EXECUTION COPY
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BOMBARDIER CREDIT RECEIVABLES CORPORATION
Purchaser
and
BOMBARDIER CAPITAL INC.
Seller
AMENDMENT NUMBER 1
Dated as of January 1, 1997
to
RECEIVABLES PURCHASE AGREEMENT
Dated as of January 1, 1994
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Table of Contents
Page
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ARTICLE I
Definitions
SECTION 1.01. Cross Reference to Definitions in the Pooling and Servicing
Agreement.....................................................................2
SECTION 1.02. Current Amendment to Add Defined Terms....................................................2
SECTION 1.03. Terms Confined to this Amendment..........................................................2
SECTION 1.04. Effective Dates...........................................................................3
ARTICLE II
Current Amendments Relating to Conveyance of Receivables
SECTION 2.01. General Amendment Relating to Contribution of Receivables.................................3
SECTION 2.02. Amendment Relating to Exclusion of Receivables in Accounts
Removed from the Trust........................................................4
SECTION 2.03. Amendment Relating to Purchase Price......................................................4
SECTION 2.04. Amendment Relating to Record of Accounts..................................................5
ARTICLE III
Amendments Relating to Representations and
Warranties and Removal of Accounts and Receivables
SECTION 3.01. Current Amendment to Representations and Warranties of the Seller
Relating to the Seller and the Agreement......................................5
SECTION 3.02. Delayed Amendment to Representations and Warranties of the Seller
Relating to the Receivables...................................................6
SECTION 3.03. Current Amendment Relating to Removal of Accounts.........................................6
SECTION 3.04. Delayed Amendment Relating to Removal of Participation
Interests....................................................................8
SECTION 3.05. Delayed Amendment Relating to Removal of Receivables for
Assignment to a Third Party..................................................9
ARTICLE IV
Delayed Amendments Relating to the Addition of Accounts
SECTION 4.01. Amendments Relating to the Automatic Addition of Accounts................................11
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ARTICLE V
Delayed Amendments Relating to Covenants of the Seller
SECTION 5.01. Amendments Relating to Liens.............................................................11
SECTION 5.02. Amendments Relating to Delivery of Collections...........................................12
ARTICLE VI
Delayed Amendment Relating to Repurchase Agreements
SECTION 6.01. Addition of Provision Relating to Repurchase Agreements..................................12
ARTICLE VII
Current Amendment Relating to Amendments
SECTION 7.01. Amendment to Provisions Relating to Amendment of the
Receivables Purchase Agreement...............................................13
SECTION 7.02. Amendment to Provisions Relating to Consent of Enhancement Provider
to Amendment of the Receivables Purchase Agreement.............................14
SECTION 7.03. Amendments to Exhibit D-2................................................................14
ARTICLE VIII
Current Amendments to Exhibits
SECTION 8.01. Amendments to Exhibit A..................................................................15
SECTION 8.02. Amendments to Exhibit D-1................................................................15
ARTICLE IX
Miscellaneous
SECTION 9.01. Counterparts.............................................................................16
SECTION 9.02. Headings.................................................................................16
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AMENDMENT NUMBER 1 dated as of January 1, 1997 (this
"Amendment") to the RECEIVABLES PURCHASE AGREEMENT dated as of January 1, 1994
(the "Original Receivables Purchase Agreement"), each between BOMBARDIER CREDIT
RECEIVABLES CORPORATION, a Delaware corporation, as Purchaser, and BOMBARDIER
CAPITAL INC., a Massachusetts corporation, as Seller.
W I T N E S S E T H :
WHEREAS (i) the Seller, in the ordinary course of its
business, finances the purchase of floorplan and wholesale inventory by dealers
of consumer, recreational and commercial products thereby generating certain
payment obligations and (ii) the Seller plans, in the ordinary course of its
business, to finance working capital needs and the production, manufacturing and
inventory of consumer, recreational and commercial products for dealers,
distributors and manufacturers, and thereby also to generate payment
obligations; and
WHEREAS the Seller entered into the Original Receivables
Purchase Agreement for the purpose of selling certain of such existing and
future payment obligations from time to time to the Purchaser; and
WHEREAS, the Seller, the Purchaser and BANKERS TRUST COMPANY,
as Trustee (the "Trustee"), have entered into a Pooling and Servicing Agreement
dated as of January 1, 1994 and, simultaneously herewith, are entering into
Amendment Number 1 to such Pooling and Servicing Agreement (such Pooling and
Servicing Agreement as amended by such Amendment to Pooling and Servicing
Agreement and as the same may hereafter from time to time be amended,
supplemented or otherwise modified, the "Pooling and Servicing Agreement"); and
WHEREAS, the Seller and the Purchaser have agreed that, from
time to time, the Seller may transfer Receivables to the Purchaser by
contribution rather than by sale and the parties wish to make provisions for
such contributions; and
WHEREAS, the Seller and the Purchaser, in accordance with
Section 8.01 of the Original Receivables Purchase Agreement, by the execution
and delivery of this Amendment, hereby amend the Original Receivables Purchase
Agreement to the extent and on the terms set forth in this Amendment.
NOW THEREFORE, the parties hereto agree as follows:
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ARTICLE I
Definitions
SECTION 1.01. Cross Reference to Definitions in the Pooling
and Servicing Agreement. Except to the extent the context clearly indicates
otherwise, capitalized terms used herein and not defined herein or amended by
the terms of this Amendment shall have the meanings set forth in the Pooling and
Servicing Agreement, including the Amendment to Pooling and Servicing Agreement,
and in the Original Receivables Purchase Agreement together with any subsequent
amendments thereto.
SECTION 1.02. Current Amendment to Add Defined Terms. Article
I of the Original Receivables Purchase 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 the addition of Section 1.03
which shall read, in its entirety, as follows:
SECTION 1.03. Certain Terms Defined. Whenever used in this
Receivables Purchase Agreement, the following words shall have the following
meanings:
"Minimum Equity Amount" shall mean, as of any date of
determination, the sum of (i) the product of (A) 0.045 and (B) the aggregate
amount of Principal Receivables held by the Trust on the immediately preceding
Distribution Date and (ii) the sum, without duplication, of (A) the Obligor
Overconcentrations, (B) the Manufacturer Overconcentrations and (C) the Industry
Overconcentrations (each as defined in the Series 1997-1 Supplement and
calculated as of the immediately preceding Distribution Date).
"Series 1997-1 Supplement" shall mean that Supplement dated as
of January 1, 1997 which sets forth the terms of a Series of Investor
Certificates designated as Series 1997-1.
SECTION 1.03. Terms Confined to this Amendment. Whenever used
in this Amendment, the following words shall have the following meanings:
"Amendment" shall mean this Amendment Number 1 dated as of
January 1, 1997 to the Original Receivables Purchase Agreement, as such
Amendment Number 1 may be modified, amended and supplemented hereafter.
"Amendment to Pooling and Servicing Agreement" shall mean
Amendment Number 1, dated as of January 1, 1997, to the Original Pooling and
Servicing Agreement.
"Delayed Amendments" shall mean those amendments to the
Original Receivables Purchase Agreement set forth herein which are specified
herein as having an Effective Date on the day following the Series 1994-1 Final
Payment Date.
"Effective Date" shall mean the date on which the respective
amendments to the Original Receivables Purchase Agreement contained in this
Amendment shall become effective
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which (i) with respect to those amendments set forth in ARTICLES II, VII, VIII
and Sections 3.01 and 3.03 shall be the date of execution and delivery of this
Amendment by each of the parties hereto as specified on the signature page
hereto and (ii) with respect to those amendments set forth in all other Sections
and Articles of this Amendment shall be the day after the Series 1994-1 Final
Payment Date.
"Original Receivables Purchase Agreement" shall mean the
Receivables Purchase Agreement dated as of January 1, 1994 between Bombardier
Capital Inc., as Seller, and Bombardier Credit Receivables Corporation, as
Purchaser.
"Receivables Purchase Agreement" shall mean, the Original
Receivables Purchase Agreement as amended and supplemented by this Amendment and
as otherwise modified, amended and supplemented from time to time.
SECTION 1.04. Effective Dates. The Amendment to Pooling and
Servicing Agreement sets forth the respective Effective Dates of the defined
terms added to the Pooling and Servicing Agreement or amended by the Amendment
to Pooling and Servicing Agreement. With respect to each such new or amended
definition the respective Effective Dates in the Amendment to Pooling and
Servicing Agreement shall also be the Effective Dates under this Amendment.
ARTICLE II
Current Amendments Relating to Conveyance of Receivables
SECTION 2.01. General Amendment Relating to Contribution of
Receivables. The Original Receivables Purchase Agreement (including the Exhibits
thereto) is hereby amended and supplemented 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 provide that Receivables, in addition to being sold by
the Seller to the Purchaser, may be transferred from the Seller to the Purchaser
in the form of a capital contribution. Notwithstanding the fact that the
Original Receivables Purchase Agreement and the Exhibits thereto refer only to
the sale of Receivables, wherever in the Original Receivables Purchase Agreement
or any Exhibit thereto there is a reference to a sale of Receivables by the
Seller to the Purchaser or the purchase of Receivables from the Seller, such
provision shall also be applicable to and shall provide for the transfer of
Receivables in the form of a contribution.
SECTION 2.02. Amendment Relating to Exclusion of Receivables
in Accounts Removed from the Trust. The second sentence of Section 2.01 of the
Original Receivables Purchase 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:
Subject to Article VI hereof, as of each Business Day prior to the
earlier of (A) an Appointment Date and (B) the Trust Termination Date,
on which Receivables are created in the Accounts (each, a "Transfer
Date"), the Seller does hereby sell, transfer, assign, set over and
otherwise convey, without recourse (except as expressly provided
herein), to the Purchaser, all of its right, title and interest in, to
and under the Receivables in each Account (other than any (x)
Receivables created in a Removed Account or Ineligible
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Account after the applicable Removal Commencement Date as provided in
Section 2.07 or 2.08 of the Pooling and Servicing Agreement or (y)
Participation Interests in Receivables in such Accounts that have been
transferred to third parties) and all Collateral Security with respect
thereto owned by the Seller at the close of business on such Transfer
Date and not theretofore conveyed to the Purchaser, all monies due or
to become due and all amounts received with respect thereto and all
proceeds thereof (including "proceeds", as defined in Section 9-306 of
the UCC as in effect in the State of Vermont, and Recoveries). The
parties hereto intend that this Agreement constitutes an absolute
conveyance; provided, however, that to the extent that notwithstanding
the intent of the parties, the Receivables are held to continue to be
property of the Seller, then this Agreement shall be deemed to be and
hereby is a security agreement within the meaning of Article 9 of the
UCC.
SECTION 2.03. Amendment Relating to Purchase Price. Section
2.01 (e) of the Original Receivables Purchase 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:
(e) The purchase price (i) with respect to Eligible
Receivables sold hereunder will equal the principal amount of such
Receivables plus accrued and unpaid interest thereon on the related
Transfer Date (less, if then applicable, the amount of principal and
interest allocable to any Participation Interest) and (ii) with respect
to Ineligible Receivables sold hereunder will equal 100% of the net
book value (as determined by the Seller) of such Receivables (less, if
then applicable, the amount of principal and interest allocable to any
Participation Interest) as of the related Transfer Date. If Receivables
are contributed by the Seller to the Purchaser, the value of such
contribution (i) with respect to Eligible Receivables contributed
hereunder will equal the principal amount of such Receivables plus
accrued and unpaid interest thereon on the related Transfer Date (less,
if then applicable, the amount of principal and interest allocable to
any Participation Interest) and (ii) with respect to Ineligible
Receivables contributed hereunder will equal 100% of the net book value
(as determined by the Seller) of such Receivables as of the related
Transfer Date (less, if then applicable, the amount of principal and
interest allocable to any Participation Interest). The consideration
paid with respect to transfers of Receivables hereunder subsequent to
the Closing Date may be paid, at the election of Purchaser, (a) in
cash, (b) by means of increasing the principal amount of the BCRC Note,
(c) by means of capital contributed by the Seller to the Purchaser in
the form of a contribution of such Receivables, or (d) any combination
of the foregoing; provided, however, that in no event shall the
principal amount of the BCRC Note be increased in connection with any
such transfer if, after giving effect to such increase, the equity of
the Purchaser (determined in accordance with generally accepted
accounting principles) would be less than the Minimum Equity Amount.
SECTION 2.04. Amendment Relating to Record of Accounts.
Section 2.02 (i) of the Original Receivables Purchase 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,
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as of the applicable Removal Termination Date, in the case of Removed
Accounts and Ineligible Accounts, Schedule 1 to this Agreement (as
amended from time to time) is an accurate and complete listing in all
material respects of all the Accounts as of the Cut-Off Date, the
applicable Additional Cut-Off Date or the applicable Removal
Termination Date, as the case may be, and the information contained
therein with respect to the identity of such Accounts and the
Receivables existing thereunder is true and correct in all material
respects as of the Cut-Off Date, such applicable Additional Cut-Off
Date or such Removal Termination Date, as the case may be.
ARTICLE III
Amendments Relating to Representations and
Warranties and Removal of Accounts and Receivables
SECTION 3.01. Current Amendment to Representations and
Warranties of the Seller Relating to the Seller and the Agreement. Section 2.02
(a) of the Original Receivables Purchase 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:
(a) Organization and Good Standing. The Seller is a
corporation duly organized and validly existing and in good
standing under the laws of the state of its incorporation and
has, in all material respects, full corporate power, authority
and legal right to own its properties and conduct its business
as such properties are presently owned and such business is
presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
SECTION 3.02. Delayed Amendment to Representations and
Warranties of the Seller Relating to the Receivables. Subsections (a)(i) and
(a)(v) of Section 2.03 of the Original Receivables Purchase Agreement are hereby
amended, effective on the day after the Series 1994-1 Final Payment Date, to
read in their entirety, respectively, as follows:
(i) Each Receivable and all Collateral Security
existing on the first Closing Date has been or, in the case of
Additional Accounts, on the applicable Addition Date, and on
each Transfer Date, has been and will be conveyed to the
Purchaser free and clear of any Lien except for Liens
permitted under Section 2.06(a) of the Pooling and Servicing
Agreement.
(v) Each Domestic Inventory Receivable conveyed to
the Trust was, at the time of its creation, and is and will be
secured by a first priority perfected security interest in the
related Eligible Product and each Asset-Based Receivable
conveyed to the Trust is at the time of such conveyance
secured by a first priority perfected security interest in
accounts, goods, work in progress, raw materials, component
parts or other rights or assets of the Obligor except to the
extent of Liens permitted by Section 2.06(a) of the Pooling
and Servicing Agreement.
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SECTION 3.03. Current Amendment Relating to Removal of
Accounts.Section 2.06 of the Original Receivables Purchase 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 2.06. Removal of Accounts. (a) If the
Depositor elects to exercise its right pursuant to Section 2.07 of the
Pooling and Servicing Agreement to cease transferring newly originated
Receivables to certain Accounts, the Purchaser shall be deemed to have
offered to the Seller automatically and without notice to or action by
or on behalf of the Purchaser the right to reacquire and remove such
Receivables from the operation of this Agreement in the manner
prescribed in Subsection (b) below, and on the related Removal
Termination Date, under Section 2.07(c) of the Pooling and Servicing
Agreement with respect to such Accounts, the Purchaser shall be deemed
to have offered to the Seller automatically and without notice to or
action by or on behalf of the Purchaser, the right to remove Accounts
from the operation of this Agreement in the manner prescribed in
subsection (b) below.
(b) To accept such offer and remove Accounts and the
Receivables arising therein, the Seller (or the Servicer on its behalf)
shall take the following actions and make the following determinations:
(i) not less than five (5) Business Days prior to the
Removal Commencement Date, furnish to the Purchaser, the
Trustee, any Enhancement Providers and the Rating Agencies a
written notice (the "Removal Notice") specifying the date on
which the Purchaser is to cease (the "Removal Commencement
Date") transferring to the Trust newly originated Receivables
in one or more Accounts which Accounts are specified in such
notice (the "Removed Accounts");
(ii) from and after such Removal Commencement Date,
cease to transfer to the Purchaser any and all receivables
arising in such Removed Accounts;
(iii) represent and warrant that the removal of any
such Account shall not, in the reasonable belief of the
Seller, cause an Early Amortization Event to occur or cause
the Pool Balance to be less than the Required Pool Balance;
(iv) represent and warrant that no selection
procedures reasonably believed by the Seller to be adverse to
the interests of the Beneficiaries were utilized in selecting
the Accounts to be removed;
(v) represent and warrant that such removal will not
result in a reduction or withdrawal of the rating of any
outstanding Series or Class by the applicable Rating Agency;
(vi) on or before the related Removal 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
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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 to the Pooling and
Servicing Agreement by delivering to the Trustee a computer
file or microfiche or written list containing a true and
complete list of the Removed Accounts to be removed,
specifying for each such Account, as of the date immediately
preceding the Removal Commencement Date, its account number,
the aggregate amount of Receivables outstanding in such
Account and the aggregate outstanding principal balance
therein (the "Designated Balance").
(c) Subject to subsection (b) above, on the Removal
Termination Date with respect to any such Removed Account, such Removed
Account shall be deemed removed by operation of this Agreement for all
purposes. After the Removal Termination Date and upon the written
request of the Servicer, the Purchaser shall deliver to the Seller a
reassignment in substantially the form of Exhibit D-1 hereto (a
"Reassignment").
SECTION 3.04. Delayed Amendment Relating to Removal of
Participation Interests. The Original Receivables Purchase Agreement is hereby
amended, effective on the day after the Series 1994-1 Final Payment Date, to add
Section 2.09 which shall read in its entirety, as follows:
SECTION 2.09 Removal of Participation Interests. (a)
On each date on which an undivided interest in a Receivable or in
Receivables (and the related Collateral Security and other rights
associated therewith) is removed from the Trust pursuant to Section
2.11 of the Pooling and Servicing Agreement, the Purchaser shall be
deemed to have offered to the Seller automatically and without notice
to or action by or on behalf of the Purchaser, the right to remove the
interest from the operation of this Agreement in the manner prescribed
in subsection (b) below.
(b) To accept such offer and remove undivided interests in
Receivables in connection with the granting of a Participation
Interest, the Seller (or the Servicer on its behalf) shall take the
following actions and make the following determinations:
(i) not less than five (5) Business Days prior to the
date on which removal of the Participation Interest (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 date of
such 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
Seller, cause an Early Amortization Event to occur or cause
the Pool Balance to be less than the Required Pool Balance;
(iii) represent and warrant that no selection
procedures reasonably believed by the Seller (or the Servicer
on its behalf) to be adverse to the interests of the
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Beneficiaries were utilized in selecting the Accounts or the
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 2.09, on the Participation Interest
Removal Date with respect to any such Removed Participation Interest,
such Removed Participation Interest shall be deemed removed from the
operation of this Agreement for all purposes and shall no longer be
included as a "Receivable" and the undivided interests in such Account
which have not been removed shall continue as "Receivables" subject to
the terms hereof and of the Trust.
SECTION 3.05. Delayed Amendment Relating to Removal of
Receivables for Assignment to a Third Party. The Original Receivables Purchase
Agreement is hereby amended, effective on the day after the Series 1994-1 Final
Payment Date, to add Section 2.10 which shall read in its entirety, as follows:
SECTION 2.10. Removal of Receivables for Assignment to a Third
Party.
(a) On each date on which a Receivable or Receivables are
withdrawn from the Trust (the "Removal Date") pursuant to Section
2.12(a)(i) of the Pooling and Servicing Agreement, the Purchaser shall
be deemed to have offered to the Seller automatically and without
notice to or action by or on behalf of the Purchaser the right to
remove the Receivable or Receivables (and the related Collateral
Security and other rights associated therewith) from the operation of
this Agreement in the manner prescribed in subsection (b) below:
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(b) To accept such offer and remove such in Receivables, the
Seller (or the Servicer on its behalf) shall, on behalf of the
Purchaser, pay to the Trustee on or before the Removal Date for deposit
into the Collection Account an amount at least equal to the outstanding
principal balance of such removed Receivables together with interest
accrued thereon to the Removal Date.
Upon each such removal from this Agreement, the Seller
represents and covenants that the removal will not, in the reasonable
belief of the Seller, cause an Early Amortization Event to occur.
ARTICLE IV
Delayed Amendments Relating to the Addition of Accounts
SECTION 4.01. Amendments Relating to the Automatic Addition of
Accounts. Subsections (ii) and (v) of Section 2.04 (b) and Section 2.04 (d) of
the Original Receivables Purchase Agreement are hereby amended, effective on the
day after the Series 1994-1 Final Payment Date, to read in their entirety,
respectively, as follows:
Section 2.04(b)(ii) is hereby amended to read:
(ii) Such Additional Accounts shall all be Eligible
Accounts and, unless the Account is being added pursuant to
the Automatic Addition Condition set forth in subsection (g)
of Section 2.05 of the Pooling and Servicing Agreement, the
Rating Agency Condition shall have been satisfied;
Section 2.04(b)(v) is hereby amended to read:
(v) (A) No selection procedures reasonably believed
by the Seller to be adverse to the interests of the Purchaser
or the Beneficiaries were used in selecting such Additional
Accounts; (B) the list of Additional Accounts delivered
pursuant to clause (iii) above is true and correct in all
material respects as of the Additional Cut-Off Date and (C) as
of each of the Notice Date and the Addition Date, neither the
Seller, the Purchaser nor the Servicer are insolvent nor will
have been made insolvent by such transfer nor are aware of any
pending insolvency;
ARTICLE V
Delayed Amendments Relating to Covenants of the Seller
SECTION 5.01. Amendments Relating to Liens. Section 2.05(a) of
the Original Receivables Purchase Agreement is hereby amended, effective on the
day after the Series 1994-1 Final Payment Date, to read in its entirety, as
follows:
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(a) No Liens. Except for (i) the conveyances hereunder, (ii)
any Participation Interest granted pursuant to a Participation
Agreement, (iii) the sale, assignment or transfer to a third party of
Receivables, the Collateral Security and other associated rights
removed from the Trust pursuant to the terms of the Pooling and
Servicing Agreement and (iv) any tax liens and certain other statutory
liens (including liens in favor of the Pension Benefit Guaranty
Corporation), the Seller will not sell, pledge, assign or transfer to
any other Person, or grant, create, incur, assume or suffer to exist
any Lien on, any Receivable or any Collateral Security, whether now
existing or hereafter created, or any interest therein, and the Seller
shall defend the right, title and interest of the Purchaser and the
Trust in, to and under the Receivables and the Collateral Security,
whether now existing or hereafter created, against all claims of third
parties claiming through or under the Seller.
SECTION 5.02. Amendments Relating to Delivery of Collections.
Section 2.05(d) of the Original Receivables Purchase Agreement is hereby
amended, effective on the day after the Series 1994-1 Final Payment Date, to
read in its entirety, as follows:
(d) Delivery of Collections. In the event that the Seller
receives Collections, the Seller agrees to pay the Servicer or any
Successor Servicer all payments received by the Seller in respect of
the Receivables with respect to any Account as soon as practicable
after receipt thereof by the Seller, but in no event later than two (2)
Business Days after the receipt by the Seller thereof. Receipt by the
Seller's Affiliates of payments in respect of Asset-Based Receivables
shall be deemed to be received by the Seller upon receipt by such
Affiliates.
ARTICLE VI
Delayed Amendment Relating to Repurchase Agreements
SECTION 6.01. Addition of Provision Relating to Repurchase
Agreements. The following new section shall, effective on the day after the
Series 1994-1 Final Payment Date, be added to Article II of the Receivables
Purchase Agreement:
SECTION 2.09. Provisions Relating to Repurchase Agreements.
The Seller and Purchaser agree that, with respect to the Repurchase
Agreements, the rights under such Repurchase Agreements and the
recoveries thereunder which are conveyed by the Seller to the Purchaser
pursuant to the terms of this Agreement shall only be those rights and
recoveries which relate to Receivables conveyed hereunder and the
Collateral Security which secures such Receivables. To the extent that
any of such Repurchase Agreements also relate to obligations due to the
Seller which are not Receivables conveyed to the Purchaser hereunder
and any collateral security or other associated rights, any rights
under such Repurchase Agreement related to such non-conveyed
obligations, collateral security and other associated rights, shall
remain with the Seller and any recoveries under such Repurchase
Agreement, to the extent that such recoveries related to such
non-conveyed obligations, collateral security and other associated
rights shall be the property of the Seller and are not conveyed to the
Purchaser hereunder and, to the extent the Purchaser collects amounts
under a Repurchase Agreement which amounts relate to such non-conveyed
obligations, collateral security and other associated rights, the
Purchaser shall pay such
10
amount to the Seller. In addition, if a Repurchase Agreement or an
interest therein has been conveyed to the Purchaser in connection with
a Receivable or Receivables conveyed hereunder and such Receivable or
Receivables or a Participation Interest therein have been repurchased
or otherwise removed from the Trust and from this Agreement, to the
extent such Repurchase Agreement related to such removed Receivable or
Removed Participation Interest (and any related Collateral Security or
other associated rights), provided the Receivable or Removed
Participation Interest was removed in compliance with the terms hereof
and of the Pooling and Servicing Agreement, then the rights in any
Repurchase Agreement to the extent they related to such removed
Receivables or Removed Participation Interest (and any related
Collateral Security or other associated rights), shall revert to the
Seller. All representations and warranties of the Seller hereunder with
respect to any such Repurchase Agreements shall relate only to the
interest in such agreements which relates to the Receivables conveyed
to the Purchaser hereunder.
ARTICLE VII
Current Amendment Relating to Amendments
SECTION 7.01. Amendment to Provisions Relating to Amendment of
the Receivables Purchase Agreement. Section 8.01(a) of the Original Receivables
Purchase 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 8.01. Amendment. (a) This Agreement may be amended
from time to time by the Seller and the Purchaser; provided, however,
that such action shall not adversely affect in any material respect the
interests of any Investor Certificateholder or the Holder of the
Variable Funding Certificate; provided, however, that any amendment to
this Agreement in order to conform to the description of the
Certificates and the Receivables and other matters set forth in the
Registration Statement filed by the Purchaser with the Securities and
Exchange Commission relating to the Series 1994-1 Certificates, as such
Registration Statement was in effect on the date of issuance of the
Series 1994-1 Certificates, shall not be deemed to adversely affect the
interests of any Certificateholder or the Holder of the Variable
Funding Certificate if (i) such amendment shall be confined to an
amendment of the terms of the Series 1994-1 Certificates or matters
which affect only the Series 1994-1 Certificates and does not
materially adversely affect any other Series of Certificates and (ii)
such amendment is conditioned upon the delivery to the Trustee of an
Opinion of Counsel to the effect that such amendment is confined to
matters affecting the Series 1994-1 Certificates and will not cause the
Registration Statement filed with respect to any other Series to be
inaccurate in any material respect with respect to the description of
the terms of this Agreement after such amendment. Notwithstanding any
other provision of this Agreement or of the Pooling and Servicing
Agreement, the Servicer and the Purchaser may, without the consent of
any of the Certificateholders, any Enhancement Providers, any Rating
Agency or any other Person, amend Section 2.06 of this Agreement, at
any time, to conform to the terms of such Section as set forth in this
Agreement prior to the amendment thereof contained in Amendment Number
1 dated as of January 1, 1997 to the Receivables Purchase Agreement
(and make any other conforming changes to other applicable provisions
of this Receivables Purchase Agreement and any Exhibits hereto
11
which were amended to conform to the amendments made to Section 2.06 by
such Amendment Number 1) if Section 2.07 of the Pooling and Servicing
Agreement is amended to conform to the terms of such section as set
forth in the Pooling and Servicing Agreement prior to the amendments
contained in Amendment Number 1 dated as of January 1, 1997 to the
Pooling and Servicing Agreement.
SECTION 7.02. Amendment to Provisions Relating to Consent of
Enhancement Provider to Amendment of the Receivables Purchase Agreement. Section
8.01(e) of the Original Receivables Purchase 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:
(e) Notwithstanding anything in this Section 8.01 to the
contrary, (except for amendments referred to in the last sentence of
Section 8.01(a) of this Agreement for which amendments no consent of
any Enhancement Provider shall be required) no amendment may be made to
this Agreement which would adversely affect in any material respect the
interests of any Enhancement Provider without the consent of such
Enhancement Provider.
SECTION 7.03. Amendments to Exhibit D-2. Paragraph 6 in
Exhibit D-2 to the Original Receivables Purchase 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 2.07 of the Receivables Purchase
Agreement, the obligation of the Purchaser to execute and deliver this
Reassignment is subject to the Seller having delivered on or prior to
the Removal Commencement Date to the Purchaser, any Agent, and any
Enhancement Providers an Officers' Certificate certifying that (a) as
of the Removal Commencement Date, all requirements set forth in Section
2.08 of the Agreement for removing such Ineligible Accounts and
reconveying the Receivables of such Ineligible Accounts and the
Collateral Security created from time to time until the Removal
Termination Date, have been satisfied, and (ii) each of the
representations and warranties made by the Seller in Section 5 hereof
is true and correct as of the date of this Reassignment and as of the
Removal Commencement Date. The Purchaser may conclusively rely on such
Officers' Certificate, shall have no duty to make inquiries with regard
to the matters set forth therein and shall incur no liability in so
relying.
ARTICLE VIII
Current Amendments to Exhibits
SECTION 8.01. Amendments to Exhibit A. Exhibit A to the
Original Receivables Repurchase Agreement is hereby amended, effective on the
date of execution and delivery of this Amendment by all of the parties hereto as
specified on the signature page hereto, in the following respects:
Provision 5(b) is hereby amended to read:
12
(b) Organization and Good Standing. The Seller is a
corporation duly organized and validly existing and in good standing
under the law of the state of its incorporation and has, in all
material respects, full corporate power, authority and legal right to
own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Assignment.
Provision 5(m) is hereby amended to read:
(m) No Liens. Each Receivable and all Collateral Security
existing on the Addition Date has been conveyed to the Purchaser free
and clear of any Lien, except for Liens permitted under Section 2.06(a)
of the Pooling and Servicing Agreement and tax and certain other
statutory liens (including liens in favor of the Pension Benefit
Guaranty Corporation);
SECTION 8.02. Amendments to Exhibit D-1. Exhibit D-1 to the
Original Receivables Repurchase Agreement is hereby amended, effective on the
date of execution and delivery of this Amendment by all 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 8.03. Amendments to Exhibit D-2. Exhibit D-2 to the
Original Receivables Agreement is hereby amended, effective on the date of
execution and delivery of this Amendment by all of the parties hereto as
specified on the signature page hereto, in the following respect:
Provision 3(a) is hereby amended to read:
3. Conveyance of Receivables and Accounts. (a) The
Purchaser does hereby transfer, assign, set over and otherwise convey
to the Seller, without recourse, representation or warranty on and
after the Removal Commencement Date, all right, title and interest of
the Trust and the Purchaser in, to and under (x) all Receivables
created from time to time on and after the Removal Commencement Date
until the Removal Termination Date in the Ineligible Accounts
designated hereby, any rights under any Repurchase Agreement with
respect to such Receivables and the Collateral Security in respect
thereof, all monies due or to become due and all amounts received with
respect thereto (including all Non-Principal Receivables) and all
proceeds thereof (as defined in Section 9-306 of the UCC as in effect
in the State of Vermont) and Recoveries thereof relating thereto and
(y) on the Removal Termination Date, all Collateral Security in
connection with such Ineligible Accounts and all proceeds thereof (as
defined in Section 9-306 of the UCC as in effect in the State of
Vermont) and Recoveries relating thereto.
13
ARTICLE IX
Miscellaneous
SECTION 9.01. 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 9.02. Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
14
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
this Amendment Number 1 to the Receivables Purchase Agreement to be duly
executed by their respective officers as of the day and year specified on the
signature page hereof.
The date of execution and delivery of this Amendment Number 1
is January 23, 1997.
BOMBARDIER CREDIT RECEIVABLES
CORPORATION, Purchaser
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., Seller
By: /s/ Blaine Filthaut
-------------------------------------
Name: Blaine Filthaut
Title: Vice President and Treasurer
By: /s/ Andrew Baranowsky
-------------------------------------
Name: Andrew Baranowsky
Title: Assistant Treasurer
15
EXHIBIT A
TO AMENDMENT No. 1
TO RECEIVABLES
PURCHASE AGREEMENT
EXHIBIT D-1
TO RECEIVABLES PURCHASE AGREEMENT
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(As required by Section 2.06 of the
Receivables Purchase Agreement referred to below)
REASSIGNMENT NO. _______ OF RECEIVABLES,
dated as of _______________, ____
by and between BOMBARDIER CREDIT RECEIVABLES CORPORATION,
as purchaser (the "Purchaser"), and
BOMBARDIER CAPITAL INC., as seller (the "Seller")
pursuant to the Receivables Purchase Agreement
referred to below.
WITNESSETH
WHEREAS the Seller and the Purchaser are parties to the
Receivables Purchase Agreement dated as of January 1, 1994 (as amended or
supplemented, the "Receivables Purchase Agreement");
WHEREAS, pursuant to Section 2.06 of the Receivables Purchase
Agreement, the Seller wishes to remove all Receivables from certain Accounts and
the Collateral Security in respect thereof (the "Removed Accounts") and to cause
the Purchaser to reconvey the Receivables of such Removed Accounts and such
Collateral Security, whether now existing or hereafter created, and all amounts
currently held by the Purchaser or thereafter received by the Trust in respect
of such Removed Accounts, from the Purchaser to the Seller (as each such term is
defined in the Agreement); and
WHEREAS the Purchaser, is willing to accept such removal and
to reconvey the Receivables in the Removed Accounts, such Collateral Security
and any related amounts held or received by the Trust subject to the terms and
conditions hereof.
NOW, THEREFORE, the Seller and the Purchaser hereby agree as
follows:
1. Defined Terms. All terms defined in the Receivables Purchase Agreement and
used herein shall have such defined meanings when used herein, unless otherwise
defined herein.
A-1-1
"Removal Date" shall mean, with respect to the Removed
Accounts designated hereby, _________ __, ____.
2. Notice of Removed Accounts. (a) Not less than five Business
Days prior to the Removal Commencement Date, the Seller shall furnish to the
Purchaser, 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 Seller 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 Purchaser
does hereby transfer, assign, set over and otherwise convey to the Seller,
without recourse, representation or warranty on and after the Removal
Commencement Date, all right, title and interest of the Trust in, to and under
(x) all Receivables created from time to time on and after the Removal
Commencement Date until the Removal Termination Date in the 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 Seller, in connection with such
transfer, the Purchaser agrees to execute and deliver to the Seller on or prior
to the date of this Reassignment, a termination statement with respect to the
Receivables created from time to time on and after the Removal Commencement Date
in the Removed Accounts reassigned hereby (which may be a single termination
statement with respect to all such Receivables and Collateral Security)
evidencing the release by the Trust of its lien on the Receivables in the
Removed Accounts and the Collateral Security with respect thereto, and meeting
the requirements of applicable state law, in such manner and such jurisdictions
as are necessary to remove such lien.
4. Acceptance by Purchaser. The Purchaser hereby acknowledges
that, prior to or simultaneously with the execution and delivery of this
Reassignment, the Seller delivered to the Purchaser the computer file or such
microfiche or written list described in Section 2(b) of this Reassignment.
5. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Purchaser as of the date of this
Reassignment and as of the Removal Commencement Date:
A-1-2
(a) Legal Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights
generally and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity)
and the availability of equitable remedies;
(b) No Early Amortization Event. The removal of the Accounts
hereby removed shall not, in the reasonable belief of the Seller, cause
an Early Amortization Event to occur or cause the Pool Balance to be
less than the Required Pool Balance;
(c) Selection Procedures. No selection procedures reasonably
believed by the Seller to be adverse to the interests of the
Beneficiaries were utilized in selecting the Accounts to be removed;
and
(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.
6. Condition Precedent. In addition to the conditions
precedent set forth in Section 2.06 of the Receivables Purchaser Agreement, the
obligation of the Purchaser to execute and deliver this Reassignment is subject
to the Seller having delivered on or prior to the Removal Commencement Date to
the Purchaser, 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 2.06 of the Receivables Purchase 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 Seller in Section 5 hereof is true and correct as of the date of
this Reassignment and as of the Removal Commencement Date. The Purchaser and 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 Receivables Purchase Agreement. As
supplemented by this Reassignment, the Receivables Purchase Agreement is in all
respects ratified and confirmed and the Receivables Purchase Agreement as so
supplemented by this Reassignment shall be read, taken and construed as one and
the same instrument.
8. Counterparts. This Reassignment may be executed in two or
more counterparts, and by different parties on separate counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-1-3
IN WITNESS WHEREOF, the undersigned have caused this
Reassignment to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
BOMBARDIER RECEIVABLES MASTER TRUST I
By: BANKERS TRUST COMPANY, Trustee
By:
-----------------------------
Name:
------------------------
Title:
------------------------
BOMBARDIER CREDIT RECEIVABLES
CORPORATION, Depositor
By:
-----------------------------
Name:
------------------------
Title:
------------------------
By:
-----------------------------
Name:
------------------------
Title:
------------------------
A-1-4