EXECUTION COPY
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BOMBARDIER CREDIT RECEIVABLES CORPORATION
Depositor
BOMBARDIER CAPITAL INC.
Servicer
and
BANKERS TRUST COMPANY
Trustee
Bombardier Receivables Master Trust I
AMENDMENT NUMBER 1
Dated as of January 1, 1997
to
POOLING AND SERVICING AGREEMENT
Dated as of January 1, 1994
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TABLE OF CONTENTS
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ARTICLE I
Definitions
SECTION 1.01. Cross Reference to Definitions in Agreement................................. 1
SECTION 1.02. Terms Confined to this Amendment............................................ 1
SECTION 1.03. Amendment of Definitions.................................................... 2
ARTICLE II
Current Amendments to Definitions and
Agreement Concerning Charge-Offs
SECTION 2.01. Effective Date.............................................................. 2
SECTION 2.02. Amendments.................................................................. 2
SECTION 2.03. Amendment to Sections of the Definition of Eligible
Receivables................................................................. 3
ARTICLE III
Delayed Amendments to Definitions
SECTION 3.01. Effective Date.............................................................. 5
SECTION 3.02. Amendments.................................................................. 5
ARTICLE IV
Current Amendments Relating to Conveyance of Receivables
and Representations and Warranties of the Depositor
SECTION 4.01. Amendment Relating to Receivables Removed from the Trust.................... 14
SECTION 4.02. Amendment Relating to Record of Accounts.................................... 15
SECTION 4.03. Amendment Relating to Representation Concerning Security
Interests................................................................... 15
ARTICLE V
Current Amendments Relating to Addition of Accounts
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SECTION 5.01. Covenant Not to Add Other Account Receivables............................... 15
ARTICLE VI
Delayed Amendment Relating to Addition of Accounts.
SECTION 6.01. Amendment of Provisions Relating to Additional Accounts..................... 16
SECTION 6.02. Amendments Relating to Permitted Liens and Activities of
the Depositor............................................................... 20
ARTICLE VII
Current Amendment to Covenants Concerning
Activities of the Depositor
SECTION 7.01. Amendments Relating to Depositor Covenants.................................. 21
ARTICLE VIII
Delayed Amendment Relating to Discount Option
SECTION 8.01. Amendment of Provision Relating to Discount Option.......................... 22
ARTICLE IX
Current Amendment Relating to Removal of Accounts
SECTION 9.01. Amendment Relating to Removal of Accounts................................... 22
SECTION 9.02. Amendment Relating to Removal of Ineligible Accounts........................ 24
ARTICLE X
Delayed Amendments Relating to Removal of
Participation Interests and Receivables
SECTION 10.01. Amendment Relating to Removal of Participation Interests.................... 24
SECTION 10.02. Removal of Receivables for Assignment to Third Parties and
Removal of Aged Receivables................................................. 26
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ARTICLE XI
Delayed Amendment Relating to
Servicing of the Receivables
SECTION 11.01. Amendment relating to Charge-Offs........................................... 27
SECTION 11.02. Amendment Relating to Delegation of Servicing Functions..................... 27
SECTION 11.03. Amendment Relating to Representation Relating to Liens...................... 27
ARTICLE XII
Current Amendment Relating to Allocation of Collections
SECTION 12.01. Amendment Relating to the Allocation of Collections......................... 28
ARTICLE XIII
Delayed Amendments Relating to Collections
SECTION 13.01. Amendment of Provisions Relating to Collections............................. 29
SECTION 13.02. Provisions Relating to Allocation Among Series.............................. 30
ARTICLE XIV
Delayed Amendment Relating to Delegation
SECTION 14.01. Amendment Relating to Delegation............................................ 31
ARTICLE XV
Current Amendments Relating to Amendments
SECTION 15.01. Current Amendment Relating to Amendments Procedures......................... 31
ARTICLE XVI
Delayed Amendments Relating to Amendment Procedures
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SECTION 16.01. Amendment Relating to Amendment Procedures.................................. 32
SECTION 16.02. Amendment Relating to Rating Agency Condition............................... 33
ARTICLE XVII
Current Amendments Relating to Exhibits
SECTION 17.01. Amendments to Exhibit H-1................................................... 33
SECTION 17.02. Amendments to Exhibit H-2................................................... 33
ARTICLE XVIII
Delayed Amendments Relating to Exhibits
SECTION 18.01. Amendments to Exhibit A..................................................... 34
SECTION 18.02. Amendments to Exhibit C..................................................... 35
SECTION 18.03. Amendments to Exhibit G-2................................................... 35
ARTICLE XIX
Miscellaneous
SECTION 19.01. Current Amendment Relating to Place of Business and
Notice...................................................................... 36
SECTION 19.02. Counterparts................................................................ 36
SECTION 19.03. Headings.................................................................... 36
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AMENDMENT NUMBER 1 dated as of January 1, 1997 (this
"Amendment") to the POOLING AND SERVICING AGREEMENT dated as of January 1, 1994
(the "Original Agreement"), each among BOMBARDIER CREDIT RECEIVABLES
CORPORATION, a Delaware corporation, as Depositor, BOMBARDIER CAPITAL INC., a
Massachusetts corporation, as Servicer, and BANKERS TRUST COMPANY, a New York
banking corporation, as Trustee.
Section 13.01 of the Original Agreement provides that, under
the circumstances and subject to the conditions set forth therein, the Agreement
may be amended from time to time and, in accordance therewith, by the execution
and delivery of this Amendment, the parties hereby amend the Original Agreement
to the extent and on the terms set forth in this Amendment.
In consideration of the mutual agreements herein contained,
each party agrees as follows for the benefit of the other parties and for the
benefit of the Certificateholders and the other Beneficiaries to the extent
provided herein:
ARTICLE I
Definitions
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SECTION 1.01. Cross Reference to Definitions in Agreement.
Except to the extent the context clearly indicates otherwise, capitalized terms
used in this Amendment and not defined herein or amended by the terms of this
Amendment shall have the meaning assigned to such terms in the Original
Agreement together with any subsequent amendment thereto.
SECTION 1.02. Terms Confined to this Amendment. Whenever used
in this Amendment, the following words shall have the following meanings:
"Agreement" shall mean, the Original Agreement as amended and
supplemented by this Amendment and as otherwise modified, amended and
supplemented from time to time.
"Amendment" shall mean this Amendment Number 1 dated as of
January 1, 1997 to the Original Agreement, as such Amendment Number 1 may be
modified, amended and supplemented hereafter.
"Delayed Amendments" shall mean those amendments to the
Original Agreement set forth herein which are specified herein as having an
Effective Date on the day after the Series 1994-1 Final Payment Date.
"Effective Date" shall mean the date on which the respective
amendments to the Original Agreement contained in this Amendment shall become
effective which (i) with respect to those amendments set forth in Articles II,
IV, V, VII, IX, XII, XV, XVII and XIX shall be on 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 Articles of this Amendment shall be on the date after the Series 1994-1
Final Payment Date.
"Original Agreement" shall mean the Pooling and Servicing
Agreement dated as of January 1, 1994 among Bombardier Credit Receivables
Corporation, as Depositor, Bombardier Capital Inc., as Servicer, and Bankers
Trust Company, as Trustee.
"Series 1994-1 Certificates" shall mean those Certificates
issued pursuant to the Supplement to the Agreement designated as the Series
1994-1 Supplement dated as of January 1, 1994, as modified, amended and
supplemented from time to time.
"Series 1994-1 Final Payment Date" shall mean the date on
which the full amount of the principal amount of the Series 1994-1 Certificates
and all interest accrued thereon have been paid in full.
SECTION 1.03. Amendment of Definitions. Certain defined terms
set forth in the Original Agreement are amended by this Amendment, and the
Original Agreement is also amended hereby by the addition of certain new defined
terms. Those new and amended defined terms with respect to which the Effective
Date is the date of execution and delivery of this Amendment by each of the
parties hereto as specified on the signature page hereto are contained in
Article II hereof and those new and amended defined terms with respect to which
the Effective Date is on the date after the Series 1994-1 Final Payment Date are
contained in Article III hereof.
ARTICLE II
Current Amendments to Definitions and Agreement Concerning Charge-Offs
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SECTION 2.01. Effective Date. Definitions set forth in the
Original Agreement and amended by this Amendment which have an Effective Date
which is the date of execution and delivery of this Amendment by each of the
parties hereto as specified on the signature page hereto are set forth in this
Article II.
SECTION 2.02. Amendments. The following definitions contained
in the Original Agreement are hereby amended to read as follows and those
definitions which are contained in this Section 2.02 but which are not contained
in the Original Agreement are hereby added to Section 1.01 of the Agreement in
appropriate alphabetical sequence, in each case, as of the Effective Date
applicable to this Article as stated in Section 2.01 above.
"Account" shall mean each Initial Account and, from and after
the related Addition Date, each Additional Account. The Term "Account" shall
not, after the applicable Removal Termination Date, apply to any Removed
Accounts or Ineligible Accounts reassigned or assigned to the Depositor or the
Servicer in accordance with the terms of this Agreement provided that Accounts
which are being removed under the provisions of Section 2.07 or Section 2.08
shall continue to be included as Accounts until the Removal Termination Date
with respect to such Accounts.
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"Designated Balance" shall have the meaning specified in
Section 2.07(b)(vii) hereof.
"Origination Period" shall mean a four-month period commencing
June 1, October 1 or February 1.
"Rating Agency Condition" shall mean, with respect to any
action, if the terms of the Agreement or any Supplement set forth a specific
time in advance of the effectiveness of the action that notice must be given to
the Rating Agencies, notice shall have been given in accordance with such
requirement or if no advance notice is required or no specific time is stated
for such notice, the Rating Agencies have received written notice of the
proposed action at least 10 days prior to the proposed effective date of such
action and either (i) as of the proposed effective date of the action, no Rating
Agency shall have notified the Depositor, the Servicer or the Trustee in writing
that such action will result in a reduction or withdrawal of any rating of any
outstanding Series or Class with respect to which it is a Rating Agency, or (ii)
each such Rating Agency shall have confirmed in writing to the Depositor, the
Servicer or the Trustee that such action will not result in a reduction or
withdrawal of the rating of any outstanding Series or Class with respect to
which it is a Rating Agency.
"Removal Commencement Date" shall have the meaning specified
in Section 2.07(b) or 2.08 (a) hereof.
"Removal Termination Date" shall have the meaning specified in
Section 2.07(b) or 2.08(b) hereof.
"Repurchase Agreement" shall mean any repurchase agreement (or
similar recourse arrangement) between BCI or an Affiliate of BCI 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 (including as supplemented, amended, modified or replaced from time
to time) relating to Eligible Products which have been financed with advances
giving rise to Receivables transferred to the Trust.
"SAU" shall mean, with respect to a Receivable, that if such
Receivable was originally secured by a security interest in an Eligible Product,
such Eligible Product has been sold and such Receivable has not been paid in
full.
"Variable Funding Amount" shall mean, on any date of
determination, the excess of the Pool Balance over the Required Pool Balance at
the close of business on the preceding day.
SECTION 2.03. Amendment to Sections of the Definition of
Eligible Receivables. The definition of Eligible Receivable contained in the
Original Agreement is hereby amended effective on the date of execution and
delivery of this Amendment by each of the parties hereto as specified on the
signature page hereto by revising subsections (b) and (c) of such definition to
read in their entirety as follows:
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(b) which arose under an Account that at the time such
Receivable was transferred to the Trust was an Eligible Account;
(c) which is owned by BCI at the time of sale or contribution
by BCI to the Depositor;
In addition, the definition of Eligible Receivable is hereby
amended effective on the date of execution and delivery of this Amendment by
each of the parties hereto as specified on the signature page hereto by revising
the proviso at the end of such definition to read in its entirety as follows:
provided, however, that "Eligible Receivables" shall not include any
Domestic Inventory Receivables (i) that have not been paid in full
within 491 days following the origination thereof, subject, however, to
the limitation that, for the period from January 23, 1997 through May
31, 1998, with respect to Domestic Inventory Receivables included in
the Pool Balance on January 23, 1997, no more than 10% of the aggregate
principal balance of such Domestic Inventory Receivables will be
excluded from Eligible Receivables pursuant to this proviso, and
subject further to the limitation that, with respect to each
Origination Period commencing on or after June 1, 1998, no more than
10% of the aggregate principal balance of Domestic Inventory
Receivables originated and transferred to the Trust during the four
month period commencing 16 months prior to each Origination Period will
be excluded from Eligible Receivables pursuant to this proviso; (ii) in
the case of a Domestic Inventory Receivable which is due upon sale of
the related Eligible Product and not pursuant to a scheduled payment
program, with respect to which the related Eligible Products have been
sold by the related Obligor and the principal outstanding thereunder
has not been paid by the related Obligor within twenty-one (21) days
following the date of sale, (iii) in the case of a Domestic Inventory
Receivable that is to be repaid pursuant to a scheduled payment
program, with respect to which any principal payment of such
Receivable has not been paid in full within twenty-one (21) days
following its due date or (iv) with respect to which interest
payments (aggregating at least $150 with respect to Receivables under
the same Account) are more than one hundred and twenty (120) days
delinquent.
SECTION 2.04. Agreement Concerning Charge-Offs. The Servicer
and the Depositor hereby, in accordance with the terms of Section 3.01(a) of the
Original Agreement, having given the Rating Agencies ten (10) days' prior
written notice and the Rating Agency Condition with respect to the following
election having been satisfied, elect not to take the actions to charge-off
Receivables as set forth in clauses (x), (y) and (z) of the first sentence of
Section 3.01(a) of the Original Agreement. The Servicer and the Depositor hereby
elect and agree that, from the date of execution and delivery of this Amendment,
until the Amendments set forth in Article III hereof become effective, the
Servicer shall, in accordance with the provisions of Section 3.01(a), charge-off
Receivables in the following categories: (x) all Receivables (other than (i)
Receivables that were designated as Ineligible Receivables at the time of
transfer to the Trust and (ii) Receivables which became Ineligible Receivables
because they were not paid in full within 491 days after the origination
thereof) which the Servicer has determined to be uncollectible, (y) all
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Receivables that have been SAU for more than 60 days and (z) all Receivables in
an Account in which interest in the amount of $150 or more has been delinquent
for 90 days or more.
ARTICLE III
Delayed Amendments to Definitions
---------------------------------
SECTION 3.01. Effective Date. The Effective Date of the
amendments to certain definitions contained in the Original Agreement as set
forth in this Article III and the new definitions added to the Agreement by this
Article III shall be the day after the Series 1994-1 Final Payment Date. Terms
contained in the Original Agreement which are amended by this Article III shall,
prior to such Effective Date, continue to have the meanings assigned thereto in
the Original Agreement.
SECTION 3.02. Amendments. The following definitions contained
in the Original Agreement are hereby amended to read as follows and those
definitions which are contained in this Section 3.02 but which are not contained
in the Original Agreement are hereby added to Section 1.01 of the Agreement in
appropriate alphabetical sequence, in each case, as of the Effective Date
applicable to this Article as stated in Section 3.01 above.
"Additional Accounts" shall mean (i) each individual financing
account established or acquired by BCI or an Affiliate of BCI in the ordinary
course of business with an Obligor pursuant to an Inventory Security Agreement
and (ii) each credit account established or acquired in the ordinary course of
business by BCI or an Affiliate of BCI with a dealer to finance such dealer's
working capital needs or with a manufacturer or distributor for the purpose of
financing the production, manufacturing or inventory of Eligible Products, and
which account, in each case, is designated pursuant to Section 2.05(a) or (b)
hereof to be included as an Account and is identified in the computer file or
microfiche or written list delivered to the Trustee by the Depositor pursuant to
Section 2.01 or Section 2.05(d) hereof, as applicable.
"Asset-Based Receivables" shall mean Receivables arising from
extensions of credit made by BCI or Affiliates of BCI or Receivables arising
from extensions of credit made by other lenders and acquired by BCI or an
Affiliate of BCI which extension of credit was made to a dealer to finance such
dealer's working capital needs or to a manufacturer or distributor to finance
manufacturing, production or inventory of consumer, recreational or commercial
products.
"Available Retained Collections" shall mean, with respect to
any Deposit Date, the sum of (a) the Available Retained Non-Principal
Collections for such Deposit Date and (b) the Available Retained Principal
Collections for such Deposit Date; provided, however, that the Available
Retained Collections shall be zero for any Collection Period with respect to
which the Available Subordinated Amount is zero for the Distribution Date
occurring in such Collection Period.
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"Available Retained Non-Principal Collections" shall mean,
with respect to any Deposit Date, an amount equal to the product of (a) the
excess of (i) the Retained Percentage for such Deposit Date over (ii) the Excess
Retained Percentage for such Deposit Date multiplied by (b) Non-Principal
Collections for such Deposit Date.
"Available Retained Principal Collections" shall mean, with
respect to any Deposit Date, an amount equal to the result obtained by
multiplying (a) the excess of (i) the Retained Percentage for such Deposit Date
over (ii) the Excess Retained Percentage for such Deposit Date by (b) Principal
Collections for such Deposit Date.
"Collateral Security" shall mean, with respect to any
Receivable and subject to the terms of the Receivables Purchase Agreement, the
security interest, granted by or on behalf of the related Obligor to secure
payment of such Receivable which, (i) with respect to Domestic Inventory
Receivables shall include a first priority perfected security interest in the
Eligible Product financed and (ii) with respect to Asset-Based Receivables shall
include a first priority perfected security interest, in accounts, goods, work
in process, raw materials, component parts or other rights or assets of the
Obligor. If a Participation Interest has been created in respect of a Receivable
or Receivables in an Account and such interest has been removed from the Trust,
upon the removal of such Participation Interest, that portion of such
security interest that is allocable to such Participation Interest shall not be
part of the "Collateral Security" and with respect to any Receivable which is
removed from the Trust for any reason, the security interest with respect to
such Receivable shall no longer be part of the Collateral Security held by the
Trust.
"Collections" shall mean, without duplication, all payments by
or on behalf of Obligors received by the Servicer in respect of the Receivables,
in the form of cash, checks, wire transfers or any other form of payment as
provided in such Obligors' Inventory Security Agreements or otherwise agreed
upon between the applicable Obligors and BCI or its Affiliates in connection
with the extension of credit in the ordinary course of their respective
businesses; provided, however, that Collections shall not include amounts, if
any, received by the Servicer, but which represent amounts due to another lender
as a result of the granting of a Participation Interest. Collections of
Non-Principal Receivables shall include all Recoveries. Collections shall also
include amounts received by BCRC in connection with the sale, assignment or
transfer of Receivables to a third-party lender pursuant to Section 2.12.
Collections of Insurance Proceeds with respect to Receivables which are not
Defaulted Receivables shall be deemed to be Collections of Principal
Receivables.
"Defaulted Amount," with respect to any Collection Period, or
any other period of determination, shall mean an amount (which shall not be less
than zero) equal to (a) the sum for all the Accounts included in the Pool of the
amount of Principal Receivables which became Defaulted Receivables during the
immediately preceding Collection Period minus (b) the full amount of any such
Defaulted Receivables which are subject to reassignment or assignment to the
Depositor or the Servicer in accordance with the terms of this Agreement;
provided, however, that, if an Insolvency Event occurs with respect to the
Depositor or if a Liquidation Event has occurred, the amounts of such Defaulted
Receivables which are subject to reassignment or assignment to the Depositor
shall not be included in clause (b) and, if an Insolvency Event occurs with
respect to the Servicer or if a
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Liquidation Event has occurred, the amount of such Defaulted Receivables which
are subject to assignment to the Servicer shall not be included in clause (b).
"Defaulted Receivables" shall mean, for any Collection Period,
without duplication, (a) all Receivables (other than (i) Receivables that were
designated as Ineligible Receivables at the time of transfer to the Trust and
(ii) Receivables which became Ineligible Receivables because they were not paid
in full within 491 days after the origination thereof) in an Account which are
charged off by the Servicer as uncollectible in respect of the immediately
preceding Collection Period, (b) all Receivables that have been SAU for more
than 60 days, (c) all Receivables in an Account in which interest in the amount
of $150 or more has been delinquent for 90 days or more and (d) all Receivables
which were Eligible Receivables when transferred to the Trust on the initial
Closing Date or the related Addition Date or on their respective Transfer Date,
which arose in an Account that thereafter became an Ineligible Account and which
were not Eligible Receivables for any six consecutive Distribution Dates
(inclusive of the Distribution Date on which such determination is being made)
after such Account became an Ineligible Account. Receivables will not be
Defaulted Receivables merely because they become Ineligible Receivables.
"Deposit Date" shall mean each day on which the Servicer
receives Collections.
"Domestic Inventory Receivables" shall mean Receivables
arising from extensions of credit and advances made to dealers of consumer,
recreational and commercial products which dealers are located in the United
States of America (including its territories and possessions).
"Eligible Account" shall mean (i) each individual financing
account with an Obligor established by BCI or by an Affiliate of BCI, or
established by a third party (but which satisfies BCI's customary underwriting
standards) and acquired by BCI or acquired by an Affiliate of BCI, with respect
to Eligible Products pursuant to an Inventory Security Agreement in the ordinary
course of business, and (ii) any individual line of credit or financing
agreement extended to an Obligor by BCI or an Affiliate of BCI or by a third
party (but which satisfies BCI's customary underwriting standards) and acquired
by BCI or an Affiliate of BCI, for the purpose of financing working capital,
manufacturing, production, or inventory of Eligible Products and secured by
assets of such Obligor and which, in each case, as of the date of determination
thereof (a) relates to an Obligor which is an Eligible Obligor and (b) is in
existence and, after its establishment or acquisition by BCI (or an Affiliate of
BCI), is maintained and serviced by BCI (subject to BCI's rights to delegate or
assign certain servicing functions in accordance with the terms of this
Agreement); it being understood that an Eligible Account may at the time of
transfer to the Trust and/or from time to time thereafter contain no
Receivables. For purposes of this definition, acquisition of an Account includes
acquisition of such Account as a result of an acquisition of another entity or
by merger or consolidation with another entity. An Account which otherwise
qualifies as an Eligible Account may be an Eligible Account notwithstanding the
fact that any Receivables therein may have been assigned to a third party or
that a Participation Interest exists in such Account or any receivable therein.
With respect to any Initial Account, if any required consent to the assignment
to BCRC of the related Repurchase Agreement (as defined in the Receivables
Purchase Agreement) shall not have been obtained on or prior to February 15,
1994 such account shall as of such date be deemed an Ineligible Account. This
definition of Eligible
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Account may be amended from time to time without complying with the terms of
Section 13.01 of this Agreement, provided that, as the only conditions to the
effectiveness of such amendment (i) BCI delivers to the Trustee a certificate of
an authorized officer stating that, in the reasonable belief of BCI, such
amendment will not, at the date of such amendment adversely affect, in a
material way, the interest of the Certificateholders and (ii) the Rating Agency
Condition is satisfied.
"Eligible Obligor" shall mean an Obligor that, as of the date
of determination thereof, (a) in the case of Domestic Inventory Receivables, is
a dealer located in the United States of America (including its territories and
possessions), (b) in the case of Asset-Based Receivables is a dealer,
distributor or manufacturer that is located in the United States of America
(including its territories and possessions) and (c) in the case of Domestic
Inventory Receivables and Asset-Based Receivables, has not been identified by
the Servicer as being the subject of any voluntary or involuntary bankruptcy,
insolvency, liquidation or receivership proceedings.
"Eligible Products" shall mean any consumer, recreational and
commercial products, including, but not limited to, marine equipment (boats,
motors and trailers), snowmobiles, snow-grooming equipment, personal watercraft,
recreational vehicles, manufactured housing, motorcycles, lawn and garden
equipment, horse trailers, personal computers and consumer electronics and
appliances and spares and parts relating to such products.
"Eligible Receivable" shall mean each Receivable:
(a) which was (x) originated by BCI in the ordinary
course of business or (y) originated by an Affiliate of BCI in
the ordinary course of business or (z) which was acquired by
BCI or an Affiliate of BCI in the ordinary course of business
and upon satisfying BCI's customary underwriting standards;
for purposes of this definition, acquisition of a Receivable
includes acquisition of such Receivable as a result of an
acquisition of another entity or by merger or consolidation
with another entity;
(b) which arose under an Account that at the time
such Receivable was transferred to the Trust was an Eligible
Account;
(c) which is owned by BCI at the time of sale or
contribution by BCI to the Depositor;
(d) which represents the obligation of an Obligor to
repay an advance made to or on behalf of such Obligor (or
credit extended to or on behalf of such Obligor) to finance
(i) in the case of Domestic Inventory Receivables, the
acquisition of Eligible Products, or (ii) in the case of
Asset-Based Receivables, working capital or the production,
manufacturing or inventory of Eligible Products;
(e) which, (i) in the case of Domestic Inventory
Receivables, at the time of creation and, except in the case
of Receivables that are payable in accordance with a repayment
schedule providing for repayment in full regardless of whether
the
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related Eligible Products have been sold and with respect
to which the related Eligible Products have been sold, at the
time of transfer to the Trust, is secured by, inter alia, a
first priority perfected security interest in the Eligible
Products relating thereto and (ii) in the case of Asset-Based
Receivables, at the time of transfer to the Trust is secured
by, inter alia, a first priority perfected security interest,
in accounts, goods, work in process, raw materials, component
parts or other rights or assets of the Obligor;
(f) which is not unenforceable as a result of any
violation of Requirements of Law applicable thereto and, (i)
in the case of Domestic Inventory Receivables, the related
Inventory Security Agreement is not unenforceable as a result
of any violation of Requirements of Law applicable to any
party thereto and (ii) in the case of Asset-Based Receivables,
the related loan agreement pursuant to which the Account was
created is not unenforceable as a result of any violation of
Requirements of Law applicable to any party thereto;
(g) with respect to which all consents, licenses,
approvals or authorizations of, or registrations or
declarations with, any Governmental Authority required to be
obtained, effected or given by BCI or an Affiliate of BCI or
the Depositor in connection with the creation or acquisition
of such Receivable or, if applicable, the transfer thereof to
the Depositor and the Trust or, (i) in the case of Domestic
Inventory Receivables, the performance by BCI or an Affiliate
of BCI of the related Inventory Security Agreement or (ii) in
the case of Asset-Based Receivables, the performance by BCI or
an Affiliate of BCI of the related loan agreement pursuant to
which the Account was created, have been duly obtained,
effected or given and are in full force and effect;
(h) as to which at all times following the transfer
of such Receivable to the Trust, the Trust will have good and
marketable title thereto free and clear of all Liens arising
prior to the transfer or arising at any time other than (i)
Liens permitted by this Agreement and (ii) tax and certain
other statutory liens (including liens in favor of the Pension
Benefit Guaranty Corporation) which may arise thereafter and
which relate to Affiliates of the Depositor;
(i) which has been the subject of a valid transfer
and assignment from the Depositor to the Trust of all the
Depositor's right, title and interest therein (including, with
certain exceptions, any proceeds thereof);
(j) which will at all times be the legal, valid,
binding and assignable payment obligation of the Obligor
relating thereto, enforceable against such Obligor in
accordance with its terms (as such terms may be modified or
revised from time to time with the consent of the Servicer),
except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws, now or hereafter in effect, affecting the
enforcement of creditors' rights in general and except as
such enforceability may be limited by general principles of
9
equity (whether considered in a suit at law or in equity) or
the availability of equitable remedies;
(k) which at the time of transfer to the Trust is
enforceable against the Obligor to the extent of the full
principal amount of such Receivable, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws,
now or hereafter in effect, affecting the enforcement of
creditors' rights in general and except as such enforceability
may be limited by general principles of equity (whether
considered in a suit at law or in equity) or the availability
of equitable remedies;
(l) as to which, at the time of transfer of such
Receivable to the Trust, BCI or an Affiliate of BCI and the
Depositor have satisfied all their respective obligations
under this Agreement with respect to such Receivable required
to be satisfied at such time;
(m) as to which, at the time of transfer of such
Receivable to the Trust, neither BCI or an Affiliate of BCI
nor the Depositor has taken any action (or failed to take any
action required under this Agreement or the Receivables
Purchase Agreement) which would impair the rights of the Trust
or the Certificateholders therein; and
(n) which constitutes "chattel paper" or an "account"
as defined in Article 9 of the UCC as then in effect in the
State of Vermont;
provided, however, that "Eligible Receivables" shall not include any
Domestic Inventory Receivables that have not been paid in full within
491 days following the origination thereof, subject, however, to the
limitation that, for the period from January 23, 1997 through May 31,
1998, with respect to Domestic Inventory Receivables included in the
Pool Balance on January 23, 1997, no more than 10% of the aggregate
principal balance of such Domestic Inventory Receivables will be
excluded from Eligible Receivables pursuant to this proviso, and
subject further to the limitation that, with respect to each
Origination Period commencing on or after June 1, 1998, no more than
10% of the aggregate principal balance of Domestic Inventory
Receivables originated and transferred to the Trust during the four
month period commencing 16 months prior to each Origination Period will
be excluded from Eligible Receivables pursuant to this proviso;
provided further, that this definition of Eligible Receivable may be
amended from time to time without complying with the terms of
Section 13.01 of this Agreement provided that, as the only conditions
to the effectiveness of such amendment (i) BCI delivers to the Trustee
a certificate of an authorized officer stating that, in the reasonable
belief of BCI, such amendment will not, at the date of such amendment
adversely affect, in a material way, the interest of the
Certificateholders and (ii) the Rating Agency Condition is satisfied.
10
"Excess Retained Percentage" shall mean, for any date of
determination, (x) the Retained Percentage for such date minus (y) the
percentage equivalent of a fraction, the numerator of which is equal to the Pool
Available Subordinated Amount as of the end of the immediately preceding day and
the denominator of which is the Pool Balance as of the end of the immediately
preceding day.
"Financing Guidelines" shall mean the written policies and
procedures of BCI and its Affiliates, as such policies and procedures may be
amended from time to time, (a) relating to the operation of BCI's floorplan
financing business, including the written policies and procedures for
determining the interest rate charged to Obligors, the other terms and
conditions relating to BCI's wholesale financing accounts, the creditworthiness
of Obligors and the extension of credit to Obligors, (b) relating to the
extension of credit by BCI and Affiliates of BCI to dealers, distributors and
manufacturers in connection with Asset-Based Receivables and (c) relating to the
maintenance of accounts and collection of receivables.
"Insurance Proceeds" with respect to an Account shall mean any
amounts received by the Servicer pursuant to any policy of insurance which is
required to be paid to BCI or an Affiliate of BCI pursuant to an Inventory
Security Agreement.
"Inventory Security Agreement" shall mean, collectively, the
agreement or group of related agreements between and among a lender (provided
that, if such lender was not BCI or an affiliate of BCI at the time the
agreement was originated, the lender's rights thereunder have been acquired by
BCI or an Affiliate of BCI), the Obligor with respect thereto and, in certain
cases, the related manufacturer or distributor, pursuant to which (a) the lender
agrees to extend credit to such Obligor to finance Eligible Products, (b) such
Obligor grants to the lender a security interest in the specific Eligible
Products financed, and (c) such Obligor agrees to repay advances made under such
agreement either (i) at the time of sale of the related Eligible Products to
which such advance relates or (ii) in accordance with a repayment schedule
providing for repayment in full of the related advance; for purposes of this
definition, references to the "lender" may include multiple lenders in the case
of an Account or receivables therein which are subject to a Participation
Agreement or in the case of Receivables which have been removed from the Trust
pursuant to Section 2.12 for purposes of the sale, assignment or transfer to a
third-party lender provided that one of the lenders is BCI or an Affiliate of
BCI or the rights of one of the lenders has been acquired by BCI or an Affiliate
of BCI.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, participation interest, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever, including any
conditional sale or other title retention agreement and any financing lease
having substantially the same economic effect as any of the foregoing; provided,
however, that (i) any lien, encumbrance or interest created by this Agreement,
any Supplement or any Participation Agreement and (ii) any security interest in
any Collateral Security which security interest is subordinate to the security
interest securing the Receivables and with respect to which the Servicer has
given notice to each Rating Agency describing such subordinate security interest
and the dollar amounts secured thereby, shall not be deemed to constitute a
Lien.
11
"Liquidation Event" shall mean any event specified in Section
9.01(b) or Section 9.01(c) of this Agreement occurs with respect to BCI or the
Depositor.
"Obligor" shall mean a Person that (i) is engaged generally in
the business of purchasing Eligible Products from a manufacturer, importer or
distributor of Eligible Products for sale in the ordinary course of business or
(ii) is a manufacturer, importer or distributor of Eligible Products.
"Participation Agreement" shall mean an agreement pursuant to
which BCI or an Affiliate of BCI or BCRC, as applicable, conveys to a lender an
undivided interest in the right to receive payment of a Receivable or
Receivables in an Account, and in the related Collateral Security and any other
associated rights which interest is pari passu (other than nonsubordinated
interest strips and fees) with the undivided interest retained by BCI or such
Affiliate of BCI or BCRC, as applicable, except that BCI or such Affiliate of
BCI will retain the servicing rights with respect to such credit arrangement;
provided that the form of such agreement pursuant to which such undivided
interest has been or will be conveyed to a lender has been submitted to the
Rating Agencies and the Depositor, the Servicer or the Trustee shall have
received a letter from each Rating Agency confirming that use of an agreement in
such form shall not result in a reduction or withdrawal of any rating of any
Series or Class with respect to which it is a Rating Agency. An agreement
pursuant to which an interest described above in this definition is conveyed may
be entered into prior to the designation of the account in which the
Participation Interest exists as an Account to be included in the Trust so long
as the condition referred to above with respect to the Rating Agencies regarding
the form of such agreement is satisfied prior to the designation of the Account
to be included in the Trust. A Participation Agreement may be entered into with
respect to an Account which is included in the Trust provided the Participation
Interest is removed from the Trust in accordance with the terms of Section 2.11
hereof.
"Participation Interest" shall mean an undivided interest
created pursuant to a Participation Agreement and held by a lender and not
conveyed to the Trust or removed from the Trust and conveyed to such lender;
such Participation Interest may include an interest in the receivable, in the
collateral securing such receivable and other rights associated with such
receivable; the undivided interest in such receivable conveyed to or remaining
in the Trust shall constitute a Receivable to the extent of the undivided
interest held by the Trust.
"Participation Interest Removal Date" shall have the meaning
specified in Section 2.11 of this Agreement.
"Participation Removal Notice" shall have the meaning
specified in Section 2.11 of this Agreement.
"Receivables" shall mean, with respect to an Account, all
amounts shown on the Servicer's records as amounts payable by the related
Obligor from time to time in respect of advances made to such Obligor to finance
the acquisition of Eligible Products or to finance working capital needs of such
Obligor or the production, manufacturing or inventory of Eligible Products
together, if applicable, with the rights under the group of writings evidencing
such amounts and the
12
security interest created in connection therewith. Receivables which become
Defaulted Receivables shall not be shown on the Servicer's records as amounts
payable (and will cease to be included as Receivables) on the day on which they
become Defaulted Receivables and Receivables and interests therein and the
rights and security interests created in connection therewith removed from the
Trust shall cease to be Receivables on the removal date. Receivables which BCI
is unable to transfer to the Depositor pursuant to the Receivables Purchase
Agreement or which the Depositor is unable to transfer to the Trust as provided
in Section 2.06(b) hereof and receivables which arise in Removed Accounts or in
Ineligible Accounts from and after the related Removal Commencement Date shall
not be included in calculating the amount of Receivables. If a Participation
Interest exists in respect of such Account or if a Participation Interest exists
in respect of a specific obligation or obligations within an Account, the
amounts so payable by the related Obligor that are allocable to such
Participation Interest shall not be part of the "Receivables" in respect of such
Account.
"Recoveries" on any Distribution Date shall mean all amounts
received, including Insurance Proceeds and any proceeds resulting from
Repurchase Agreements (or similar arrangements) between BCI or an Affiliate of
BCI and manufacturers, importers and distributors of Eligible Products or other
parties, by the Servicer during the Collection Period immediately preceding such
Distribution Date with respect to Receivables which have previously become
Defaulted Receivables. If a Participation Interest exists in respect of any of
such Defaulted Receivables, any amounts described in this definition of
"Recoveries" which are allocable to such Participation Interest shall not be
included as "Recoveries."
"Removed Participation Interest" shall have the meaning
specified in Section 2.11 of this Agreement.
"Required Pool Balance" shall mean, the amount calculated as
of the end of any Business Day equal to (i) the sum of the amounts for each
Series obtained by multiplying the required investor percentage for such Series
by the adjusted invested amount for such Series, plus (ii) the Pool Available
Subordinated Amount at the end of such Business Day, minus (iii) any amount on
deposit in any reserve fund at such time; provided that, the amount on deposit
in a reserve fund for any Series which will be subtracted in calculating the
Required Pool Balance may be calculated as provided in the Supplement pursuant
to which such reserve fund was created.
"Retained Percentage" for any date of determination shall mean
(i) with respect to Non-Principal Collections, 100% minus the sum of (a) the
aggregate of the floating allocation percentages for each outstanding Series of
Investor Certificates on such date of determination and (b) the Variable Funding
Percentage for such date of determination and (ii) with respect to Principal
Collections, 100% minus the sum of (a) the aggregate of the floating allocation
percentages on such date of determination for each outstanding Series of
Investor Certificates in their respective Revolving Periods, (b) the aggregate
of the principal allocation percentage on such date of determination for each
outstanding Series of Investor Certificates that are not in their respective
Revolving Periods and (c) the Variable Funding Percentage for such date of
determination, but in any case the Retained Percentage shall not be less than
0%.
13
"Variable Funding Percentage" shall mean, for any date of
determination, a percentage (which percentage shall never be less than 0% nor
more than 100%) equal to the Variable Funding Amount for such day divided by the
Pool Balance as of the close of business on the immediately preceding day;
provided, however, that for purposes of allocating Principal Collections
following the occurrence of a Liquidation Event, the Variable Funding Percentage
will be calculated on the basis of the Variable Funding Amount as of the last
day immediately preceding the date of such Liquidation Event; and provided
further, that following a Liquidation Event, the relative interest of the
Variable Funding Certificate in further allocations of Non-Principal Collections
will not be less than the relative interest thereof as of the Liquidation Event.
ARTICLE IV
Current Amendments Relating to Conveyance of Receivables
--------------------------------------------------------
and Representations and Warranties of the Depositor
---------------------------------------------------
SECTION 4.01. Amendment Relating to Receivables Removed from
the Trust. The second sentence of Section 2.01 of the Original Agreement is
hereby amended effective on the date 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:
As of each Business Day prior to the earlier of (i) an
Appointment Date and (ii) the Trust Termination Date, on which
Receivables are created in the Eligible Accounts (a "Transfer
Date"), the Depositor does hereby sell, transfer, assign, set
over and otherwise convey, without recourse (except as
expressly provided herein), to the Trust for the benefit of
the Certificateholders and the other Beneficiaries, all of its
right, title and interest in, to and under the Receivables in
each such Eligible Account (other than any (x) Receivables
created in a Removed Account or Ineligible Account after the
applicable Removal Commencement Date as provided in Section
2.07 or 2.08 or (y) Participation Interests in Receivables in
such Eligible Account that have been transferred to third
parties) and all Collateral Security with respect thereto
owned by the Depositor at the close of business on such
Transfer Date and not theretofore conveyed to the Trust, all
monies due or to become due and all amounts received with
respect thereto and all proceeds thereof (including
"proceeds", as defined in Section 9-306 of the UCC as in
effect in the State of Vermont, and Recoveries).
SECTION 4.02. Amendment Relating to Record of Accounts.
Section 2.03 (i) of the Original Agreement is hereby amended effective on the
date 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:
(i) Record of Accounts. As of the first Closing Date, in the
case of the Initial Accounts, as of the applicable Addition Date, in
the case of the Additional Accounts, and, as of the applicable Removal
Termination Date, in the case of Removed Accounts and
14
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 or the applicable Additional
Cut-Off Date 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 or such Removal Termination Date, as
the case may be.
SECTION 4.03. Amendment Relating to Representation Concerning
Security Interests. Section 2.04 (a) (vii) of the Original Agreement is hereby
amended effective on the date 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:
(vii) Each Domestic Inventory Receivable included in the Pool
Balance is and will be secured by a first priority perfected
security interest in the related Eligible Product and each
Asset-Based Receivable is at the time of transfer to the Trust
secured by a first priority perfected security interest in
accounts, goods, work in process, raw materials, component
parts or other rights or assets of the Obligor;
ARTICLE V
Current Amendments Relating to Addition of Accounts
---------------------------------------------------
SECTION 5.01. Covenant Not to Add Other Account Receivables.
Section 2.05 of the Original Agreement is hereby amended effective on the date
of execution and delivery of this Amendment by each of the parties hereto as
specified on the signature page hereto to delete all references to Other Account
Receivables from such Section 2.05, and BCRC hereby covenants and agrees, that,
not withstanding any provision of the Original Agreement, it shall not include
any Other Account Receivables in any additions made to the Trust pursuant to
Section 2.05 of the Agreement or in any other manner.
SECTION 5.02. Amendment Relating to Contribution of
Receivables to the Depositor. In Section 2.05 (a) of the Original Agreement, the
provision which reads "the Depositor shall be required to purchase from BCI
under the Receivables Purchase Agreement (but BCI shall have no obligation to
sell to BCRC)" is hereby amended effective on the date of execution and delivery
of this Amendment by each of the parties hereto as specified on the signature
page hereto to read as follows:
the Depositor shall be required to purchase or acquire from
BCI under the Receivables Purchase Agreement (but BCI shall
have no obligation to sell or contribute to BCRC).
15
ARTICLE VI
Delayed Amendment Relating to Addition of Accounts.
SECTION 6.01. Amendment of Provisions Relating to Additional
Accounts. Section 2.05 of the Original Agreement is hereby amended, effective on
the day after the Series 1994-1 Final Payment Date, to read, in its entirety, as
follows:
SECTION 2.05. Addition of Accounts. (a) If, as of any date,
(i) the Pool Balance calculated as of the close of business on the
preceding day is less than the Required Pool Balance also calculated as
of the close of business on such preceding day, or (ii) the aggregate
interest in the Pool represented by the BCRC Certificate and any
Variable Funding Certificate held by BCRC is less than 2% of the
aggregate amount of Receivables included in the Pool at the close of
business on the preceding day, then, unless a Liquidation Event has
occurred, on or prior to the tenth Business Day following the date on
which (i) or (ii) occurred (the "Addition Date"), the Depositor shall
be required to purchase or acquire from BCI under the Receivables
Purchase Agreement (but BCI shall have no obligation to sell or
contribute to BCRC), and shall designate (pursuant to an Addition
Notice delivered pursuant to Section 2.05(c) hereof) and transfer to
the Trust, the Receivables (and any related Collateral Security) of
additional Eligible Accounts of the Depositor to be included as
Accounts in a sufficient amount such that, after giving effect to such
addition: (x) the Pool Balance as of the close of business on the
Addition Date is at least equal to the Required Pool Balance and (y)
the aggregate amount of Receivables included in the Pool represented by
the BCRC Certificate and any Variable Funding Certificate held by BCRC,
is equal to at least 2% of the aggregate amount of Receivables included
in the Pool and (z) the Pool shall consist of the same type of
Receivables as shall have been included in the Pool prior to such
addition (i.e., Domestic Inventory Receivables, Asset-Based Receivables
or both, as the case may be); provided, however, that so long as the
Rating Agency Condition has been satisfied with respect to the addition
of Asset-Based Receivables to the Trust as set forth in subsection
2.05(i) below (whether in connection with the addition of Accounts at
such time or in connection with a previous addition of Accounts to the
Trust), then, at the option of the Depositor and BCI, Additional
Accounts containing Asset-Based Receivables may be added in
satisfaction of such requirement even if the only Accounts previously
included in the Trust are Accounts containing Domestic Inventory
Receivables; and provided, further, that for purposes of clause (ii)
and sub-clause (y) of this subsection (a), the Variable Funding
Certificate shall be deemed to be "held" by BCRC even though the
registered Holder thereof is BCI, as pledgee, so long as BCI has not
exercised its remedies in respect thereof. The Depositor shall satisfy
the conditions specified in subsection (d) of this Section 2.05 in
designating such Additional Accounts and conveying the related
Receivables to the Trust. The failure of the Depositor to transfer
Receivables to the Trust as provided in this subsection (a) solely as a
result of the unavailability of a sufficient amount of Eligible
Receivables or subsequent to a Liquidation Event shall not constitute a
breach of this Agreement; provided, however, that any such failure will
nevertheless result in the occurrence of an Early
16
Amortization Event described in Section 9.01(a) hereof if the
conditions set forth therein shall occur.
(b) The Depositor may from time to time, at its sole
discretion, subject to the conditions specified in subsection (d)
below, voluntarily designate additional Eligible Accounts to be
included as Accounts and transfer to the Trust the Receivables (and the
related Collateral Security) of such Additional Accounts.
(c) Receivables and Collateral Security from Additional
Accounts conveyed to the Trust pursuant to subsection (b) above shall
be sold to the Trust effective on a date (the "Addition Date")
specified in an Addition Notice on or before the tenth Business Day but
not more than the 30th day prior to the related Addition Date (the
"Notice Date").
(d) The Depositor shall be permitted to convey to the Trust
the Receivables and all Collateral Security related thereto in any
Additional Accounts designated by the Depositor as such pursuant to
Section 2.05(a) or (b) hereof only upon satisfaction of each of the
following conditions on or prior to the related Addition Date:
(i) the Depositor shall have provided the Trustee,
any Agent, the Rating Agencies and any Enhancement Providers
with an Addition Notice;
(ii) such Additional Accounts shall all be Eligible
Accounts and, with respect to Additional Accounts designated
pursuant to subsection (b) above, unless the Account is being
added pursuant to the Automatic Addition Condition set forth
in subsection (g) of this Section 2.05, the Rating Agency
Condition shall have been satisfied;
(iii) the Depositor shall have delivered to the
Trustee a duly executed written assignment in substantially
the form of Exhibit B hereto (the "Assignment") and the
computer file or microfiche or written list required to be
delivered pursuant to Section 2.01 hereof;
(iv) the Depositor shall, to the extent required by
Section 4.03 hereof, have deposited in the Collection Account
all Collections with respect to such Additional Accounts since
the Additional Cut-Off Date;
(v)(A) no selection procedures reasonably believed by
the Depositor to be adverse to the interests of the
Beneficiaries or any Enhancement Provider were used in
selecting such Additional Accounts; (B) the list of Additional
Accounts delivered pursuant to clause (iii) above is true and
correct in all material respects as of the Additional Cut-Off
Date and (C) as of each of the Notice Date and the Addition
Date, neither BCI nor the Depositor were insolvent nor will
either of them have been made insolvent by such transfer nor
are either of them aware of either pending insolvency;
17
(vi) the addition of the Receivables arising in such
Additional Accounts shall not, in the reasonable belief of the
Depositor, result in the occurrence of an Early Amortization
Event;
(vii) in the case of an addition of Receivables
pursuant to subsection (a) above, the additional Receivables
are either Domestic Inventory Receivables, Asset-Based
Receivables or both; and
(viii) the Depositor shall have delivered to the
Trustee and any Enhancement Providers a certificate of a Vice
President or more senior officer confirming the items set
forth in sub-clauses (ii) through (vi) above; and
(e) The Depositor hereby represents and warrants as of the
applicable Addition Date as to the matters set forth in clause (v) of
subsection (d) of this Section 2.05. Upon discovery by the Depositor,
the Servicer, any Agent, the Trustee or any Enhancement Providers of a
breach of the foregoing representations and warranties, the party
discovering the breach shall give prompt written notice to the other
parties, to any Agent and to any Enhancement Providers.
(f) Unless the Account is being added pursuant to the
Automatic Addition Condition set forth in subsection (g) of this
Section 2.05, on or before each Addition Date, the Depositor shall have
delivered to the Trustee and any Enhancement Providers, an Opinion of
Counsel, substantially in the form of Exhibit G-2 hereto, with respect
to the Receivables in the Additional Accounts conveyed hereunder on
such Addition Date.
(g) The provisions set forth in this subsection (g) are herein
referred to as the "Automatic Addition Condition." If the conditions
set forth in this subsection (g) are satisfied, the Depositor may
voluntarily designate additional Eligible Accounts to be included as
Accounts and transfer to the Trust the Receivables (and the related
Collateral Security) of such Additional Accounts in accordance with
Section 2.05(d) but without satisfaction of the Rating Agency Condition
specified in clause (ii) of such Section 2.05(d) and without delivery
of the Opinion of Counsel described in subsection (f) above. The
Automatic Addition Condition will be satisfied if each of the following
conditions are met:
(i) such Accounts do not contain Asset-Based
Receivables unless Asset-Based Receivables have been
previously added to the Trust after having met the Rating
Agency Condition, (ii) during the calendar quarter in which
such addition occurs, the number of new Accounts which have
been added (after taking into account such addition) will not
exceed 5% of the number of all Accounts at the end of the
preceding calendar quarter and the aggregate dollar amount of
Principal Receivables in such new Accounts added pursuant to
the Automatic Addition Condition during such calendar quarter
shall not exceed 5% of the Pool Balance at the end of the
preceding calendar quarter, and (iii) during the 12
consecutive calendar months ending with the calendar month in
which the addition is made and including such addition, the
number of such new Accounts does not exceed 20% of
18
the number of all Accounts at the beginning of such 12 month
period and the aggregate dollar amount of Principal
Receivables in such new Accounts added pursuant to the
Automatic Addition Condition during such 12-month period shall
not exceed 20% of the Pool Balance at the beginning of such
12-month period. When determining the amount of Accounts and
Principal Receivables which have been added to the Trust for
purposes of the tests set forth in (ii) and (iii) of this
paragraph, only those Accounts and the Receivables therein
which have been added pursuant to the Automatic Addition
Condition will be taken into consideration. Additions made
under other provisions of the Pooling and Servicing Agreement
will not be included.
(h) If Accounts are added to the Trust pursuant to the
Automatic Addition Condition, the Depositor shall, to the extent the
addition of such Accounts have not been covered by such opinions
previously delivered to the Trustee, every three months deliver to the
Trustee an Opinion of Counsel substantially in the form of Exhibit G-2
hereto with respect to the Receivables in the Additional Accounts
conveyed on the applicable Addition Dates pursuant to the Automatic
Addition Condition since the time of delivery of the immediately
preceding Opinion of Counsel delivered under this Section 2.05
provided, that if such opinion has previously been delivered, the
Opinion of Counsel required periodically hereby, may be a bring-down
opinion rather than in the form of Exhibit G-2; and provided further,
that, unless the Rating Agency Condition is satisfied with respect to
the delivery of such opinions by in-house Counsel, such Opinion of
Counsel shall be from outside counsel.
(i) The Rating Agency Condition, as described in this
subsection (i), shall be met prior to the first transfer of any
Asset-Based Receivables to the Trust. For such purposes the Rating
Agency Condition shall be satisfied only if the Depositor shall provide
to each Rating Agency prior written notice of the Depositor's intention
to transfer Asset-Based Receivables to the Trust, and the Trustee shall
receive a letter from each Rating Agency confirming that the inclusion
of Accounts containing Asset-Based Receivables will not result in the
reduction or withdrawal of the rating of any Series or Class of
Certificates then outstanding.
SECTION 6.02. Amendments Relating to Permitted Liens and
Activities of the Depositor. Section 2.06(a), 2.06(c) and Section 2.06(f)(i)(B)
of the Original Agreement are hereby amended, effective on the day after the
Series 1994-1 Final Payment Date, to read, in their entirely, as follows:
SECTION 2.06(a) is amended to read:
(a) No Liens. Except for (i) the conveyances hereunder, (ii)
as provided in subsection (c) or (d) of Section 6.03 hereof, (iii) any
Participation Interest granted pursuant to a Participation Agreement,
(iv) the sale, assignment or transfer to the Depositor of Receivables,
the Collateral Security and other associated rights removed from the
Trust in accordance with the provisions of Section 2.12 of this
Agreement and (v) tax and certain other statutory liens (including
liens in favor of the Pension Benefit Guaranty Corporation),
19
the Depositor 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, or the Depositor's rights,
remedies, powers or privileges with respect to the Receivables under
the Receivables Purchase Agreement, or the Variable Funding Interest,
the Variable Funding Certificate, the Retained Interest, the BCRC
Certificate or any Supplemental Certificate and the Depositor shall
defend the right, title and interest of the Trust in, to and under the
Receivables and the Collateral Security, whether now existing or
hereafter created, and such rights, remedies, powers and privileges,
against all claims of third parties claiming through or under the
Depositor. In addition, the Depositor shall maintain such records and
take such other actions as may be necessary or desirable to preserve
the Trust's perfected security interest in the Receivables.
Section 2.06 (c) is amended to read:
(c) Delivery of Collections. In the event that the Depositor,
BCI or any Affiliate thereof receives payments in respect of
Receivables included in any Account, the Depositor and BCI agree to pay
or cause to be paid to the Servicer or any Successor Servicer all
payments received thereby in respect of such Receivables as soon as
practicable after receipt thereof, but in no event later than two (2)
Business Days after the receipt by the Depositor or BCI. Receipt by
BCI's Affiliates of payments in respect of Asset-Based Receivables will
be deemed to be received by BCI upon receipt by such Affiliates.
Section 2.06(f)(i)(B) is amended to read:
(f) Activities of the Depositor. The Depositor will not engage
in any business or activity of any kind or enter into any transaction
other than:
(i) the businesses, activities and transactions
contemplated and authorized by this Agreement or the Related
Documents, including without limitation:
(B) acquiring, selling, financing, holding,
assigning, pledging and otherwise dealing with
receivables arising out of the sale of consumer,
recreational and commercial products and the
financing of working capital and the financing of the
production, manufacturing and carrying in inventory
of consumer, recreational and commercial products;
20
ARTICLE VII
Current Amendment to Covenants Concerning Activities of the Depositor
SECTION 7.01. Amendments Relating to Depositor Covenants.
Section 2.06(g) and Section 2.06(j) of the Original Agreement are hereby
amended, effective on the date of execution and delivery of this Amendment as
stated on the signature page hereto, to read in their entirety, as follows:
SECTION 2.06(g) is amended to read:
(g) Indebtedness. Other than the BCRC Note (as defined in the
Receivables Purchase Agreement) the Depositor will not create, incur or
assume any indebtedness or issue any securities (except pursuant to
Section 2.06 (j)) or sell or transfer any receivables to a trust or
other Person which issues securities in respect of any such
receivables, unless (i) any such indebtedness or securities have no
recourse to any assets of the Depositor other than the specified assets
to which such indebtedness or securities relate and (ii) the Depositor
has given the Rating Agencies at least ten (10) days' prior notice and
the Rating Agency Condition shall have been satisfied in connection
therewith prior to the incurrence or issuance thereof.
SECTION 2.06(j) is amended to read:
(j) Stock; Merger. The Depositor will not (i) sell any shares
of any class of its capital stock to any Person (other than Bombardier
Corporation or BCI) or enter into any transaction of merger or
consolidation unless (A) the surviving Person of such merger or
consolidation assumes all of the Depositor's obligations under this
Agreement, (B) the Depositor shall have given the Rating Agencies and
the Trustee at least ten (10) days' prior written notice and the Rating
Agency Condition shall have been satisfied with respect to such
transaction and (C) such merger or consolidation does not conflict with
any provisions of the Certificate of Incorporation of the Depositor, or
(ii) terminate, liquidate or dissolve itself (or suffer any
termination, liquidation or dissolution), or (iii) acquire or be
acquired by any Person (other than as permitted pursuant to clause (i)
above), or (iv) otherwise make (or suffer) any material change in the
organization of or method of conducting its business.
ARTICLE VIII
Delayed Amendment Relating to Discount Option
SECTION 8.01. Amendment of Provision Relating to Discount
Option. Section 2.10 of the Original Agreement is hereby amended, effective on
the day after the Series 1994-1 Final Payment Date, to read in its entirety, as
follows:
21
SECTION 2.10. Discount Option. The Depositor may, at any time,
upon ten (10) days' prior written notice to the Servicer, the Trustee
and each Rating Agency, designate a fixed percentage of the amount of
Collections in respect of Receivables arising in the Accounts on and
after the date of such designation that otherwise would be treated as
Principal Collections to be treated as Non-Principal Collections. Such
designation will become effective on the date specified therein only if
(i) the Depositor shall have delivered to the Trustee an Officers'
Certificate, dated the date of such designation, to the effect that the
Depositor reasonably believes that such designation will not result in
an Early Amortization Event or have a materially adverse effect on the
Investor Certificateholders and (ii) the Rating Agency Condition has
been satisfied.
ARTICLE IX
Current Amendment Relating to Removal of Accounts
SECTION 9.01. Amendment Relating to Removal of Accounts.
Section 2.07 of the Original Agreement is hereby amended effective on the date
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 2.07. Removal of Accounts. (a) The Depositor shall
have the right to cease transferring newly originated Receivables to
specific Accounts and thereby, when the principal balance in such
Accounts is reduced to zero, to remove such Accounts from the Trust in
the manner prescribed in subsection (b) of this Section 2.07.
(b) To commence the process of the removal of an Account and
to cease transferring newly originated receivables in such Account to
the Trust, the Depositor (or the Servicer on its behalf) shall take the
following actions and make the following determinations:
(i) not less than five (5) Business Days prior to
the date on which the transfer of newly originated receivables
will cease (the "Removal Commencement Date") furnish to the
Trustee, any Enhancement Providers and the Rating Agencies a
written notice (the "Removal Notice") specifying the date of
the Removal Commencement Date and the Accounts to be removed
(the "Removed Accounts");
(ii) from and after such Removal Commencement Date,
cease to transfer to the Trust any and all receivables arising
in such Removed Accounts;
(iii) represent and warrant that the removal of any
such Account shall not, in the reasonable belief of the
Depositor (or the Servicer on behalf of the
22
Depositor), cause an Early Amortization Event to occur or
cause the Pool Balance to be less than the Required Pool
Balance;
(iv) represent and warrant that no selection
procedures reasonably believed by the Depositor (or the
Servicer on behalf of the Depositor) to be adverse to the
interests of the Beneficiaries were utilized in selecting the
Removed 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 Commencement
Date, deliver to the Trustee and any Enhancement Providers an
Officers' Certificate confirming the items set forth in
clauses (iii) through (v) above, the Trustee may conclusively
rely on such Officers' Certificate and shall have no duty to
make inquiries with regard to the matters set forth therein
and shall incur no liability in so relying; and
(vii) within five (5) Business Days after the
Removal Commencement Date, amend Schedule 1 hereto by
delivering to the Trustee a computer file or microfiche or
written list containing a true and complete list of the
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");
(viii) from and after the Removal Commencement Date
with respect to any Removed Account to be removed, allocate
Principal Collections in respect of such Removed Account first
to the oldest outstanding principal balance of such Removed
Account, until the Designated Balance in such Removed Account
is reduced to zero (the date on which any such Designated
Balance is so reduced to zero, the "Removal Termination
Date"); and
(ix) on each Business Day from and after the Removal
Commencement Date with respect to any Removed Account to be
removed, until the related Removal Termination Date, allocate
Non-Principal Collections in respect of such Removed Account
(A) to the Trust, based on the ratio of (1) the amount of
Principal Receivables in such Removed Account on such Business
Day that were previously sold to the Trust to (2) the total
amount of Principal Receivables in such Removed Account on
such Business Day and (B) to the Depositor, the remainder of
Non-Principal Collections in respect of such Ineligible
Account on such Business Day.
23
(c) Subject to subsection (b) of this Section 2.07, on the
Removal Termination Date with respect to any Removed Account, such
Account shall be deemed removed from the Trust for all purposes. After
the Removal Termination Date and upon the written request of the
Servicer, the Trustee shall deliver to the Depositor a reassignment in
substantially the form of Exhibit H-1 hereto (the "Reassignment").
SECTION 9.02. Amendment Relating to Removal of Ineligible
Accounts. Subsection 2.08(b)(ii) of Section 2.08 of the Original Agreement is
hereby amended effective on the date 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:
(ii) from and after such Removal Commencement Date,
cease to transfer to the Trust any and all Receivables
arising in such Ineligible Accounts and allocate all
Collections with respect to such Receivables as provided in
subsection (iv) and (v) of this Section 2.08(b);
ARTICLE X
Delayed Amendments Relating to Removal of Participation Interests
and Receivables
SECTION 10.01. Amendment Relating to Removal of Participation
Interests. The Original Agreement is hereby amended, effective on the day after
the Series 1994-1 Final Payment Date, to add Section 2.11 which shall read in
its entirety, as follows:
SECTION 2.11. Removal of Participation Interests. (a) Subject
to the terms and conditions of this Section 2.11, the Depositor shall
have the right to require the reassignment to it or its designee of an
undivided interest in designated Receivables (and the related
Collateral Security and other rights associated therewith) from the
Trust for the purpose of conveying such undivided interest in the form
of a Participation Interest (a "Removed Participation Interest") to a
third party.
(b) To effect a reassignment of a Participation Interest from
the Trust, the Depositor (or the Servicer on its behalf) shall take the
following actions and make the following determinations:
(i) not less than five (5) Business Days prior to the
date on which removal of the Removed Participation Interest
will occur (a "Participation Interest Removal Date"), furnish
to the Trustee, any Enhancement Providers and the Rating
Agencies a written notice (the "Participation Removal Notice")
specifying the Participation Interest Removal Date;
(ii) represent and warrant that the removal of any
such Participation Interest on any Participation Interest
Removal Date shall not, in the reasonable belief of the
24
Depositor (or the Servicer on behalf of the Depositor), cause
an Early Amortization Event to occur or cause the Pool Balance
to be less than the Required Pool Balance;
(iii) represent and warrant that no selection
procedures reasonably believed by the Depositor (or the
Servicer on behalf of the Depositor) to be adverse to the
interests of the Beneficiaries were utilized in selecting the
Accounts or Receivables from which the Participation Interest
is 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 Participation Interest
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 Interest 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 exists or with respect to which
such Removed Participation Interest has been granted, (y) as
of the date of the Participation Removal Notice, the aggregate
amount of Principal Receivables outstanding in the Account
from which the Removed Participation Interest is 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 describing the interests removed is true and complete in
all material respects.
(c) Subject to satisfaction of the conditions set forth above
in subsection (b) of this Section 2.11, on the Participation Interest
Removal Date with respect to any such Removed Participation Interest,
the Trustee, without further action, shall be deemed to sell, transfer,
assign, set over and otherwise convey to the Depositor or its designee,
effective as of the Participation Interest Removal Date, the Removed
Participation Interest, and such Removed Participation Interest shall
be deemed removed from the Trust for all purposes and shall no longer
be included as a "Receivable" and the undivided interest in such
Account which has not been removed shall continue as "Receivables."
SECTION 10.02. Removal of Receivables for Assignment to Third
Parties and Removal of Aged Receivables. The Original Agreement is hereby
amended, effective on the day after the Series 1994-1 Final Payment Date, to add
Section 2.12 which shall read in its entirety, as follows:
25
SECTION 2.12. Removal of Receivables for Assignment to Third
Parties and Removal of Aged Receivables. (a) Subject to the conditions
set forth in Section (b), and, when applicable, Section (c) below, the
Depositor, shall have the right to remove Receivables (and the related
Collateral Security and other rights associated therewith) from the
Trust if such Receivables either:
(i) are removed for the purpose of selling, assigning
or transferring directly or indirectly such Receivables to a
lender other than BCRC, BCI or an Affiliate of BCI (a
"third-party lender"); provided that such transfer to the
third-party lender is for a purchase price at least equal to
the outstanding principal balance of the Receivables removed
plus the accrued interest thereon to the date of removal; or
(ii) are Receivables which (A) at any time during the
period from January 23, 1997 through May 31, 1998, are
Domestic Inventory Receivables which were included in the Pool
Balance on January 23, 1997 that continue to be unpaid in full
450 or more days following the origination thereof, provided
that the aggregate amount of such Domestic Inventory
Receivables that may be so removed and reassigned under this
clause shall not exceed 10% of the aggregate principal balance
of Domestic Inventory Receivables included in the Pool Balance
on January 23, 1997 and (B) at any time during any Origination
Period commencing after May 31, 1998, are Domestic Inventory
Receivables originated and transferred to the Trust during the
four month period commencing 16 months prior to the
commencement of such Origination Period and which continue to
be unpaid in full 450 or more days following the origination
thereof, provided that the aggregate amount of such Domestic
Inventory Receivables that may be so removed and reassigned
under this clause shall not exceed 10% of the aggregate
principal balance of Domestic Inventory Receivables originated
and transferred to the Trust during such four month period
commencing 16 months prior to the commencement of such
Origination Period.
(b) Each removal of Receivables pursuant to this Section 2.12
shall be subject to the condition that, on or prior to the date such
Receivables are removed, the Servicer shall transfer or cause to be
transferred to the Trust in immediately available funds for deposit
into the Collection Account an amount equal to at least the outstanding
principal balance of the Receivables removed plus accrued interest
thereon to the date such Receivables are removed from the Trust for
application as Collections in accordance with the terms of this
Agreement and each Supplement.
(c) The Depositor hereby represents and covenants, that it
will not remove Receivables under the terms of this Section 2.12 if, in
the reasonable belief of the Depositor, such removal would cause an
Early Amortization Event to occur.
(d) The Depositor's right to remove aged Receivables as
described in clause (a)(ii) above shall not impose on the Trust any
obligation to hold such Receivables for the purpose of allowing the
Depositor to repurchase such Receivables.
26
ARTICLE XI
Delayed Amendment Relating to Servicing of the Receivables
SECTION 11.01. Amendment relating to Charge-Offs. The first
sentence of Section 3.01(a) of the Original Agreement is hereby amended
effective on the day after the Series 1994-1 Final Payment Date, to read in its
entirety, as follows:
SECTION 3.01(a) Acceptance of Appointment and Other Matters
Relating to the Servicer. The Servicer shall (or, to the extent
applicable, shall cause its Affiliates to) service and administer the
Receivables, collect payments due under the Receivables and charge-off
as uncollectible Receivables, all in accordance with the Inventory
Security Agreements (as amended from time to time) relating to the
Accounts (if applicable), the Financing Guidelines and otherwise in
accordance with procedures that are customary and usual in the industry
for servicing receivables comparable to the Receivables, except insofar
as any failure to so comply or perform would not materially and
adversely affect the rights of the Trust or any of the Beneficiaries.
SECTION 11.02. Amendment Relating to Delegation of Servicing
Functions. Section 3.01(a)(v) and all of the following provisions through the
end of such Section 3.01(a) are hereby amended, effective on the day after the
Series 1994-1 Final Payment Date, to read as follows:
(v) subject to the provisions of Section 8.07 hereof,
to delegate all or a portion of its servicing, collection,
enforcement and administrative duties hereunder with respect
to the Accounts and the Receivables to any Person who agrees
to conduct such duties in accordance with the Financing
Guidelines and this Agreement.
The Trustee shall furnish the Servicer with any powers of
attorney and other documents reasonably necessary or
appropriate to enable the Servicer to carry out its servicing
and administrative duties hereunder.
SECTION 11.03. Amendment Relating to Representation Relating
to Liens. Section 3.03 (a) (xi) is hereby amended, effective on the day after
the Series 1994-1 Final Payment Date, to read, in its entirety, as follows:
(xi) Negative Pledge. Except for the conveyances
under the Receivables Purchase Agreement and under this
Agreement and encumbrances, sales, assignments, transfers,
interests and Liens permitted by Section 2.06 (a) of this
Agreement, the Servicer 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 sold and
assigned to the Trust, whether now existing or hereafter
created, or any interest therein, and the Servicer shall
defend the rights, title and interest of the Trust in, to and
under any Receivable sold and assigned to the Trust,
27
whether now existing or hereafter created, against all
claims of third parties claiming through or under the
Depositor or the Servicer.
ARTICLE XII
Current Amendment Relating to Allocation of Collections
SECTION 12.01. Amendment Relating to the Allocation of
Collections. Section 4.03 of the Original Agreement is hereby amended effective
on the date of execution and delivery of this Amendment as set forth on the
signature page hereto by the addition of a paragraph which shall be the
concluding paragraph of such Section 4.03 and shall follow subsection (d) in the
Original Agreement and shall, upon and after the Effective Date of the amendment
set forth in Article XIII of this Amendment, follow subsection (e) of such
Section 4.03. The paragraph being added shall read in its entirety as follows:
Notwithstanding any other provision of this Agreement or of
any Supplement:
(i) with respect to the allocation of Principal
Collections among the Series and the Variable Funding
Certificate for any Collection Period, if the sum of (i) the
sum of the floating allocation percentages for all Series in
their respective revolving periods, (ii) the sum of the
principal allocation percentages for all Series in an
amortization, accumulation or early amortization period and
(iii) the Variable Funding Percentage exceeds 100%, then
Principal Collections for such Collection Period will be
allocated among the Series and the Variable Funding
Certificate on the basis of such allocation percentages after
the pro rata reduction of such percentages so that the sum
thereof equals 100% for such period; and
(ii) with respect to the allocation of Non-Principal
Collections among the Series and the Variable Funding
Certificate for any Collection Period, if the sum of (i) the
sum of the floating allocation percentages for all series and
(ii) the Variable Funding Percentage exceeds 100%, then
Non-Principal Collections for such Collection Period will be
allocated among the Series and the Variable Funding
Certificate on the basis of such allocation percentages after
the pro rata reduction of such percentages so that the sum
thereof equals 100% for such period.
28
ARTICLE XIII
Delayed Amendments Relating to Collections
SECTION 13.01. Amendment of Provisions Relating to
Collections. In addition to the current amendment to Section 4.03 of the
Original Agreement set forth in Article XII of this Amendment, such Section 4.03
is hereby further amended, effective on the day after the Series 1994-1 Final
Payment Date, by replacing subsections 4.03(a), (c) and (d) in their entirety
and inserting a new subsection 4.03(e), in each case to read as follows:
(a) Except as otherwise provided below or as expressly
provided in any Supplement with respect to the Collections allocated to
the related Series, the Servicer shall deposit Collections into the
Collection Account as promptly as possible after receipt of such
Collections, but in no event later than the second Business Day after
such receipt.
(c) Subject to Section 4.04 hereof, but notwithstanding
anything else in this Agreement to the contrary, with respect to any
Collection Period, whether the Servicer is required to make deposits of
Collections pursuant to subsections (a) or (b) above, (i) the Servicer
will be required to deposit Collections into the Collection Account
only up to the aggregate amount of Collections required to be deposited
into all Series Accounts or, without duplication, distributed on the
related Distribution Date to all Investor Certificateholders or to each
Enhancement Provider pursuant to the terms of any Supplement or
Enhancement Agreement and (ii) if at any time prior to such
Distribution Date the amount of collections deposited in the Collection
Account exceeds the amount required to be deposited pursuant to clause
(i) above, the Servicer will be permitted to withdraw the excess from
the Collection Account.
(d) Collections of Non-Principal Receivables and Principal
Receivables, Defaulted Receivables and Miscellaneous Payments will be
allocated to each Series of Investor Certificates from and after the
Series Cut-Off Date as specified in the related Supplement, and amounts
so allocated to any Series will not, except as specified in the related
Supplements, be available to the Investor Certificateholders of any
other Series. Allocations of Principal Collections and Non-Principal
Collections among the Investors' Interest of each Series of Investor
Certificates, the Variable Funding Interest and the Retained Interest
and among the Classes in any Series shall be set forth in this
Agreement and in the related Supplement or Supplements.
(e) Throughout the existence of the Trust, unless otherwise
stated in any Supplement, the Servicer shall (x) allocate to the Holder
of the Variable Funding Certificate on each Deposit Date an amount
equal to the product of the Variable Funding Percentage and the amount
of Collections on such Deposit Date and (y) allocate to the Holder(s)
of the BCRC Certificate and any Supplemental Certificate(s), pro rata
in accordance with the respective percentage interests thereof, on each
Deposit Date an amount equal to the Excess Retained Percentage and the
amount of Collections on such Deposit Date. Notwithstanding anything in
this Agreement to the contrary, unless otherwise stated in any
Supplement, the
29
Servicer need not deposit this amount or any other amounts so allocated
to the Variable Funding Certificate, the BCRC Certificate or any
Supplemental Certificate(s) pursuant to any Supplement into the
Collection Account and shall pay, or be deemed to pay, such amounts as
collected to the Holders of the Variable Funding Certificate, the BCRC
Certificate and any Supplemental Certificate(s). The payments to be
made to the Holders of the Variable Funding Certificate, the BCRC
Certificate or any Supplemental Certificate(s) pursuant to this
subsection 4.03(e) do not apply to deposits into the Collection Account
or other amounts that do not represent Collections, including
Miscellaneous Payments, payment of the purchase price for the Investor
Certificates pursuant to Section 2.03 of the Agreement and proceeds
from the sale, disposition or liquidation of Receivables pursuant to
Section 9.02 or Section 12.02 of the Agreement.
SECTION 13.02. Provisions Relating to Allocation Among Series.
The Original Agreement is hereby amended, effective on the day after the Series
1994-1 Final Payment Date, to add Section 4.05 thereto which Section 4.05 shall
read in its entirety as follows:
SECTION 4.05. Allocations When Available Retained Collections
Are Insufficient. If for any Distribution Date the Available Retained
Collections on deposit in the Collection Account are not sufficient to
satisfy the needs of all of the Series, the amount available shall be
allocated as provided in this Section.
(a) If for any Distribution Date, the sum of the required
subordination draw amounts for all Series outstanding exceeds the
Available Retained Collections on deposit in the Collection Account on
such Distribution Date, then such Available Retained Collections shall
be allocated among such Series pro rata on the basis of such required
subordination draw amounts for the respective Series.
(b) If for any Distribution Date, the sum of the amount
required to be deposited into the reserve funds created for more than
one Series of Certificates, exceeds the Available Retained Collections
on deposit in the Collection Account on such Distribution Date, then
such Available Retained Collections shall be allocated among such
Series pro rata on the basis of such required deposits into the
respective reserve funds.
(c) If for any Distribution Date, the sum of the amount of the
excess reserve fund required amounts for more than one Series of
Certificates, exceeds the exceeds the Available Retained Collections on
deposit in the Collection Account on such Distribution Date, then such
Available Retained Collections shall be allocated among such Series pro
rata on the basis of such amounts required to be deposited in each such
reserve fund to fund the excess reserve fund required amount.
30
ARTICLE XIV
Delayed Amendment Relating to Delegation
SECTION 14.01. Amendment Relating to Delegation. Section 8.07
of the Original Agreement is hereby amended, effective on the day after the
Series 1994-1 Final Payment Date, to read in its entirety as follows:
SECTION 8.07. Delegation of Duties. In the ordinary course of
business, the Servicer or any Affiliate of BCI servicing Receivables
may at any time delegate any duties hereunder to any Person who agrees
to conduct such duties in accordance with the Financing Guidelines and
this Agreement. The Servicer shall give prompt written notice of any
such material delegation of its servicing duties to the Rating
Agencies, the Trustee, any Agent and any Enhancement Providers. Such
delegation shall not relieve the Servicer of its liability, indemnity
and responsibility with respect to such duties, and shall not
constitute a resignation within the meaning of Section 8.05 hereof and
the Rating Agency Condition shall have been satisfied with respect to
such material delegation prior to such delegation. It is understood
that Affiliates of BCI perform servicing activities on behalf of BCI
with respect to certain Receivables and that no action on the part of
the Servicer under this Section 8.07 is required and the Rating Agency
Condition is deemed to have been satisfied in connection with such
servicing activities.
ARTICLE XV
Current Amendments Relating to Amendments
SECTION 15.01. Current Amendment Relating to Amendments
Procedures. Section 13.01 (a) of the Original Agreement is hereby amended,
effective on the date 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 13.01. Amendment. (a) This Agreement or any Supplement
may be amended from time to time (including in connection with the
issuance of a Supplemental Certif icate) by the Servicer, the
Depositor, the Trustee and BCI (if BCI is not the Servicer) without the
consent of any of the Certificateholders, provided that such action
shall not, as evidenced by an Opinion of Counsel for the Depositor,
addressed and delivered to the Trustee, adversely affect in any
material respect the interests of any Certificateholder or the Holder
of the Variable Funding Certificate. Notwithstanding anything contained
herein to the contrary, (i) the Trustee, with the consent of any
Enhancement Providers, may at any time and from time to time amend,
modify or supplement the form of Distribution Date Statement (ii) the
Servicer, the Depositor, the Trustee and BCI (if not then the Servicer)
may, at any time, without the consent of any of the Certificateholders,
any Enhancement Providers, any Rating Agency, or any other person,
amend Section 2.07 hereof to conform to the terms of such section as
set forth in the Agreement prior to the amendment thereof by
31
Amendment Number 1 to the Pooling and Servicing Agreement dated as of
January 1, 1997 (and make any other conforming changes to other
applicable provisions of the Agreement and any Exhibit hereto which
were amended to conform to the Amendment made to Section 2.07 by such
Amendment Number 1); provided that as a condition to such amendment,
BCI shall deliver to the Trustee a written statement to the effect that
at the time of such amendment the terms of Section 2.07 (as so amended)
will, under generally accepted accounting principles, be consistent
with sale treatment afforded the transfer of the Receivables by BCRC to
the Trust; and (iii) subject to the provisions of the following
sentence, the Servicer, the Depositor, the Trustee and BCI (if not then
the Servicer) may, with the consent of the Rating Agencies but without
the consent of any of the Certificateholders, any Enhancement Provider
or any other person, amend from time to time (including in connection
with the issuance of a Supplemental Certificate) this Agreement or any
Supplement in order to conform such documents to the description of the
Certificates and the Receivables and the other matters set forth in the
Registration Statement filed by the Depositor with the Securities and
Exchange Commission relating to the initial Investor Certificates, as
such Registration Statement is in effect on the first Closing Date. Any
amendment made under the provisions of clause (iii) of the preceding
sentence 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 do not materially adversely affect any other Series of
Certificates and any such amendment shall be 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 the Agreement after
such amendment.
ARTICLE XVI
Delayed Amendments Relating to Amendment Procedures
SECTION 16.01. Amendment Relating to Amendment Procedures.
Section 13.01(a) of the Original Agreement is hereby amended, effective on the
day after the Series 1994-1 Final Payment Date, to read in its entirety as
follows:
SECTION 13.01. Amendment. (a) This Agreement or any Supplement
may be amended from time to time (including in connection with the
issuance of a Supplemental Certificate) by the Servicer, the Depositor,
the Trustee and BCI (if BCI is not the Servicer) without the consent of
any of the Certificateholders, provided that such action shall not, as
evidenced by an Opinion of Counsel for the Depositor, addressed and
delivered to the Trustee, adversely affect in any material respect the
interests of any Certificateholder or the Holder of the Variable
Funding Certificate and provided, further, that any Supplement may, to
the extent that such Supplement specifically provides for amendment
thereof in accordance with terms which are different from those set
forth in this Section 13.01, be amended pursuant to the specific terms
thereof without compliance with the provisions of this Section 13.01.
Notwithstanding anything contained herein to the contrary, the Trustee,
32
with the consent of any Enhancement Providers, may at any time and from
time to time amend, modify or supplement the form of Distribution Date
Statement.
SECTION 16.02. Amendment Relating to Rating Agency Condition.
Section 13.01 of the Original Agreement is hereby amended, effective on the day
after the Series 1994-1 Final Payment Date, to add the following subsection
(g) as the concluding provision in such Section 13.01. Such Section 13.01 (g)
shall read in its entirety as follows:
(g) Whenever a provision of this Agreement or of any
Supplement states that an adjustment, revision, amendment or other
change may be made upon satisfaction of the Rating Agency Condition,
such adjustment, revision, amendment or change shall be effective upon
the satisfaction of the Rating Agency Condition and any other
conditions set forth in the specific provision hereof or thereof, but
shall not be controlled by the terms of this Section 13.01 and
compliance with the terms of this Section 13.01 shall not be applicable
thereto.
ARTICLE XVII
Current Amendments Relating to Exhibits
SECTION 17.01. Amendments to Exhibit H-1. Exhibit H-1 is
hereby amended effective on the date 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 set forth in Exhibit A to this Amendment.
SECTION 17.02. Amendments to Exhibit H-2. Paragraph 6 in
Exhibit H-2 to the Original Agreement is hereby amended effective on the date 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:
6. Condition Precedent. In addition to the conditions
precedent set forth in Section 2.08 of the Agreement, the obligation of
the Trustee to execute and deliver this Reassignment is subject to the
Depositor having delivered on or prior to the Removal Commencement Date
to the Trustee and any Enhancement Providers an Officers' Certificate
certifying that (i) as of the Removal Commencement Date, all
requirements set forth in Section 2.08 of the Agreement for removing
such Ineligible Accounts and reconveying the Receivables of such
Ineligible Accounts and the Collateral Security created from time to
time until the Removal Termination Date, have been satisfied, and (ii)
each of the representations and warranties made by the Depositor in
Section 5 hereof is true and correct as of the date of this
Reassignment and as of the Removal Commencement Date. The Trustee may
conclusively rely on such Officers' Certificate, shall have no duty to
make inquiries with regard to the matters set forth therein and shall
incur no liability in so relying.
33
ARTICLE XVIII
Delayed Amendments Relating to Exhibits
SECTION 18.01. Amendments to Exhibit A. Exhibit A to the
Original Agreement is hereby amended, effective on the day after the Series
1994-1 Final Payment Date, as set forth in this Section 18.01, and after the
Series 1994-1 Final Payment Date, BCRC shall deliver to the Trustee the original
BCRC Certificate in exchange for a new BCRC Certificate which new BCRC
Certificate shall represent the same interest as that delivered for exchange,
provided that the new certificate shall be in the form of Exhibit A as amended
by this provision. The Trustee is hereby authorized and directed to execute the
replacement BCRC Certificate after the Series 1994-1 Final Payment Date and to
authenticate such certificate and deliver it to BCRC in exchange for the
existing BCRC Certificate. Exhibit A shall be amended as follows:
Those provisions on the face of BCRC Certificate which describe the
interest represented by the certificate are amended to read as follows:
THIS CERTIFICATE REPRESENTS AN INTEREST IN CERTAIN
ASSETS OF THE BOMBARDIER RECEIVABLES MASTER TRUST I
Evidencing an interest in a trust, the corpus of which consists
primarily of payment obligations generated from time to time and
resulting from (i) extensions of credit and advances (referred to as
inventory, wholesale or floor plan financing) which loans are made or
acquired by Bombardier Capital Inc.("BCI") or an affiliate of BCI and
(ii) extensions of credit and advances which loans are made or acquired
by BCI or an Affiliate of BCI for the purpose of financing working
capital or the manufacturing or production or inventory with respect to
consumer, recreational and commercial products (collectively, the
"Receivables") and maintained by BCI in a portfolio of financing
arrangements (the "Accounts") meeting certain eligibility criteria.
This certificate (the "BCRC Certificate") does not represent an
interest in or obligation of Bombardier Credit Receivables Corporation
(the "Depositor" or "BCRC"), BCI or any Affiliate thereof.
On the form of reverse of BCRC Certificate, the fifth paragraph is
amended to read as follows:
The Receivables consist of amounts payable by obligors as a
result of (i) advances made to domestic dealers of consumer,
recreational and commercial products and (ii) advances made to domestic
dealers, manufacturers and distributors to finance working capital,
manufacturing, production and inventory with respect to consumer,
recreational and commercial products.
34
SECTION 18.02. Amendments to Exhibit C. Exhibit C to the
Original Agreement is hereby amended, effective on the day after the Series
1994-1 Final Payment Date, as set forth in this Section 18.02.
Paragraphs 4 and 5 of the Form of Annual Servicer's Certificate are
hereby amended to read as follows:
4. Based on such review, the Servicer has, to the best of our
knowledge, performed in all material respects all of its obligations
under the Agreement throughout such year and no material default in the
performance of such obligations has occurred or is continuing except as
set forth in paragraph 5 below.
5. The following is a description of each material default in
the performance of the Servicer's obligations under the provisions of
the Agreement known to us to have been made by the Servicer during the
year ended December 31, ____, which sets forth in detail the (a) nature
of each such default, (b) the action taken by the Servicer, if any, to
remedy each such default and (c) the current status of each such
default: [If applicable, insert "None."]
SECTION 18.03. Amendments to Exhibit G-2. The caption and
introductory provisions to Exhibit G-2 are hereby amended, effective on the day
after the Series 1994-1 Final Payment Date to read as follows and to add, prior
to paragraph (a) a new provision, all as follows:
EXHIBIT G-2
TO POOLING AND SERVICING AGREEMENT
FORM OF OPINION OF COUNSEL
IN CONNECTION WITH ADDITION OF ACCOUNTS
Provisions to be Included in
Opinion of Counsel Delivered Pursuant
to Section 2.05(f) or Section 2.05(h)
The opinions described herein shall, if given under the
provisions of Section 2.05 (f), be given with respect to a specific assignment
made on the date of the opinion and refer only to such assignment and to the
Transferred Property which is the subject of such assignment and shall, if given
under Section 2.05(h) following the addition of Accounts under the Automatic
Addition Condition, be given with respect to all such assignments of Additional
Accounts under the Automatic Addition Condition provisions and to the
Transferred Property which was the subject of such assignments and which have
not previously been covered by an opinion covering the matters set forth in this
Exhibit G-2.
35
ARTICLE XIX
Miscellaneous
SECTION 19.01. Current Amendment Relating to Place of Business
and Notice. The Depositor hereby represents and warrants to the Trust and to the
Trustee that, as of the date of execution and delivery of this Amendment that
the principal place of business of the Depositor is in Burlington, Vermont and
the offices where the Depositor keeps its records concerning the Receivables and
related contracts are in Colchester, Vermont. To the extent that this provision
differs from that set forth in Section 2.03 (j) of the Original Agreement, such
Original Agreement is hereby amended on the date of execution and delivery of
this Amendment.
With respect to Section 13.06 of the Original Agreement, BCI
hereby designates to BCRC and the Trustee, that for purposes of delivering
demands, notices, instructions, directions and communication under the
Agreement, the address of BCI has changed and the current address is "1600
Mountain View Drive, Colchester, Vermont 05402."
SECTION 19.02. Counterparts. This Amendment 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 19.03. Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
or any provision hereof.
SECTION 19.04. Agreement in Full Force and Effect as Amended.
Except as specifically amended or waived hereby, all of the terms and conditions
of the Original Agreement shall remain in full force and effect. All references
to the Original Agreement in any other document or instrument shall be deemed to
mean such Original Agreement as amended by this Amendment. This Amendment shall
not constitute a novation of the Original Agreement, but shall constitute an
amendment thereof. The parties hereto agree to be bound by the terms and
obligations of the Original Agreement, as amended by this Amendment, as though
the terms and obligations of the Original Agreement were set forth herein.
SECTION 19.05. Governing Law. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS.
36
IN WITNESS WHEREOF, the Depositor, the Servicer and the
Trustee have caused this Amendment Number 1 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 23, 1997.
BOMBARDIER CREDIT RECEIVABLES
CORPORATION, Depositor
By: /s/ Blaine Filthaut
-------------------------------------
Name: Blaine Filthaut
Title: Vice President and Treasurer
By: /s/ Andrew Baranowsky
-------------------------------------
Name: Andrew Baranowsky
Title: Assistant Treasurer
BOMBARDIER CAPITAL INC., Servicer
By: /s/ Blaine Filthaut
-------------------------------------
Name: Blaine Filthaut
Title: Vice President and Treasurer
By: /s/ Andrew Baranowsky
-------------------------------------
Name: Andrew Baranowsky
Title: Assistant Treasurer
BANKERS TRUST COMPANY, Trustee
By: /s/ Lillian K. Peros
-----------------------------------
Name: Lillian K. Peros
----------------------------
Title: Asst. Vice President
----------------------------
37
EXHIBIT A
EXHIBIT H-1
TO POOLING AND SERVICING AGREEMENT
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(As required by Section 2.07(c) of the
Pooling and Servicing Agreement referred to below)
REASSIGNMENT NO. _______ OF RECEIVABLES,
dated as of _______________, ____
by and between BANKERS TRUST COMPANY,
as trustee (the "Trustee") and
BOMBARDIER CREDIT RECEIVABLES CORPORATION,
as depositor (the "Depositor"),
pursuant to the Pooling and Servicing Agreement
referred to below.
WITNESSETH
WHEREAS the Depositor and the Trustee are parties to the
Pooling and Servicing Agreement dated as of January 1, 1994 (as amended or
supplemented, the "Agreement");
WHEREAS, pursuant to Section 2.07 of the Agreement, the
Depositor wishes to remove all Receivables from certain Accounts and the
Collateral Security in respect thereof (the "Removed Accounts") and to cause the
Trustee, on behalf of the Trust, to reconvey the Receivables of such Removed
Accounts and such Collateral Security, whether now existing or hereafter
created, and all amounts currently held by the Trustee or thereafter received by
the Trust in respect of such Removed Accounts, from the Trustee to the Depositor
(as each such term is defined in the Agreement); and
WHEREAS the Trustee, on behalf of the Trust, is willing to
accept such removal and to reconvey the Receivables in the Removed Accounts,
such Collateral Security and any related amounts held or received by the Trust
subject to the terms and conditions hereof.
NOW, THEREFORE, the Depositor and the Trustee, on behalf of
the Trust, hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein shall have
such defined meanings when used herein, unless otherwise defined herein.
H-1-1
2. Notice of Removed Accounts. (a) Not less than five Business
Days prior to the Removal Commencement Date, the Depositor shall furnish to the
Trustee, any Enhancement Providers and the Rating Agencies a written notice
specifying the date on which removal of the Receivables of one or more Accounts
will begin, such date being a Removal Commencement Date.
(b) On or before the fifth business day after the Removal
Commencement Date, the Depositor shall furnish to the Trustee a computer file,
microfiche list or other written list of the Removed Accounts, specifying for
each Removed Account as of the day immediately preceding the Removal
Commencement Date its number and the aggregate amount outstanding in such
Removed Account and the aggregate outstanding principal balance 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 Commencement Date and shall
amend Schedule 1 to the Agreement.
3. Conveyance of Receivables and Accounts. (a) The Trustee
does hereby, on behalf of the Trust, transfer, assign, set over and otherwise
convey to the Depositor, without recourse, representation or warranty on and
after the Removal Commencement Date, all right, title and interest of the Trust
in, to and under (x) all Receivables created from time to time on and after the
removal Commencement Date until the removal Termination Date in the Removed
Accounts designated hereby, all monies due or to become due and all amounts
received with respect thereto (including all Non-Principal Receivables) and all
proceeds thereof (as defined in Section 9-306 of the UCC as in effect in the
State of Vermont) and Recoveries relating thereto and (y) on the Removal
Termination Date, all Collateral Security in connection with such Removed
Accounts and all proceeds thereof (as defined in Section 9-306 of the UCC as in
effect in the State of Vermont and Recoveries) related thereto.
(b) If requested by the Depositor, in connection with such
transfer, the Trustee agrees to execute and deliver to the Depositor on or prior
to the date of this Reassignment, a termination statement with respect to the
Receivables created from time to time on and after the Removal Commencement Date
in the Removed Accounts reassigned hereby (which may be a single termination
statement with respect to all such Receivables and Collateral Security)
evidencing the release by the Trust of its lien on the Receivables in the
Removed Accounts and the Collateral Security with respect thereto, and meeting
the requirements of applicable state law, in such manner and such jurisdictions
as are necessary to remove such lien.
4. Acceptance by Trustee. The Trustee hereby acknowledges
that, prior to or simultaneously with the execution and delivery of this
Reassignment, the Depositor delivered to the Trustee the computer file or such
microfiche or written list described in Section 2(b) of this Reassignment.
5. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee as of the date of this
Reassignment and as of the Removal Commencement Date:
H-1-2
(a) Legal Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights
generally and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity)
and the availability of equitable remedies;
(b) No Early Amortization Event. The removal of the Accounts
hereby removed shall not, in the reasonable belief of the Depositor,
cause an Early Amortization Event to occur or cause the Pool Balance to
be less than the Required Pool Balance;
(c) Selection Procedures. No selection procedures reasonably
believed by the Depositor to be adverse to the interests of the
Beneficiaries were utilized in selecting the Accounts to be removed;
(d) True and Complete List. The list of Removed Accounts
described in Section 2(b) of this Assignment is, as of the Removal
Commencement Date, true and complete in all material respects; and
6. Condition Precedent. In addition to the conditions
precedent set forth in Section 2.07 of the Agreement, the obligation of the
Trustee to execute and deliver this Reassignment is subject to the Depositor
having delivered on or prior to the Removal Commencement Date to the Trustee,
any Agent and any Enhancement Providers an Officers' Certificate certifying that
(i) as of the Removal Commencement 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,
created from time to time on and after the Removal Commencement Date until the
termination of the Trust, have been satisfied, and (ii) each of the
representations and warranties made by the Depositor in Section 5 hereof is true
and correct as of the date of this Reassignment and as of the Removal
Commencement Date. The Trustee may conclusively rely on such Officers'
Certificate, shall have no duty to make inquiries with regard to the matters set
forth therein and shall incur no liability in so relying.
7. Ratification of Agreement. As supplemented by this
Reassignment, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Reassignment shall be read, taken and
construed as one and the same instrument.
8. Counterparts. This Reassignment may be executed in two or
more counterparts, and by different parties on separate counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS, AND THE OBLIGATIONS,
H-1-3
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 RECEIVABLES MASTER TRUST I
By: BANKERS TRUST COMPANY, Trustee
By:___________________________
Name: _____________________
Title: ______________________
BOMBARDIER CREDIT RECEIVABLES
CORPORATION, Depositor
By:___________________________
Name: _____________________
Title: ______________________
By:___________________________
Name: _____________________
Title: ______________________
H-1-4