OH&S DRAFT
01/09/97
Exhibit 4.6
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BOMBARDIER CREDIT RECEIVABLES CORPORATION
Purchaser
and
BOMBARDIER CAPITAL INC.
Seller
AMENDMENT NUMBER 1
Dated as of January 1, 1997
to
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. Cross Reference to Definitions in the Pooling and Servicing
Agreement .................................................... 1
SECTION 1.02. Terms Confined to this Amendment.............................. 2
SECTION 1.03. Effective Dates............................................... 2
ARTICLE II
Current Amendments Relating to Contribution of Receivables
SECTION 2.01. General Amendment Relating to Contribution of Receivables..... 2
SECTION 2.02. Amendment Relating to Purchase Price.......................... 3
ARTICLE III
Amendments Relating to Representations and Warranties
SECTION 3.01. Current Amendment to Representations and Warranties of the
Seller Relating to the Seller and the Agreement............... 3
SECTION 3.02. Delayed Amendment to Representations and Warranties of the
Seller Relating to the Receivables........................... 4
SECTION 3.03. Current Amendment Relating to Removal of Accounts............ 4
SECTION 2.06. Removal of Accounts
SECTION 3.04. Delayed Amendment Relating to Removal of Receivables in
Connection with the Granting of a Participation Interest..... 5
SECTION 3.05. Delayed Amendment Relating to Removal of Receivable for
Assignment to a Third Party and Removal of Aged Receivables.. 7
ARTICLE IV
Delayed Amendments Relating to the Addition of Accounts
SECTION 4.01. Amendments Relating to the Automatic Addition of Accounts.... 7
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ARTICLE V
Delayed Amendments Relating to Liens
SECTION 5.01. Amendments Relating to Liens................................... 9
ARTICLE VI
Delayed Amendment Relating to Repurchase Agreements
SECTION 6.01. Addition of Provision Relating to Repurchase Agreements........ 9
ARTICLE VII
Current Amendment Relating to Amendments
SECTION 7.01. Amendment to Provisions Relating to Amendment of the
Receivables Purchase Agreement................................. 10
ARTICLE VIII
Current Amendments to Exhibits
SECTION 8.01. Amendments to Exhibit A........................................ 11
SECTION 8.02. Amendments to Exhibit D-1...................................... 11
ARTICLE IX
Miscellaneous
SECTION 9.01. Counterparts................................................... 12
SECTION 9.02. Headings....................................................... 12
ii
AMENDMENT NUMBER 1 dated as of January 1, 1997 (this "Amendment") to
the RECEIVABLES PURCHASE AGREEMENT dated as of January 1, 1994 (the "Original
Receivables Purchase Agreement"), each 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 (i) the Seller, in the ordinary course of its business,
finances the purchase of floorplan and wholesale inventory by dealers of certain
consumer, recreational and commercial products thereby generating certain
payment obligations and (ii) the Seller plans, in the ordinary course of its
business, to finance working capital needs and the production, manufacturing and
holding in inventory of consumer, recreational and commercial products for
dealers, distributors and manufacturers, and thereby also to generate payment
obligations; and
WHEREAS the Seller entered into the Original Receivables Purchase
Agreement for the purpose of selling certain of such existing and future payment
obligations from time to time to the Purchaser; and
WHEREAS, the Seller, the Purchaser and BANKERS TRUST COMPANY, as
Trustee (the "Trustee"), have entered into a Pooling and Servicing Agreement
dated as of January 1, 1994 and, simultaneously herewith, are entering into
Amendment Number 1 to such Pooling and Servicing Agreement (such Pooling and
Servicing Agreement as amended by such Amendment Number 1 and as the same may
hereafter from time to time be amended, supplemented or otherwise modified, the
"Pooling and Servicing Agreement"); and
WHEREAS, the Seller and the Purchaser have agreed that, from time to
time, the Seller may transfer Receivables to the Purchaser by contribution
rather than by sale and the parties wish to make provisions for such
contributions; and
WHEREAS, the Seller and the Purchaser, in accordance with Section 8.01
of the Original Receivables Purchase Agreement, by the execution and delivery of
this Amendment, hereby amend the Original Receivables Purchase Agreement to the
extent and on the terms set forth in this Amendment.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Cross Reference to Definitions in the Pooling and
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Servicing Agreement. Capitalized terms used herein and not defined herein or
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amended by the terms of this Amendment shall have the meanings set forth in the
Pooling and Servicing
Agreement, including the Amendment to Pooling and Servicing Agreement, and in
the Original Receivables Purchase Agreement.
SECTION 1.02. Terms Confined to this Amendment. Whenever used in
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this Amendment, the following words shall have the following meanings:
"Amendment" shall mean this Amendment Number 1 dated as of January 1,
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1997 to the Original Receivables Purchase Agreement, as such Amendment Number 1
may be modified, amended and supplemented hereafter.
"Amendment to Pooling and Servicing Agreement" shall mean Amendment
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Number 1, dated as of January 1, 1997, to the Original Pooling and Servicing
Agreement.
"Delayed Amendments" shall mean those amendments to the Original
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Receivables Agreement set forth herein which are specified herein as having an
Effective Date of the day following the Series 1994-1 Final Payment Date.
"Effective Date" shall mean the date on which the respective
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amendments to the Original Receivables Purchase Agreement contained in this
Amendment shall become effective which (i) with respect to those amendments set
forth in ARTICLES II, VII, VIII and Sections 3.01 and 3.03 shall be the date of
execution and delivery of this Amendment by each of the parties hereto as
specified on the signature page hereto and (ii) with respect to those amendments
set forth in all other Sections and Articles of this Amendment shall be the day
following the Series 1994-1 Final Payment Date.
"Original Receivables Purchase Agreement" shall mean the Receivables
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Purchase Agreement dated as of January 1, 1994 between Bombardier Capital Inc.,
as Seller, and Bombardier Credit Receivables Corporation, as Purchaser.
"Receivables Purchase Agreement" shall mean, the Original Receivables
------------------------------
Purchase Agreement as amended and supplemented by this Amendment and as
otherwise modified, amended and supplemented from time to time.
SECTION 1.03. Effective Dates. The Amendment to Pooling and
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Servicing Agreement sets forth the respective Effective Dates of the defined
terms added to the Pooling and Servicing Agreement or amended by the Amendment
to Pooling and Servicing Agreement. With respect to each such new or amended
definition the respective Effective Dates in the Amendment to Pooling and
Servicing Agreement shall also be the Effective Dates under this Amendment.
ARTICLE II
Current Amendments Relating to Contribution of Receivables
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SECTION 2.01. General Amendment Relating to Contribution of
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Receivables. The Original Receivables Purchase Agreement is hereby amended and
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supplement effective
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the day of execution and delivery of this Amendment by each of the parties
hereto as specified on the signature page hereto, to provide that Receivables,
in addition to being sold by the Seller to the Purchaser, may, be transferred
from the Seller to the Purchaser in the form of a capital contribution.
Notwithstanding the fact that the Original Receivables Purchase Agreement refers
only to the sale of Receivables, wherever in the Receivables Purchase Agreement
there is a reference to a sale of Receivables by the Seller to the Purchase,
such provision shall also be applicable to the transfer of Receivables in the
form of a contribution.
SECTION 2.02. Amendment Relating to Purchase Price. Section 2.01 (e)
------------------------------------
of the Original Receivables Purchase Agreement is hereby specifically amended
effective the day of execution and delivery of this Amendment by each of the
parties hereto as specified on the signature page hereto to read in its entirety
as follows:
(e) The purchase price (i) with respect to Eligible Receivables sold
hereunder will equal the principal amount of such Receivables plus accrued
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and 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. If Receivables are contributed by the Seller to the
Purchaser, the value of such contribution (i) with respect to Eligible
Receivables contributed hereunder will equal the principal amount of such
Receivables plus accrued and unpaid interest thereon on the related
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Transfer Date and (ii) with respect to Ineligible Receivables contributed
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. With respect to Receivables which are contributed by the Seller
to the Purchaser the value of the contribution shall be recorded as a
contribution to the capital of the Purchaser.
ARTICLE III
Amendments Relating to Representations and Warranties and Removal of Accounts
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and of Receivables.
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SECTION 3.01. Current Amendment to Representations and
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Warranties of the Seller Relating to the Seller and the Agreement. Section
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2.02 (a) of the Original Receivables Purchase Agreement is hereby amended,
effective the day of execution and delivery of this Amendment by each of the
parties hereto as specified on the signature page hereto, to read in its
entirety as follows:
(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 laws of the
state of its incorporation 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
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presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement.
SECTION 3.02. Delayed Amendment to Representations and Warranties of
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the Seller Relating to the Receivables. Subsections (a)(i) and (a)(v) of
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Section 2.03 of the Original Receivables Purchase Agreement are hereby amended,
effective the day after the Series 1994-1 Final Payment Date, to read in their
entirety, respectively, as follows:
(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 except for Liens
permitted under Section 2.06(a) of the Pooling and Servicing
Agreement.
(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 except to the extent of Liens permitted by Section 2.06(a) of
the Pooling and Servicing Agreement.
SECTION 3.03. Current Amendment Relating to Removal of Accounts.
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Section 2.06 of the Original Receivables Purchase Agreement is hereby amended,
effective the day after the Series 21994-1 Final Payment Date, to read in its
entirety as follows:
SECTION 2.06. Removal of Accounts. (a) On each Removal
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Termination Date on which 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, 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 Commencement Date, furnish to the Purchaser, the
Trustee, any Enhancement Providers and the Rating Agencies a
written notice (the "Removal Notice") specifying the date on
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which the Purchaser is to cease transferring newly originate
Receivables in one or more Accounts (the "Removed Accounts")
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to the Trust (the "Removal Commencement Date");
(ii) represent and warrant that the removal of any such
Account 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;
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(iii) 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;
(iv) 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;
(v) on or before the related Removal Commencement
Date, deliver to the Trustee and any Enhancement Providers
an Officers' Certificate confirming the items set forth in
clauses (ii) through (iv) 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
(vi) within five (5) Business Days after the Removal
Commencement Date, amend Schedule 1 to the Pooling and
Servicing Agreement by delivering to the Trustee a computer
file or microfiche or written list containing a true and
complete list of the Removed Accounts to be removed,
specifying for each such Account, as of the date immediately
preceding the Removal Commencement Date, its account number,
the aggregate amount of Receivables outstanding in such
Account and the aggregate outstanding principal balance
therein (the "Designated Balance");
(c) Subject to subsection (b) above, on the Removal
Termination 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 ___ hereto (a
"Reassignment").
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SECTION 3.04. Delayed Amendment Relating to Removal of Receivables in
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Connection with the Granting of a Participation Interest. The Original
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Receivables Purchase Agreement is hereby amended, effective the day after the
Series 1994-1 Final Payment Date, to add Section 2.09 which shall read in its
entirety, as follows:
SECTION 2.09 Removal of Participation Interests. (a) On each
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date on which an interest in a Receivable or in Receivables is removed
from the Trust pursuant to Section 2.12 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 the interest from the operation of this
Agreement in the manner prescribed in subsection (b) below.
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(b) To accept such offer and remove interests in Receivables in connection
with the granting of a Participation Interest, 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 Trustee, any Enhancement Providers
and the Rating Agencies a written notice (the "Participation
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Removal Notice") specifying the date on which removal of the
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participation interest (the "Removed Participation Interest")
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will occur (a "Participation Interest Removal Date");
-----------------------------------
(ii) represent and warrant that the removal of any such
interest on any Participation Interest 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;
(iii) represent and warrant that no selection procedures
reasonably believed by the Seller to be adverse to the interests
of the Beneficiaries were utilized in selecting the Accounts or
the Receivables in which the Participation Interest is to be
conveyed;
(iv) 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;
(v) 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 (ii), (iii) and (iv)
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
(vi) on or before the fifth Business Day after the
Participation Removal Date, furnish to the Trustee a computer
file, microfiche list or other list of the Removed Participation
Interests, specifying for each Removed Participation Interest,
(x) the number of the Account in which such Receivable or
Receivables existed, (y) as of the date of the Participation
Removal Notice, the aggregate amount of Principal Receivables
outstanding in the Account from which the Participation Interest
was removed and (z) as of the Participation Interest Removal
Date, the aggregate amount of Principal Receivables in such
Account (after the removal of the Removed Participation
Interests) and represent that such computer file, microfiche list
or other list describing the interests removed is true and
complete in all material respects.
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(c) Subject to satisfaction of the conditions set forth above in
subsection (b) of this Section 2.09, on the Participation Interest
Removal Date with respect to any such Removed Participation Interest,
such Removed Participation Interest shall be deemed removed from the
operation of this Agreement for all purposes and shall no longer be
included as a "Receivable" and the interest in such Account which have
not been removed shall continue as "Receivables" subject to the terms
hereof and of the Trust. After the Participation Interest 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 _____ hereto.
SECTION 3.05. Delayed Amendment Relating to Removal of Receivable for
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Assignment to a Third Party and Removal of Aged Receivables. The Original
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Receivables Purchase Agreement is hereby amended, effective the day after the
Series 1994-1 Final Payment Date, to add Section 2.10 which shall read in its
entirety, as follows:
SECTION 2.10. Removal of Receivables for Assignment to a Third
------------------------------------------------
Party and Removal of Aged Receivables. (a) On each date on which a
-------------------------------------
Receivable or Receivables are withdrawn from the Trust (the "Removal Date")
pursuant to Section 2.13 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 the Receivable or Receivables from the operation of this Agreement
in the manner prescribed in subsection (b) below:
(b) To accept such offer and remove interests in Receivables,
the Seller (or the Servicer on its behalf) shall, on behalf of the
Purchaser, pay to the Trustee on or before the Removal Date for
deposit into the Collection Account an amount at least equal to the
principal amount of such removed Receivables together with interest
accrued thereon to the Removal Date.
Upon each such removal from this Agreement, the Seller represents and
covenants that the removal will not, in the reasonable belief of the Seller,
cause an Early Amortization Event to occur.
ARTICLE IV
Delayed Amendments Relating to the Addition of Accounts
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SECTION 4.01. Amendments Relating to the Automatic Addition of
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Accounts. Subsections (ii) of Section 2.04 (b) and Section 2.04 (d) of the
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Original Receivables Purchase Agreement are hereby amended, effective the day
after the Series 1994-1 Final Payment Date, to read in their entirety,
respectively, as follows:
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Section 2.04(b)(ii) is hereby amended to read:
(ii) Such Additional Accounts shall all be Eligible Accounts and
unless the Account is being added pursuant to the Automatic Addition
Condition set forth in subsection (g) of Section 2.05 of the Pooling
and Servicing Agreement, the Rating Agency Condition shall have been
satisfied;
Section 2.04(d) is hereby amended to read:
(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, unless the Account is being added pursuant to the Automatic
Addition Condition set forth in subsection (g) of Section 2.05 of the
Pooling and Servicing Agreement, the Seller shall have given written
notice of such designation to the Rating Agencies.
ARTICLE V
Delayed Amendments Relating to Liens
------------------------------------
SECTION 5.01. Amendments Relating to Liens. Section 2.05(a) of the
----------------------------
Original Receivables Purchase Agreement is hereby amended, effective as of the
day after the Series 1994-1 Final Payment Date, to read in its entirety, as
follows:
(a) No Liens. Except for (i) the conveyances hereunder, (ii) any
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Participation Interests granted pursuant to a Participation Agreement,
(iii) the sale, assignment or transfer to a Third Party of
Receivables, the Collateral Security and other associated rights
removed from the Trust pursuant to the terms of the Pooling and
Servicing Agreement and (iv) any tax liens and 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 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.
ARTICLE VI
Delayed Amendment Relating to Repurchase Agreements
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SECTION 6.01. Addition of Provision Relating to Repurchase
--------------------------------------------
Agreements. The following new section shall, effective the day after the Series
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1994-1 Final Payment Date, be added to Article II of the Receivables Purchase
Agreement:
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SECTION 2.09. Provisions Relating to Repurchase Agreements. The
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Seller and Purchaser agree that, with respect to the Repurchase Agreements,
the rights under such Repurchase Agreements and the recoveries thereunder
which are conveyed by the Seller to the Purchaser pursuant to the terms of
this Agreement shall be those rights and recoveries which relate to
Receivables conveyed hereunder and the Collateral Security which secures
such Receivables. To the extent that any of such Repurchase Agreements also
relate to obligations due to the Seller which are not Receivables conveyed
to the Purchaser hereunder and any collateral security or other associated
rights, any rights under such Repurchase Agreement related to such non-
conveyed obligations, collateral security and other associated rights,
shall remain with the Seller and any recoveries under such Repurchase
Agreement, to the extent that such recoveries related to such non-conveyed
obligations, collateral security and other associated rights shall be the
property of the Seller and are not conveyed to the Purchaser hereunder and,
to the extent the Purchaser collects amounts under a Repurchase Agreement
which amounts relate to such non-conveyed obligations, collateral security
and other associated rights, the Purchaser shall pay such amount to the
Seller. In addition, if a Repurchase Agreement or an interest therein has
been conveyed to the Purchaser in connection with a Receivable or
Receivables conveyed hereunder and such Receivable or Receivables have been
repurchased or otherwise removed from the Trust and from this Agreement, to
the extent such Repurchase Agreement related to such removed Receivable,
provided the Receivable was removed in compliance with the terms hereof and
of the Pooling and Servicing Agreement, then the rights in any Repurchase
Agreement to the extent they related to such removed Receivables, shall
revert to the Seller. All representations and warranties of the Seller
hereunder with respect to any such Repurchase Agreements shall relate only
to the interest in such agreements which relates to the Receivables
conveyed to the Purchaser hereunder.
ARTICLE VII
Current Amendment Relating to Amendments
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SECTION 7.01. Amendment to Provisions Relating to Amendment of the
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Receivables Purchase Agreement. Section 8.01(a) of the Original Receivables
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Purchase Agreement is hereby amended, effective as of the day of execution and
delivery of this Amendment by each of the parties hereto as specified on the
signature page hereto, to read in its entirety as follows:
SECTION 8.01. Amendment. (a) This Agreement may be amended from
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time to time by the Seller and the Purchaser; provided, however, that such
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action shall not adversely affect in any material respect the interests of
any Investor Certificateholder or the 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 other matters set forth in the Registration Statement filed by the
Purchaser with the Securities and Exchange Commission relating to the
Series 1994-1 Certificates, as such Registration Statement
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was in effect on the date of issuance of the Series 1994-1 Certificates,
shall not be deemed to adversely affect the interests of any
Certificateholder or the Holder of the Variable Funding Certificate if (i)
shall be confined to an amendment of the terms of the Series 1994-1
Certificates or matters which affect only the Series 1994-1 Certificates
and does not affect any other Series of Certificates and (ii) any such
amendment is conditioned upon the delivery to the Trustee of an Opinion of
Counsel to the effect that such amendment is confined to matters affecting
the Series 1994-1 Certificates and will not cause the Registration
Statement filed with respect to any other Series to be inaccurate in any
material respect with respect to the description of the terms of this
Agreement after such amendment. Notwithstanding any other provision of
this Agreement or of the Pooling and Servicing Agreement, the Servicer and
the Purchaser may amend Section 2.06 of this Agreement, at any time, to
conform with the terms of such Section prior to the amendments contained in
Amendment Number 1 to the Receivables Purchase Agreement if Section 12.01
of the Pooling and Servicing Agreement is amended to conform with the terms
thereof prior to the amendments contained in Amendment Number 1 to the
Pooling and Servicing Agreement.
ARTICLE VIII
Current Amendments to Exhibits
------------------------------
SECTION 8.01. Amendments to Exhibit A. Exhibit A to the Original
-----------------------
Receivables Repurchase Agreement is hereby amended, effective the day of
execution and delivery of this Amendment by all of the parties hereto as
specified on the signature page hereto, in the following respects:
Provision 5(b) is hereby amended to read:
(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 its incorporation 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.
Provision 5(m) is hereby amended to read:
(m) No Liens. Each Receivable and all Collateral Security existing on
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the Addition Date has been conveyed to the Purchaser free and clear of any
Lien, 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);
SECTION 8.02. Amendments to Exhibit D-1. Exhibit D-1 to the Original
-------------------------
Receivables Repurchase Agreement is hereby amended, effective the day of
execution and
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delivery of this Amendment by all of the parties hereto as specified on the
signature page hereto, in the following respect:
Provision 3(a) is hereby amended to read:
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, any
rights under any Repurchase Agreement with respect to such Receivables and
the Collateral Security and rights 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.
SECTION 8.03. Amendments to Exhibit D-2. Exhibit D-2 to the Original
-------------------------
Receivables Agreement is hereby amended, effective as of the day after the
Series 1994-1 Final Payment Date, in the following respect:
Provision 3(a) is hereby amended to read:
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 and the
Purchaser 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 and any rights
under any Repurchase Agreement with respect to such Receivables and the
Collateral Security in respect thereof, all monies due or to become due and
all amounts received with respect thereto (including all Non-Principal
Receivables) and all proceeds thereof (as defined in Section 9-306 of the
UCC as in effect in the State of Vermont) and Recoveries 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.
SECTION 8.04. Amendment to Add Exhibit D-3. The Original Receivables
----------------------------
Purchase Agreement is hereby amended, effective the day after the Series 1994-1
Final Payment Date to add Exhibit D-3 thereto. Exhibit D-3 shall be in the form
attached to this Amendment as Exhibit A.
11
ARTICLE IX
Miscellaneous
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SECTION 9.01. 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 9.02. Headings. The headings herein are for purposes of
--------
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
12
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Amendment Number 1 to the Receivables Purchase Agreement to be duly executed by
their respective officers as of the day and year specified on the signature page
hereof.
The date of execution and delivery of this
Amendment Number 1 is January __, 1997.
BOMBARDIER CREDIT RECEIVABLES
CORPORATION, Purchaser
By:
----------------------------------
Name:
-------------------------
Title:
--------------------------
By:
----------------------------------
Name:
-------------------------
Title:
--------------------------
BOMBARDIER CAPITAL INC., Seller
By:
----------------------------------
Name:
-------------------------
Title:
--------------------------
By:
----------------------------------
Name:
-------------------------
Title:
--------------------------
13
EXHIBIT A TO AMENDMENT NUMBER 1
TO RECEIVABLES PURCHASE AGREEMENT
EXHIBIT D-4 TO RPA
FORM OF REASSIGNMENT OF REMOVED PARTICIPATION INTERESTS IN RECEIVABLES
(As required by Section 2.09 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 by Amendment Number 1
to Receivables Purchase Agreement dated as of January 1, 1997 (and as hereafter
further amended or supplemented, the "Receivable Purchase Agreement");
-----------------------------
WHEREAS, pursuant to Section 2.09 of the Receivables Purchase
Agreement, the Seller wishes to remove certain interests in the Receivables or a
portion of certain Receivables from an Account or Accounts and the related
interest in the Collateral Security and other rights in respect thereof (the
"Removed Participation Interests") and to cause the Purchaser to reconvey the
- --------------------------------
Removed Participation Interests and such Collateral Security and rights, 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
Participation Interests, 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 Removed Participation Interests, such Collateral Security and
rights 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.
D-3-1
"Participation Interest Removal Date" shall mean, with respect to the
-----------------------------------
Removed Participation Interests designated hereby, _______________,____.
2. Notice of Removed Participation Interests. (a) Not less than
-----------------------------------------
five (5) Business Days prior to the Participation Interest Removal Date, the
Seller shall furnish to the Purchaser, any Agent, any Enhancement Providers and
the Rating Agencies a written notice specifying the date on which removal of
such interests in Receivables will occur, such date being a Participation
Interest Removal Date.
(b) On or before the fifth business day after the Participation
Interest Removal Date, the Seller shall furnish to the Trustee a computer file,
microfiche list or other list of the Removed Participation Interests, specifying
for each Removed Participation Interest (x) the number of the Account in which
such receivable or Receivables existed, (y) as of the date of the Participation
Removal Notice, the aggregate amount of Principal Receivables outstanding in the
Account from which the Receivable or Receivables were to be removed and (z) as
of the Participation Interest Removal Date, the aggregate amount of Principal
Receivables in such Account (after the removal of the Removed Participation
Interests) and represent that such computer file, microfiche list or other list
of the Removed Participation Interest 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
Participation Removal Date and shall amend Schedule 1 to the Receivables
Purchase Agreement.
3. Conveyance of Removed Interests. (a) The Purchaser does hereby
-------------------------------
transfer, assign, set over and otherwise convey to the Seller, without recourse,
representation or warranty on and after the Participation Interest Removal Date,
all right, title and interest of the Trust in, to and under all Removed
Participation Interests all Collateral Security and rights in respect thereof,
any rights under any Repurchase Agreement with respect to such Removed
Participation Interests and 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 Removed
Participation Interest existing at the close of business on the Participation
Interest Removal Date and thereafter created from time to time and Collateral
Security in respect thereof to the extent of the Removed Participation Interests
evidencing the release by the Trust of its lien with respect to such Removed
Participation Interests and the interests in 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.
D-3-2
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:
(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 Removed
---------------------------
Participation Interests 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. No selection procedures believed by the
--------------------
Seller to be adverse to the interests of the Beneficiaries were utilized in
selecting the Removed Participation Interests to be removed;
6. Condition Precedent. In addition to the conditions precedent set
-------------------
forth in Section 2.09 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 Participation Interest Removal Date to the
Purchaser, any Agent, and any Enhancement Providers an Officers' Certificate
certifying that (a) as of the Participation Interest Removal Date, all
requirements set forth in Section 2.09 of the Agreement for removing such
Accounts and reconveying the Removed Participation Interests and related
interests in the Collateral Security with respect thereto, whether existing at
the close of business on the Participation Interest 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 Participation Interest 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-3-3
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:
--------------------------
D-3-4