60-day period after
such involuntary filing, such Involuntary Case has not been dismissed, the
Purchaser shall not purchase thereafter Receivables or designated Additional
Accounts for transfer to the Trustee.
ARTICLE VII
[Reserved]
ARTICLE VIII
Miscellaneous Provisions
------------------------
SECTION 8.01. Amendment. (a) This Agreement may be amended from
---------
time to time by the Seller and the Purchaser; provided, however, that such
-------- -------
action shall not adversely affect in any material respect the interests of any
Investor Certificateholder or the
15
Holder of the Variable Funding Certificate; provided, however, that any
-------- -------
amendment to this Agreement in order to conform to the description of the
Certificates and the Receivables and the other matters set forth in the
Registration Statement filed by the Purchaser with the Securities and Exchange
Commission relating to the initial Investor Certificates, as such Registration
Statement is in effect on the first Closing Date, shall not be deemed to
adversely affect the interests of any Certificateholder or the Holder of the
Variable Funding Certificate.
(b) This Agreement may also be amended from time to time by the
Purchaser and Seller with the consent of the Holders of Investor Certificates
evidencing not less than a majority of the aggregate unpaid principal amount of
the Investor Certificates of all materially adversely affected Series, and with
the consent of the Holder of the Variable Funding Certificate, if adversely
affected by such amendment, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Seller; 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 Certificateholders or the Holder of the Variable Funding
Certificate without the consent of each affected Certificateholder or the Holder
of the Variable Funding Certificate, as applicable, (iii) 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 any aforesaid percentage
required to consent to any such amendment without the consent of each
Certificateholder and/or the Holder or the Variable Funding Certificate, as
appropriate. Any amendment to be effected pursuant to this subsection (b) shall
be deemed to materially 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 Seller, addressed and delivered to the 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 Seller shall
furnish notification of the substance of such amendment to each
Certificateholder, each Enhancement Provider, each Agent and each Rating Agency.
(d) It shall not be necessary for the consent of Certificateholders
under this Section 8.01 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 shall be subject to
such reasonable requirements as the Trustee may prescribe.
16
(e) Notwithstanding anything in this Section 8.01 to the contrary, no
amendment may be made to this Agreement which would adversely affect in any
material respect the interests of any Enhancement Provider without the consent
of such Enhancement Provider.
SECTION 8.02. Protection of Right, Title and Interest to Receivables.
------------------------------------------------------
(a) The Seller shall cause this Agreement, all amendments hereto and/or all
financing statements and continuation statements and any other necessary
documents covering the Purchaser's right, title and interest to the Receivables
and Collateral Security relating thereto 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 Purchaser hereunder. The Seller
shall deliver to the Purchaser 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 Purchaser shall
cooperate fully with the Seller in connection with the obligations set forth
above and will execute any and all documents reasonably required to fulfill the
intent of this Section 8.02(a).
(b) Prior to the Seller making any change in its name, identity or
corporate structure which would make any financing statement or continuation
statement filed in accordance with subsection (a) above seriously misleading
within the meaning of Section 9-402(7) of the UCC as in effect in the State of
Vermont, the Seller shall give the Purchaser and any Agent notice of any such
change and shall prior to the effectiveness of any such change file such
financing statements or amendments as may be necessary to continue the
perfection of the Purchaser's security interest in the Receivables and the
proceeds thereof.
(c) The Seller will give the Purchaser prompt written notice of any
relocation of any office at which it 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 Purchaser's
security interest in the Receivables and the proceeds thereof. The Seller will
at all times maintain its principal executive office within the United States of
America.
(d) The Seller will deliver to the Purchaser upon the execution and
delivery of each amendment of this Agreement, an Opinion of Counsel to the
effect specified in Exhibit B hereto addressed and delivered to the Trustee.
SECTION 8.03. Limited Recourse. Notwithstanding anything to the
----------------
contrary contained herein, the obligations of the Purchaser hereunder shall not
be recourse to the Purchaser (or any person or organization acting on behalf of
the Purchaser or any affiliate, officer or director of the Purchaser), other
than to any assets of the Purchaser not pledged to third parties or otherwise
encumbered in a manner permitted by the Purchaser's Certificate of
Incorporation; provided, however, that any payment by the Purchaser made in
-------- -------
accordance with this Section 8.03 shall be made only after payment in full of
any amounts that the Purchaser is obligated to deposit in the Collection Account
pursuant to the Pooling and
17
Servicing Agreement; and provided, further, that the Certificateholders shall be
-------- -------
entitled to the benefits of the subordination of the Collections allocable to
the Retained Interest to the extent provided in the applicable Supplements.
SECTION 8.04. No Petition. The Seller hereby covenants and agrees
-----------
that it will not at any time institute against the Purchaser any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law.
SECTION 8.05. 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 8.06. Notices. All demands, notices and communications
-------
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to the parties at such addresses specified in the Pooling
and Servicing Agreement.
SECTION 8.07. 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 8.08. Assignment. Notwithstanding anything to the contrary
----------
contained herein, this Agreement may not be assigned by the Seller without the
prior consent of the Purchaser and the Trustee. The Purchaser may assign its
rights, remedies, powers and privileges under this Agreement to the Trust
pursuant to the Pooling and Servicing Agreement.
SECTION 8.09. Further Assurances. Each of the Seller and the
------------------
Purchaser 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 the
other 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 8.10. No Waiver; Cumulative Remedies. No failure to exercise
------------------------------
and no delay in exercising, on the part of the Purchaser or the Seller, 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 herein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
18
SECTION 8.11. 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 8.11. 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 provided in this Agreement, no other Person will
have any right or obligation hereunder.
SECTION 8.12. 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 8.13. Headings. The headings herein are for purposes of
--------
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
19
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Receivables Purchase Agreement to be duly executed by their respective officers
as of the day and year first above written.
BOMBARDIER CREDIT RECEIVABLES CORPORATION, Purchaser
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------
Title: Vice President
---------------------------------
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxxx
---------------------------------
Title: Assistant Secretary
---------------------------------
BOMBARDIER CAPITAL INC., Seller
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------
Title: Vice President
---------------------------------
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxxx
---------------------------------
Title: Assistant Treasurer
---------------------------------
20
EXHIBIT A TO RPA
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.04
of the Receivables Purchase Agreement)
ASSIGNMENT No. _____ OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of
_____________, ______, between BOMBARDIER CREDIT RECEIVABLES CORPORATION, as
purchaser (the "Purchaser"), and BOMBARDIER CAPITAL INC., as seller (the
---------
"Seller"), pursuant to the Receivables Purchase Agreement referred to below.
------
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS the Seller and the Purchaser are parties to a Receivables
Purchase Agreement dated as of January 1, 1994 (as amended or supplemented, the
"Receivables Purchase Agreement");
------------------------------
WHEREAS, pursuant to the Receivables Purchase Agreement, the Seller
wishes to designate Additional Accounts to be included as Accounts and to convey
the Receivables and related Collateral Security of such Additional Accounts,
whether now existing or hereafter created, to the Purchaser for conveyance to
the Trust (as each such term is defined in the Receivables Purchase Agreement);
and
WHEREAS the Purchaser is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller and Purchaser hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have the
-------------
meanings ascribed to them in the Receivables Purchase Agreement unless otherwise
defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
-------------
designated hereby, __________, 19__.
2. Designation of Additional Accounts. The Seller 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
A-1
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 Receivables Purchase Agreement.
3. Conveyance of Receivables. (a) The Seller does hereby sell,
-------------------------
transfer, assign, set over and otherwise convey, without recourse (except as
expressly provided in the Receivables Purchase Agreement), to the Purchaser, on
the Addition Date of 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 Seller and existing at the close of business on the
Additional Cut-Off Date and thereafter created from time to time, all monies due
or to become due and all amounts received with respect thereto and all proceeds
(including "proceeds" as defined in Section 9-306 of the UCC as in effect in the
State of Vermont and Recoveries) thereof. 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 Purchaser of any obligation of the Servicer, the Seller,
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 Dealers.
(b) In connection with such sale, the Seller 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" (as defined in
Section 9-105 of the UCC as in effect in any state where the Seller'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 Purchaser, and
to deliver a file-stamped copy of such financing statements or other evidence of
such filing to the Purchaser on or prior to the Addition Date. In addition, the
Seller 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 Purchaser. Unless requested to do so by the Seller, the
Purchaser 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 sale to the Purchaser.
The parties hereto intend that the sales of Receivables effected by this
Agreement be sales and shall so treat such sales.
(c) In connection with such sale, the Seller further agrees, at its
own expense, on or prior to the Addition Date, to indicate in its computer files
that the Receivables created in connection with the Additional Accounts
designated hereby have been sold and the Collateral Security assigned to the
Purchaser pursuant to this Assignment and sold to the Trust pursuant to the
Pooling and Servicing Agreement for the benefit of the Certificateholders and
the other Beneficiaries.
A-2
4. Acceptance by Purchaser. Subject to the satisfaction of the
-----------------------
conditions set forth in Section 6 of this Assignment, the Purchaser hereby
acknowledges its acceptance of all right, title and interest to the property,
now existing and hereafter created, conveyed to the Purchaser pursuant to
Section 3(a) of this Assignment. The Purchaser further acknowledges that, prior
to or simultaneously with the execution and delivery of this Assignment, the
Seller delivered to the Purchaser the computer file or microfiche or written
list relating to the Additional Accounts described in Section 2 of this
Assignment.
5. Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser, 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 Seller, enforceable against
the Seller 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 Seller is a corporation duly
------------------------------
organized and validly existing and in good standing under the law of the
State of Massachusetts 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 Seller 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
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 believed by the
--------------------
Seller to be adverse to the interests of the Beneficiaries were utilized in
selecting the Additional Accounts designated hereby;
(f) Insolvency. As of the Notice Date and the Addition Date, the
----------
Seller is not insolvent nor, after giving effect to the conveyance set
forth in Section 3 of this
A-3
Assignment, will it have been made insolvent, nor is it aware of any
pending insolvency;
(g) Valid Transfer. This Assignment constitutes a valid sale,
--------------
transfer and assignment to the Purchaser of all right, title and interest
of the Seller in the Receivables whether now existing or hereafter created
in the Accounts and the Collateral Security 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 and, in the case of the Receivables hereafter created
and the proceeds thereof, upon the creation thereof, the Purchaser shall
have a valid, subsisting and enforceable first priority perfected ownership
interest in such property, except for Liens permitted under Section 2.06(a)
of the Pooling and Servicing Agreement and tax and certain other statutory
liens (including liens in favor of the Pension Benefit Guaranty
Corporation);
(h) Due Authorization. The execution and delivery of this Assign-
-----------------
ment and the consummation of the transactions provided for or contemplated
by this Assignment have been duly authorized by the Seller by all necessary
corporation action on the part of the Seller.
(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 Seller 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 Seller's ability to perform its
obligations hereunder;
(j) No Violation. The execution and delivery of this Assignment by
------------
the Seller, the performance of the transactions contemplated by this
Assignment and the fulfillment of the terms hereof will not conflict with
or violate any material Requirements of Law applicable to the Seller;
(k) No Proceedings. There are no pending proceedings or, to the
--------------
best knowledge of the Seller, investigations pending or threatened against
the Seller before any Governmental Authority (l) asserting the invalidity
of this Assignment, (m) seeking to prevent the consummation of any of the
transactions contemplated by this Assignment, (n) seeking any determination
or ruling that, in the reasonable judgment of the Seller, would materially
and adversely affect the performance by the Seller of its obligations under
this Assignment, (o) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Assignment or (p) seeking to affect adversely the income tax attributes of
the Trust under the United States Federal or any State income, single
business or franchise tax systems;
A-4
(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 Agreement 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 Purchaser free and clear of
any Lien, except for Liens permitted under Section 2.06(c) of the Pooling
and Servicing 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
Seller for the conveyance of such Receivable or Collateral Security to the
Trust, the execution and delivery of this Assignment and the performance 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 Purchaser in accordance with Section 2.08 of the
Receivables Purchase 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:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by the Seller 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 2.04(b)
---------
of the Receivables Purchase Agreement applicable to the designation of the
Additional Accounts to be designated hereby shall have been satisfied; and
(c) Additional Information. The Seller shall have delivered to the
----------------------
Purchaser such information as was reasonably requested by the Purchaser to
satisfy itself as to the accuracy of the representation and warranty set
forth in Section 5(d) of this Assignment.
A-5
(d) Officers' Certificate. The Seller shall have delivered to the
---------------------
Purchaser an Officers' Certificate, dated the date of this Assignment, in
which an officer of the Seller shall state that the representations and
warranties of the Seller under Section 5 hereof are true and correct. The
Purchaser 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 Receivables Purchase Agreement is in all respects ratified and confirmed and
the Receivables Purchase 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.
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.
A-6
IN WITNESS WHEREOF, the Seller and the Purchaser 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 Purchaser
By:
__________________________________
Name:
__________________________
Title:
__________________________
By:
__________________________________
Name:
__________________________
Title:
__________________________
BOMBARDIER CAPITAL INC., as Seller
By:
__________________________________
Name:
___________________________
Title:
___________________________
By:
__________________________________
Name:
___________________________
Title:
___________________________
A-7
EXHIBIT B TO RPA
FORM OF OPINION OF COUNSEL
(As required by Section 8.02(d)(i)
----------------------------------
of the Receivables Purchase Agreement)
--------------------------------------
(a) The Amendment to the Receivables Purchase Agreement, attached
hereto as Schedule 1 (the "Amendment"), has been duly authorized, executed and
---------
delivered by the Seller and constitutes the legal, valid and binding agreement
of the Seller, enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
from time to time in effect. The enforceability of the Seller'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).
(b) The Amendment has been entered into in accordance with the terms
and provisions of Section 8.01 of the Receivables Purchase Agreement.
EXHIBIT C TO RPA
[Reserved]
C-1
EXHIBIT D-1 TO RPA
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(As required by Section 2.06 of the Receivables
Purchase Agreement referred to below)
REASSIGNMENT NO. ______ OF RECEIVABLES,
dated as of ______________, ____,
by and between BOMBARDIER CREDIT RECEIVABLES CORPORATION,
as purchaser (the "Purchaser"), and
---------
BOMBARDIER CAPITAL INC., as seller (the "Seller"),
------
pursuant to the Receivables Purchase Agreement
referred to below.
WITNESSETH
WHEREAS the Seller and the Purchaser are parties to the Receivables
Purchase Agreement dated as of January 1, 1994 (as amended or supplemented, the
"Receivable Purchase Agreement");
-----------------------------
WHEREAS, pursuant to Section 2.06 of the Receivables Purchase
Agreement, the Seller wishes to remove all Receivables from certain Accounts and
the Collateral Security in respect thereof (the "Removed Accounts") and to cause
----------------
the Purchaser 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 Purchaser or thereafter received by the Trust in respect
of such Removed Accounts, from the Purchaser to the Seller (as each such term is
defined in the Receivables Purchase Agreement); and
WHEREAS the Purchaser 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 Seller and the Purchaser 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.
"Removal Date" shall mean, with respect to the Removed Accounts
------------
designated hereby, ___________________, 199__.
2. Notice of Removed Accounts. (a) Not less than five (5) Business
--------------------------
Days prior to the Removal Date, the Seller shall furnish to the Purchaser, any
Agent, any
D-1-1
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
Seller 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 (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. 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 Receivables Purchase Agreement.
3. Conveyance of Receivables and Accounts. (a) The Purchaser does
--------------------------------------
hereby transfer, assign, set over and otherwise convey to the Seller, 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 (as defined in Section 9-306 of the UCC as in
effect in the State of Vermont) and Recoveries thereof relating thereto.
(b) If requested by the Seller, in connection with such transfer,
the Purchaser agrees to execute and deliver to the Seller 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 Purchaser. The Purchaser hereby acknowledges that,
-----------------------
prior to or simultaneously with the execution and delivery of this Reassignment,
the Seller delivered to the Purchaser the computer file or such microfiche or
written list described in Section 2(b) of this Reassignment.
5. Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as of the date of this Reassignment and
as of the Removal Date:
D-1-2
(a) Legal, Valid and Binding Obligation. This Reassignment
-----------------------------------
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller 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;
(b) No Early Amortization Event. The removal of the Accounts hereby
---------------------------
removed shall not, in the reasonable belief of the Seller, cause an Early
Amortization Event to occur or cause the Pool Balance to be less than the
Required Pool Balance;
(c) Selection Procedures. If this Removal Notice relates to the
--------------------
optional removal of Accounts from the Trust, no selection procedures
believed by the Seller to be adverse to the interests of the Beneficiaries
were utilized in selecting the Accounts to be removed;
(d) True and Complete List. If this Removal Notice relates to the
----------------------
optional removal of Accounts from the Trust, 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;
6. Condition Precedent. In addition to the conditions precedent set
-------------------
forth in Section 2.06 of the Receivables Purchase Agreement, the obligation of
the Purchaser to execute and deliver this Reassignment is subject to the Seller
having delivered on or prior to the Removal Date to the Purchaser, any Agent,
and any Enhancement Providers an Officers' Certificate certifying that (a) 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 (b) each of
the representations and warranties made by the Seller in Section 5 hereof is
true and correct as of the date of this Reassignment and as of the Removal Date.
The Purchaser 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 Receivables Purchase 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.
D-1-3
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.
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 CREDIT RECEIVABLES CORPORATION, Purchaser
By:
__________________________________
Name:
___________________________
Title:
___________________________
By:
__________________________________
Name:
___________________________
Title:
___________________________
BOMBARDIER CAPITAL INC., Seller
By:
__________________________________
Name:
___________________________
Title:
___________________________
By:
__________________________________
Name:
__________________________
Title:
__________________________
X-0-0
XXXXXXX X-0 TO RPA
FORM OF REASSIGNMENT OF RECEIVABLES IN INELIGIBLE ACCOUNTS
(As required by Section 2.07 of the Receivables
Purchase Agreement referred to below)
REASSIGNMENT NO. ______ OF RECEIVABLES,
dated as of ______________, ____, by and between
BOMBARDIER CREDIT RECEIVABLES CORPORATION,
as purchaser (the "Purchaser"), and
---------
BOMBARDIER CAPITAL INC., as seller (the "Seller"),
------
pursuant to the Receivables Purchase Agreement
referred to below.
WITNESSETH
WHEREAS the Seller and the Purchaser are parties to the Receivables
Purchase Agreement dated as of January 1, 1994 (as amended or supplemented, the
"Receivable Purchase Agreement");
-----------------------------
WHEREAS, pursuant to the Receivables Purchase Agreement, the Seller is
required to remove all Receivables from Ineligible Accounts and the Collateral
Security in respect thereof and to cause the Purchaser 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
Purchaser or thereafter received by the Trust in respect of such Ineligible
Accounts, from the Purchaser to the Seller (as each such term is defined in the
Receivables Purchase Agreement); and
WHEREAS the Purchaser is willing 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 Seller and the Purchaser 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 prior to the Removal Commencement Date, the Seller shall furnish
to the Purchaser, any Agent, any Enhancement Providers and the Rating Agencies a
written notice specifying the
D-2-1
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 Seller 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 of the Removal Notice 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 Receivables Purchase
Agreement.
3. Conveyance of Receivables and Accounts. (a) The Purchaser does
--------------------------------------
hereby transfer, assign, set over and otherwise convey to the Seller, 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
thereof 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 Seller, in connection with such transfer,
the Purchaser agrees to execute and deliver to the Seller 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
until the Removal Termination Date in respect thereof 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
Seller 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 Purchaser. The Purchaser hereby acknowledges that,
-----------------------
prior to or simultaneously with the execution and delivery of this Reassignment,
the Seller delivered to the Purchaser the computer file or such microfiche or
written list described in Section 2(b) of this Reassignment.
5. Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as of the date of this Reassignment and
as of the Removal Commencement Date:
D-2-2
(a) Legal, Valid and Binding Obligation. This Reassignment
-----------------------------------
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller 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;
(b) No Early Amortization Event. The removal of the Accounts hereby
---------------------------
removed shall not, in the reasonable belief of the Seller, cause an Early
Amortization Event to occur or cause the Pool Balance to be less than the
Required Pool Balance;; and
(c) True and Complete List. The list of Ineligible Accounts
----------------------
described in Section 2(b) of this Assignment is, as of the Removal
Commencement Date, true and complete in all material respects.
6. Condition Precedent. In addition to the conditions precedent set
-------------------
forth in Section 2.07 of the Receivables Purchase Agreement, the obligation of
the Purchaser to execute and deliver this Reassignment is subject to the Seller
having delivered on or prior to the Removal Commencement Date to the Purchaser,
any Agent, and any Enhancement Providers an Officers' Certificate certifying
that (a) 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 (b) each of the representations and warranties made by
the Seller in Section 5 hereof is true and correct as of the date of this
Reassignment and as of the Removal Commencement Date. The Purchaser 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 Receivables Purchase 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.
D-2-3
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.
D-2-4
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 CREDIT RECEIVABLES
CORPORATION, Purchaser
By:
__________________________________
Name:
___________________________
Title:
___________________________
By:
__________________________________
Name:
___________________________
Title:
___________________________
BOMBARDIER CAPITAL INC., Seller
By:
__________________________________
Name:
___________________________
Title:
___________________________
By:
__________________________________
Name:
___________________________
Title:
___________________________
D-2-5
