<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
F O R M 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 23, 1997
Bombardier Receivables Master Trust I
(Issuer with respect to Certificates)
Bombardier Credit Receivables Corporation
(Originator of the Trust described herein)
- -------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
333-14431 and 333-14431-01 03-0340600
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(Commission File Numbers) (IRS Employer Identification No.)
P.O. Box 5544 Burlington, Vermont 05402
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(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (802) 655-2824
N/A
- -------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE> 2
Item 5. Other Events.
On January 23, 1997, Bombardier Credit Receivables Corporation
("BCRC") issued its Floating Rate Class A Asset Backed Certificates, Series
1997-1 and its Floating Rate Class B Asset Backed Certificates, Series 1997-1
such series representing undivided interests in certain assets of the
Bombardier Receivables Master Trust I (the "Trust"). Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to them in
the prospectus dated January 15, 1997 (the "Prospectus").
The Class A Certificates evidence undivided beneficial
interests in the assets of the Trust and represent the right to receive from
distributions in respect of such assets funds up to (but not in excess of) the
amounts required (i) to make monthly payments of interest on the principal
balance of the Class A Certificates at the Class A Certificate Rate and (ii) to
make monthly payments of principal beginning not later than the November 2001
Distribution Date in an aggregate amount equal to the outstanding principal
balance of the Class A Certificates. The Class B Certificates evidence
undivided beneficial interests in the assets of the Trust and represent the
right to receive from distributions in respect of such assets funds up to (but
not in excess of) the amounts required (i) to make monthly payments of interest
on the principal balance of the Class B Certificates at the Class B Certificate
Rate and (ii) to make payment of principal no later than the April 2002
Distribution Date in an amount up to the outstanding principal balance of the
Class B Certificates. The rights of the Class B Certificates to distribution
of principal are subordinated to the rights of the Class A Certificates to the
extent described in the Prospectus. The Trust assets include a pool of
receivables generated from time to time in a portfolio consisting of revolving
financing arrangements with certain dealers located in the United States to
finance such dealers' consumer, recreational and commercial product inventory
and, in the future, may include certain other accounts as described in the
Prospectus.
<PAGE> 3
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
The following are filed herewith. The exhibit numbers
correspond with Item 601(b) of Regulation S-K.
<TABLE>
<CAPTION>
Exhibit No. Description
--------------------------------------------------------------------------
<S> <C>
4 Series 1997-1 Supplement dated as of January 1, 1997 to the Pooling and Servicing Agreement, as
amended, dated as of January 1, 1994, each among BCRC, as Depositor, Bombardier Capital Inc.
("BCI"), as Servicer, and Bankers Trust Company, as trustee (the "Trustee").
4 Amendment Number 1 dated as of January 1, 1997 to the Pooling and Servicing Agreement, as amended,
dated as of January 1, 1994, each among BCRC, BCI and the Trustee.
4 Amendment Number 1 dated as of January 1, 1997 to the Receivables Purchase Agreement dated as of
January 1, 1994, each between BCRC and BCI.
4 Amendment Number 1 dated as of January 1, 1997 to the Variable Funding Supplement dated as of
January 1, 1994 to the Pooling and Servicing Agreement, as amended, dated as of January 1, 1994,
each among BCRC, BCI and the Trustee.
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
BOMBARDIER CREDIT RECEIVABLES
CORPORATION
By: /s/ Blaine Filthaut
-----------------------
Name: Blaine Filthaut
Title: Vice President
and Treasurer
By: /s/ William P. Brady
-----------------------
Name: William P. Brady
Title: Vice President
Dated: January 23, 1997
<PAGE> 5
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C>
4.1 Series 1997-1 Supplement dated as
of January 1, 1997 to the Pooling
and Servicing Agreement, as amended,
dated as of January 1, 1994, each
among BCRC, as Depositor, BCI, as
Servicer, and the Trustee.
4.2 Amendment Number 1 dated as of January
1, 1997 to the Pooling and Servicing
Agreement, as amended, dated as of
January 1, 1994 each among BCRC, BCI
and the Trustee.
4.3 Amendment Number 1 dated as of January
1, 1997 to the Receivables Purchase
Agreement dated as of January 1, 1994,
each between BCRC and BCI.
4.4 Amendment Number 1 dated as of January
1, 1997 to the Variable Funding
Supplement dated as of January 1, 1994
to the Pooling and Servicing Agreement,
as amended, dated as of January 1, 1994,
each among BCRC, BCI and the Trustee.
</TABLE>
<PAGE> 1
EXECUTION COPY
================================================================================
BOMBARDIER CREDIT RECEIVABLES CORPORATION,
Depositor,
BOMBARDIER CAPITAL INC.,
Servicer,
and
BANKERS TRUST COMPANY,
Trustee
________________________________________
SERIES 1997-1 SUPPLEMENT
Dated as of January 1, 1997
to
POOLING AND SERVICING AGREEMENT
Dated as of January 1, 1994
________________________________________
BOMBARDIER RECEIVABLES MASTER TRUST I
SERIES 1997-1
$400,000,000 Class A Certificates
$27,125,000 Class B Certificates
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I
<S> <C> <C>
Creation of the Series 1997-1 Certificates Page
------------------------------------------ ----
SECTION 1.01. Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
Definitions and Interpretive Provisions
---------------------------------------
SECTION 2.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2.02. Interpretive Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.03. Transitional Provisions Relating to Series 1994-1 Final Payment Date . . . . . . . . . . . . . . . 17
ARTICLE III
Servicing Fee
-------------
SECTION 3.01. Servicing Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE IV
Rights of Certificateholders and
Allocation and Application of Collections
-----------------------------------------
SECTION 4.01A. Allocations; Payments to Holder(s) of the BCRC Certificate and any Supplemental Certificate(s) . 18
SECTION 4.01B. Collections and Allocations for Series 1997-1 . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.02. Monthly Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.03. Determination of Monthly Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.04. Establishment of Reserve Fund and Excess Funding Account . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.05. Deficiency Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.06. Application of Investor Non-Principal Collections, Investment Proceeds and Available Investor
Principal Collections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.07. Application of Reserve Fund and Available Subordinated Amount . . . . . . . . . . . . . . . . . . 28
SECTION 4.08. Investor Charge-Offs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.09. Excess Servicing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
</TABLE>
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<TABLE>
Page
----
<S> <C> <C>
SECTION 4.10. Principal Collections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.11. Excess Funding Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.12. Initial Principal Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE V
Distributions and Reports to
Series 1997-1 Certificateholders
--------------------------------
SECTION 5.01. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.02. Reports and Statements to Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE VI
Early Amortization Events
-------------------------
SECTION 6.01. Additional Early Amortization Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VII
Optional Repurchase
-------------------
SECTION 7.01. Optional Repurchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VIII
Final Distributions
-------------------
SECTION 8.01. Sale of Certificates Pursuant to Section 2.03 of the Agreement; Distributions Pursuant to
Section 7.01 of this Series Supplement or Section 2.03 or 12.02(c) of the Agreement . . . . . . . . 37
SECTION 8.02. Distribution of Proceeds of Sale, Disposition or Liquidation of the Receivables Pursuant
to Section 9.02 of the Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE IX
Miscellaneous Provisions
------------------------
SECTION 9.01. Ratification of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 9.02. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
</TABLE>
ii
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<TABLE>
Page
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<S> <C> <C>
SECTION 9.03. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 9.04. Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
EXHIBITS AND SCHEDULES
Exhibit A Form of Class A Certificates
Exhibit B Form of Class B Certificates
Exhibit C Form of Distribution Date Statement
Schedule 1 List of Series 1997-1 Accounts
</TABLE>
iii
<PAGE> 5
SERIES 1997-1 SUPPLEMENT dated as of January 1, 1997 (the
"Series Supplement"), 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.
Pursuant to Section 6.03 of the Pooling and Servicing
Agreement dated as of January 1, 1994 (as amended and supplemented, the
"Agreement"), among the Depositor, the Servicer and the Trustee, the Depositor
may from time to time direct the Trustee to issue, on behalf of the Trust, one
or more new Series of Investor Certificates representing fractional undivided
interests in the Trust. The Principal Terms of any new Series are to be set
forth in a Supplement to the Agreement.
Pursuant to this Series Supplement, the Depositor and the
Trustee shall create a new Series of Investor Certificates and specify the
Principal Terms thereof.
ARTICLE I
Creation of the Series 1997-1 Certificates
SECTION 1.01. Designation.
(a) There is hereby created a Series of Investor
Certificates to be issued pursuant to the Agreement and this Series Supplement
to be known as the "Series 1997-1 Certificates." The Series 1997-1
Certificates will consist of two classes of beneficial ownership interests
entitled "Class A Certificates" and "Class B Certificates." The Class A
Certificates shall be substantially in the form of Exhibit A and the Class B
Certificates shall be substantially in the form of Exhibit B.
(b) In the event that any term or provision contained
herein shall conflict with or be inconsistent with any term or provision
contained in the Agreement, the terms and provisions of this Series Supplement
shall govern.
ARTICLE II
Definitions and Interpretive Provisions
SECTION 2.01. Definitions. Whenever used in this Series
Supplement, the following words and phrases shall have the following meanings.
"Additional Interest" shall mean with respect to any
Distribution Date, the sum of Class A Additional Interest, if any, or Class B
Additional Interest, if any.
"Adjusted Invested Amount" shall mean on any date of
determination an amount equal to (a) the Initial Principal Amount plus (b) the
amount of any withdrawals from
<PAGE> 6
the Excess Funding Account pursuant to Section 4.11(b) or (c) hereof in
connection with an increase in the Pool Balance, and less (c) the amount of any
additions to the Excess Funding Account pursuant to Section 4.01(B)(b)(i),
4.01(B)(b)(ii), 4.06(b)(i), 4.06(b)(ii) or 4.06(d)(iii) hereof in connection
with a reduction in the Pool Balance.
"Adjusted Series 1997-1 Allocation Percentage" for a
Collection Period shall mean the percentage derived from the fraction the
numerator of which is the Invested Amount on the last Business Day preceding
such Collection Period and the denominator of which is the sum of the Pool
Invested Amount and the Variable Funding Amount on the last Business Day
preceding such Collection Period.
"Adjustment Date" shall mean the second London Business Day
preceding the first day of the related Interest Period.
"Allocable Miscellaneous Payments" shall mean, with respect
to any Distribution Date, the product of (a) the Series 1997-1 Investor
Allocation Percentage for the related Collection Period and (b) Miscellaneous
Payments with respect to the related Collection Period.
"Amortization Period" shall mean, unless an Early
Amortization Period or an Initial Amortization Period shall have commenced
prior thereto (other than an Early Amortization Period which has ended as
described in clause (c) of the definition thereof), the period commencing on
October 1, 2001, and ending upon the first to occur of (a) the commencement of
an Early Amortization Period or an Initial Amortization Period, (b) the payment
in full to Series 1997-1 Certificateholders of the principal balance of the
Series 1997-1 Certificates and (c) the Series 1997-1 Termination Date.
"Available Investor Principal Collections" shall mean, with
respect to any Distribution Date, the sum of:
(a) the product of (i) the Floating Allocation Percentage,
with respect to the Revolving Period, or the Principal Allocation
Percentage, with respect to the Amortization Period, any Early
Amortization Period or any Initial Amortization Period, for the
related Collection Period and (ii) Principal Collections received by
the Servicer during the related Collection Period; plus
(b) the amount, if any, of Investor Non-Principal
Collections, funds in the Reserve Fund and Series 1997-1 Available
Retained Collections applied in respect of the Investor Default
Amount, any unpaid Adjustment Payments allocated to the Certificates
or previously unreimbursed Investor Charge-Offs; plus
(c) Allocable Miscellaneous Payments with respect to such
Distribution Date; plus
2
<PAGE> 7
(d) Series 1997-1 Excess Principal Collections on deposit
in the Collection Account for such Distribution Date; plus
(e) if an Early Amortization Period or an Initial
Amortization Period began during the related Collection Period, all
funds on deposit in the Excess Funding Account; plus
(f) on the Series 1997-1 Termination Date, any funds in
the Reserve Fund after giving effect to Section 4.07 hereof.
provided, however, that in the case of clause (a), if for any date the
sum of the Floating Allocation Percentage (if the Revolving Period is
in effect), the Principal Allocation Percentage (if the Early
Amortization Period, Initial Amortization Period or the Amortization
Period is in effect), the floating allocation percentages for all
other outstanding Series of Investor Certificates in their revolving
periods and the principal allocation percentages for all other
outstanding Series of Certificates in their early amortization or
amortization periods exceeds 100%, then Principal Collections shall be
allocated among such Series (including the Certificates) pro rata on
the basis of such floating allocation percentages and principal
allocation percentages.
"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.
"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 the related Collection Period (or,
after the Series 1994-1 Final Payment Date, for such Deposit Date) over (ii)
the Excess Retained Percentage for such Collection Period (or, after the Series
1994-1 Final Payment Date, 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 the related
Collection Period (or, after the Series 1994-1 Final Payment Date, for such
Deposit Date) over (ii) the Excess Retained Percentage for such Collection
Period (or, after the Series 1994-1 Final Payment Date, for such Deposit Date)
by (b) Principal Collections for such Deposit Date.
"Available Subordinated Amount" for any date of
determination during the period from the Closing Date through the first
Distribution Date shall mean an amount equal to the Required Subordinated
Amount on such date of determination. The Available Subordinated Amount for
any subsequent date of determination shall mean an amount equal to the sum of:
3
<PAGE> 8
(i) the lesser
(x) the Available Subordinated Amount for the
preceding Distribution Date, minus
(A) the Required Subordination Draw
Amount with respect to such preceding
Distribution Date or, if such date of
determination is a Distribution Date,
with respect to such Distribution Date,
to the extent provided in Section 4.07(b)
hereof, minus
(B) the amount of any deposits in the
Reserve Fund from Series 1997-1 Available
Retained Collections pursuant to Section
4.07 hereof for the purpose of
reimbursing any withdrawals from the
Reserve Fund applied to cover any portion
of the Investor Default Amount on such
preceding Distribution Date or, if such
date of determination is a Distribution
Date, with respect to such Distribution
Date (but excluding any other deposits to
the Reserve Fund from Series 1997-1
Available Retained Collections), minus
(C) an amount equal to the Defaulted
Amount for the immediately preceding
Collection Period multiplied by a
fraction, the numerator of which is the
Available Subordinated Amount as of the
close of business on the last day of the
preceding Collection Period (or in the
case of the first Distribution Date, the
Required Subordinated Amount as of the
Closing Date) and the denominator of
which is the Pool Balance as of the close
of business on the last day of the
preceding Collection Period (or in the
period from the Closing Date through the
first Distribution Date, the Pool Balance
as of the Closing Date), plus
(D) the aggregate amount of Excess
Servicing paid to the Holder of the BCRC
Certificate or to the Holder of any
Supplemental Certificate(s) pursuant to
Section 4.09(c) hereof on the preceding
Distribution Date, minus
(E) the Incremental Subordinated Amount
for the second preceding Distribution
Date, or if such date of determination is
a Distribution Date, the preceding
Distribution Date, plus
4
<PAGE> 9
(F) the Incremental Subordinated Amount
for the immediately preceding
Distribution Date, or if such date of
determination is a Distribution Date,
such Distribution Date, plus
(G) the Subordinated Percentage
multiplied by the aggregate amount of any
increases in the Invested Amount
resulting from any withdrawals from the
Excess Funding Account since the
preceding Distribution Date; and
(y) the Required Subordinated Amount for such
date of determination; plus
(ii) the amount of any optional increase in the Available
Subordinated Amount exercised by the Holder of the
BCRC Certificate pursuant to Section 4.07(b) hereof;
provided, however, that if the Required Subordination Draw Amount
exceeds Available Retained Collections for any Distribution Date, the
Available Subordinated Amount shall be further reduced by an amount
equal to the sum of (A) the amount of such excess (but not by more
than the Investor Default Amount for such Distribution Date) and (B)
the amount of unpaid Adjustment Payments allocated to the Certificates
as described in Section 4.05(a)(vi) hereof.
"Calculation Agent" shall mean the Trustee or any other
Calculation Agent selected by the Depositor which is reasonably acceptable to
the Trustee.
"Certificateholders" shall mean the Holders of the
Certificates.
"Certificates" shall mean, collectively, Class A
Certificates and Class B Certificates.
"Class A Additional Interest" shall have the meaning
specified in Section 4.02(a) hereof.
"Class A Amortization Date" shall mean each Distribution
Date with respect to the Amortization Period.
"Class A Amortization Period Length" means six months.
"Class A Carry-Over Amount" shall mean, with respect to
Class A Certificates and for any Distribution Date with respect to which the
Class A Certificate Rate is calculated on the basis of the Net Receivables
Rate, the excess of (a) the Class A Monthly Interest for such Distribution Date
determined as if such Class A Certificate Rate were calculated on the basis of
the LIBOR formula set forth in clause (a) of the definition of Class A
Certificate Rate over (b) the actual Class A Monthly Interest for such
Distribution Date.
5
<PAGE> 10
"Class A Certificate" shall mean any one of the
certificates executed and authenticated by the Trustee, substantially in the
form of Exhibit A hereto.
"Class A Certificate Rate" shall mean, with respect to any
Interest Period, the lesser of (a) the sum of (i) LIBOR and (ii) 0.12% per
annum and (b) the Net Receivables Rate for the Adjustment Date immediately
preceding such Interest Period.
"Class A Controlled Amortization Amount" shall mean, with
respect to any Class A Amortization Date, an amount equal to the principal
balance of the Class A Certificates as of the October 2001 Distribution Date
divided by the number of months comprising the Class A Amortization Period
Length.
"Class A Controlled Distribution Amount" shall mean, with
respect to any Class A Amortization Date, the Class A Controlled Amortization
Amount plus any Class A Controlled Amortization Amounts that were not paid on
any previous Class A Amortization Date.
"Class A Expected Final Payment Date" shall mean the April
2002 Distribution Date.
"Class A Interest Shortfall" shall have the meaning
specified in Section 4.02(a) hereof.
"Class A Monthly Interest" shall have the meaning specified
in Section 4.02(a) hereof.
"Class B Additional Interest" shall have the meaning
specified in Section 4.02(b) hereof.
"Class B Carry-Over Amount" shall mean, with respect to
Class B Certificates and for any Distribution Date with respect to which Class
B Certificate Rate is calculated on the basis of the Net Receivables Rate, the
excess of (a) the Class B Monthly Interest for such Distribution Date
determined as if such Class B Certificate Rate were calculated on the basis of
the LIBOR formula set forth in clause (a) of the definition of Class B
Certificate Rate over (b) the actual Class B Monthly Interest for such
Distribution Date.
"Class B Certificate" shall mean any one of the
certificates executed and authenticated by the Trustee, substantially in the
form of Exhibit B hereto.
"Class B Certificate Rate" shall mean, with respect to any
Interest Period, the lesser of (a) the sum of (i) LIBOR and (ii) 0.33% per
annum and (b) the Net Receivables Rate for the Adjustment Date immediately
preceding such Interest Period.
"Class B Expected Payment Date" shall mean the April 2002
Distribution Date.
6
<PAGE> 11
"Class B Interest Shortfall" shall have the meaning
specified in Section 4.02(b) hereof.
"Class B Monthly Interest" shall have the meaning specified
in Section 4.02(b) hereof.
"Closing Date" shall mean January 23, 1997.
"Daily Allocation" shall have the meaning specified in
Section 4.01B(a)(i).
"Daily Principal Allocation" shall have the meaning
specified in Section 4.01B(b)(i), (ii) and (iii).
"Deficiency Amount" shall have the meaning specified in
Section 4.05 hereof.
"Designated Manufacturer Overconcentrations," on any
Distribution Date means the excess of (x) the aggregate amount of Eligible
Receivables created in connection with the financing of products manufactured
by the Designated Manufacturer which Eligible Receivables are included in the
Pool on the last day of the Collection Period immediately preceding such
Distribution Date over (y) 50% of the Pool Balance on the last day of such
immediately preceding Collection Period, where the "Designated Manufacturer"
is, collectively, Bombardier Inc. and its subsidiaries; provided, however, that
the percentage specified in clause (y) of this definition and the entities
included as Designated Manufacturer may be adjusted from time to time and no
such adjustment shall be deemed an amendment of the terms hereof, but shall be
an adjustment made in accordance with the terms hereof if, prior to each
adjustment, the Rating Agency Condition is satisfied for such adjustment.
"Distribution Date Statement" shall have the meaning
specified in Section 5.02(a) hereof.
"Early Amortization Event" shall mean any Early
Amortization Event specified in Section 9.01 of the Agreement, together with
any additional Early Amortization Event specified in Section 6.01 hereof.
"Effective Distribution Date" shall have the meaning
specified in Section 4.12 hereof.
"Excess Funded Amount," for any Distribution Date prior to
and including the Series 1994-1 Final Payment Date, shall mean an amount equal
to the product of (a) the excess, if any, of (i) the Required Pool Balance on
the day immediately prior to such Distribution Date over (ii) the Pool Balance
at the end of the preceding Collection Period and (b) a fraction the numerator
of which is the Series 1997-1 Required Balance and the denominator of which is
the aggregate of the required balances (including the Series 1997-1 Required
Balance) for all Series providing for excess funding accounts or similar
arrangements that are in their revolving periods.
7
<PAGE> 12
"Excess Funded Amount," for any date after the Series
1994-1 Final Payment Date, shall mean an amount equal to the product of (a) the
excess, if any, of (i) the Required Pool Balance as of the end of the
immediately preceding day over (ii) the Pool Balance as of the end of such
immediately preceding day and (b) a fraction the numerator of which is the
Series 1997-1 Required Balance and the denominator of which is the aggregate of
the required balances (including the Series 1997-1 Required Balance) for all
Series providing for excess funding amounts or similar arrangements that are in
their revolving periods or, if applicable, their amortization periods, all
calculated as of the end of the immediately preceding day.
"Excess Funding Account" shall have the meaning specified
in Section 4.04(b)(i) hereof.
"Excess Principal Collections" for all Series other than
Series 1997-1, shall have the meanings specified in the Supplements for such
Series and for Series 1997-1, shall have the meaning specified in Section
4.06(b)(i) or (ii) hereof.
"Excess Reserve Fund Required Amount" shall mean, for any
Distribution Date with respect to an Early Amortization Period, an amount equal
to the greater of (a) 5% of the Initial Principal Amount of the Certificates
and (b) the excess of (i) the Required Pool Balance (after giving effect to any
changes thereto on such Distribution Date) over (ii) the Pool Balance (after
giving effect to changes thereto on such Distribution Date); provided, however,
that the Excess Reserve Fund Required Amount shall in no event exceed the
Available Subordinated Amount for such Distribution Date.
"Excess Retained Percentage" prior to and including the
Series 1994-1 Final Payment Date shall mean for any Collection Period, (x) the
Retained Percentage for such Collection Period minus (y) the percentage
equivalent of a fraction the numerator of which is equal to the Pool Available
Subordinated Amount for the Distribution Date preceding such Collection Period
and the denominator of which is the Pool Balance at the end of the preceding
Collection Period and, after the Series 1994-1 Final Payment Date, Excess
Retained Percentage shall have the meaning assigned in the Agreement.
"Excess Servicing" for any Distribution Date shall mean the
amount, if any, specified pursuant to Section 4.06(a)(ix) hereof.
"Floating Allocation Percentage," prior to and including
the Series 1994-1 Final Payment Date, shall mean, with respect to any
Collection Period, the percentage equivalent (which percentage shall never
exceed 100%) of a fraction, the numerator of which is the Invested Amount as of
the last day of the immediately preceding Collection Period and the denominator
of which is the Pool Balance as of such last day; provided, however, that, with
respect to the first Collection Period, the Floating Allocation Percentage
shall mean the percentage equivalent of a fraction, the numerator of which is
the Invested Amount and the denominator of which is the Pool Balance on the
Series Cut-Off Date giving pro forma effect as of the Series Cut-Off Date to
the issuance of the Certificates; provided further, that for
8
<PAGE> 13
purposes of allocating Principal Collections, when calculating the Floating
Allocation Percentage, the Invested Amount shall be reduced by the
Pre-Allocated Investment Amount.
"Floating Allocation Percentage," after the Series 1994-1
Final Payment Date, shall mean, as of any day, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which is
the Invested Amount as of the close of business on the immediately preceding
day and the denominator of which is the Pool Balance as of the close of
business on such immediately preceding day.
"Incremental Subordinated Amount" shall mean, with respect
to any Distribution Date, the result obtained by multiplying (a) a fraction,
the numerator of which is the sum of the Invested Amount on the last day of the
immediately preceding Collection Period (or with respect to the first
Distribution Date, the Invested Amount on the Closing Date) and the Available
Subordinated Amount for such Distribution Date (calculated without subtracting
or adding the Incremental Subordinated Amount for such Distribution Date as
described in clause (x) of the definition of Available Subordinated Amount or
clause (b) of the definition of Required Subordinated Amount), and the
denominator of which is the Pool Balance on such last day by (b) the
Overconcentration Amount on such Distribution Date.
"Industry Overconcentrations" shall mean on any
Distribution Date the excess of (x) the aggregate amount of Eligible
Receivables created in connection with the financing of products manufactured
by manufacturing entities that are part of the same industry (i.e., producing
the same principal product, provided that products manufactured by Bombardier
Inc. and its Affiliates shall not be included in the calculation of Industry
Overconcentration), which Eligible Receivables are in the Pool on the last day
of the Collection Period immediately preceding such Distribution Date over (y)
an amount equal to 35% of the Pool Balance on the last day of such immediately
preceding Collection Period; provided, however, that with respect to each
industry specified below, the percentage in clause (y) of this definition shall
be deemed to equal the percentage set forth opposite such industry:
<TABLE>
<CAPTION>
Industry Percentage
-------------- ----------------
<S> <C>
Marine Products 45%
Recreational Vehicles 15%
Lawn and Garden 10%
Consumer Electronics and Appliances 10%
</TABLE>
provided further, that some or all of the percentages specified in this
definition of Industry Overconcentrations may be adjusted from time to time
without the consent of the Certificateholders and no such adjustment shall be
deemed an amendment of the terms hereof, but shall be an adjustment in
accordance with the terms hereof if prior to each adjustment the Rating Agency
Condition has been satisfied.
"Initial Amortization Period" shall mean, if BCI elects not
to extend the Initial Principal Payment Date, the period from the date the
notice that the Initial Principal Payment Date will not be extended is mailed
by the Trustee to the holders of the Certificates
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<PAGE> 14
(which date shall also be the end of the Revolving Period or, if the
Amortization Period is then in effect, the end of the Amortization Period)
until the Certificates have been paid in full.
"Initial Principal Amount" shall mean $427,125,000.
"Initial Principal Payment Date" shall mean the February
2000 Distribution Date; provided, that unless BCI elects not to extend the
Initial Principal Payment Date in accordance with the terms of Section 4.12,
the Initial Principal Payment Date shall be extended successively and
automatically from one Distribution Date to the next to, but not later than,
the Class A Expected Final Payment Date.
"Interest Period" shall mean, with respect to any
Distribution Date, the period from and including the Distribution Date
immediately preceding such Distribution Date (or, in the case of the first
Distribution Date, from and including the Closing Date) to but excluding such
Distribution Date.
"Invested Amount" shall mean, on any date of determination,
an amount equal to (a) the Adjusted Invested Amount, minus (b) the amount,
without duplication, of principal payments (except (i) principal payments made
from the Excess Funding Account and (ii) any transfers from the Excess Funding
Account to the Collection Account) made on the Certificates prior to such date,
minus (c) the excess, if any, of the aggregate amount of Investor Charge-Offs
over Investor Charge-Offs reimbursed pursuant to Section 4.08 hereof prior to
such date.
"Investment Proceeds" shall mean, with respect to any
Distribution Date, all interest and other investment earnings (net of losses
and investment expenses) on funds on deposit in the Series 1997-1 Accounts,
together with an amount equal to the Series 1997-1 Investor Allocation
Percentage of the net interest and other investment earnings on funds held in
the Collection Account credited as of such date to the Collection Account
pursuant to Section 4.02 of the Agreement.
"Investor Charge-Offs" shall have the meaning specified in
Section 4.08 hereof.
"Investor Default Amount" shall mean, with respect to any
Distribution Date, an amount equal to the sum of the product of (a) the
Defaulted Amount for each day of the related Collection Period and (b) the
Floating Allocation Percentage for each such day.
"Investor Non-Principal Collections" shall mean, with
respect to any Distribution Date, the sum for each Deposit Date in the related
Collection Period of an amount equal to the product of (i) the Floating
Allocation Percentage for each such Deposit Date and (ii) Non-Principal
Collections received by the Servicer on each such Deposit Date.
"LIBOR" shall mean, with respect to any Interest Period,
the offered rates for deposits in United States dollars having a maturity of
one month (the "Index Maturity") commencing on the related Adjustment Date
which appears on Telerate Page 3750 as of 11:00
10
<PAGE> 15
A.M., London time, on such date of calculation. If such rate does not appear
on Telerate Page 3750, LIBOR with respect to such Interest Period will be
determined at approximately 11:00 A.M., London time, on such Adjustment Date on
the basis of the rates at which deposits in United States dollars are offered
by four major banks in the London interbank market (selected by the Calculation
Agent) to prime banks in the London interbank market for a period equal to the
Index Maturity and in a principal amount equal to an amount of not less than
U.S. $1,000,000 and that is representative for a single transaction in such
market at such time. The Calculation Agent will request the principal London
office of each such bank to provide a quotation of its rate. If at least two
such quotations are provided, LIBOR will be the arithmetic mean (rounded
upwards or downwards, as the case may be, to the nearest whole multiple of
0.0625% per annum; provided, however, that any amount falling in the middle
shall be rounded up to the nearest whole multiple of 0.0625%) of such
quotations. If fewer than two quotations are provided, LIBOR with respect to
such Interest Period will be the arithmetic mean (rounded upwards or downwards
as aforesaid) of the rates quoted at approximately 11:00 A.M., New York City
time, on such Adjustment Date by three major banks in New York, New York
selected by the Calculation Agent for loans in United States dollars to leading
European banks having the Index Maturity and in a principal amount equal to an
amount of not less than U.S. $1,000,000 and that is representative for a
single transaction in such market at such time; provided, however, that if the
banks selected as aforesaid are not quoting as mentioned in this sentence,
LIBOR in effect for the applicable period will be LIBOR in effect for the
previous period.
"London Business Day" shall mean any day on which dealings
in deposits in United States dollars are transacted in the London interbank
market.
"Manufacturer Overconcentrations," on any Distribution Date
means the excess of (x) the aggregate amount of Eligible Receivables created in
connection with the financing of products manufactured by any single
manufacturing entity (other than the Designated Manufacturer described in the
definition of "Designated Manufacturer Overconcentrations"), which Eligible
Receivables are included in the Pool on the last day of the Collection Period
immediately preceding such Distribution Date over (y) 15% of the Pool Balance
on the last day of such immediately preceding Collection Period; provided, that
the percentage specified in clause (y) may be adjusted from time to time
without the consent of the Certificateholders and no such adjustment shall be
deemed an amendment of the terms hereof, but shall be an adjustment in
accordance with the terms hereof if, prior to each adjustment, the Rating
Agency Condition is satisfied for such adjustment.
"Monthly Interest" shall mean with respect to any
Distribution Date, the sum of Class A Monthly Interest and Class B Monthly
Interest.
"Monthly Payment Rate" shall mean, for any Collection
Period, the percentage obtained by dividing the aggregate Principal Collections
for such Collection Period by the average daily Pool Balance for such
Collection Period.
"Monthly Principal" shall mean, with respect to any
Distribution Date, the amount specified in Section 4.03 hereof.
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<PAGE> 16
"Monthly Servicing Fee" shall have the meaning specified in
Section 3.01 hereof.
"Net Receivables Rate" shall mean, for any Adjustment Date,
(a) the weighted average interest rates borne by the Receivables included in
the Pool for the preceding Collection Period minus (b) 2%, if BCI is the
Servicer or, if BCI is not the Servicer, 3%.
"Net Servicing Fee" shall have the meaning specified in
Section 3.01 hereof.
"Net Servicing Fee Rate" shall mean 1%, if BCI is the
Servicer, 2%, if BCI is not the Servicer, or for any Distribution Date in
respect of which the Monthly Servicing Fee has been waived, 0%.
"Notice Not to Extend" shall have the meaning specified in
Section 4.12 hereof.
"Obligor Overconcentrations" shall mean, on any
Distribution Date and with respect to any Account, the excess of (a) the
aggregate principal amount of Eligible Receivables in such Account on the last
day of the Collection Period immediately preceding such Distribution Date over
(b) 2% of the Pool Balance with respect to Specified Obligors and 1.5% of the
Pool Balance with respect to all other Obligors, in each case such
concentrations calculated with respect to the Pool Balance on the last day of
such immediately preceding Collection Period. As used in this definition,
"Specified Obligors" shall mean any Obligor with respect to one of the six
largest Accounts in the Trust calculated on the basis of the amount of
Principal Receivables in such Account. The percentages specified in this
definition and the manner of determining the Specified Obligors may be adjusted
from time to time without the consent of the Certificateholders and no such
adjustment shall be deemed an amendment of the terms hereof, but shall be an
adjustment in accordance with the terms hereof if, prior to each adjustment,
the Rating Agency Condition is satisfied for such adjustment.
"Overconcentration Amount," on any Distribution Date, shall
mean the sum of (without duplication) the Obligor Overconcentrations, the
Manufacturer Overconcentrations, the Designated Manufacturer Overconcentrations
and the Industry Overconcentrations for such Distribution Date.
"Pool Factor" shall mean, with respect to any Distribution
Date, a number carried out to eleven decimals representing the ratio of the
Invested Amount as of such Distribution Date (determined after taking into
account any increases or decreases in the Invested Amount which will occur on
such Distribution Date) to the Adjusted Invested Amount.
"Pre-Allocated Invested Amount" prior to and including the
Series 1994-1 Final Payment Date, shall mean the sum of $251,000,000 plus the
aggregate amount of all principal payments made with respect to the Series
1994-1 Certificates since the Closing Date, and, after the Series 1994-1 Final
Payment Date, shall mean zero.
12
<PAGE> 17
"Principal Allocation Percentage," prior to and including
the Series 1994-1 Final Payment Date, shall mean, with respect to any
Collection Period, the percentage equivalent (which percentage shall never
exceed 100%) of a fraction, the numerator of which is the Invested Amount as of
the last day of the Revolving Period minus the Pre-Allocated Invested Amount
and the denominator of which is the Pool Balance as of the last day of the
immediately preceding Collection Period.
"Principal Allocation Percentage," after the Series 1994-1
Final Payment Date, shall mean, with respect to any date, the percentage
equivalent (which percentage shall never exceed 100%) of a fraction, the
numerator of which is the Invested Amount as of the last day of the Revolving
Period and the denominator is the Pool Balance as of the close of business the
day immediately preceding the day of calculation.
"Reassignment Amount" shall mean, with respect to any
Distribution Date, after giving effect to any deposits and distributions
otherwise to be made on such Distribution Date, the sum of (i) the principal
balance of the Certificates on such Distribution Date, (ii) accrued and unpaid
interest on the unpaid principal balances of the Certificates (calculated on
the basis of the outstanding principal balance of the Class A Certificates and
Class B Certificates at the Class A Certificate Rate and Class B Certificate
Rate, respectively, through the day preceding such Distribution Date), (iii)
the amount of Additional Interest, if any, for such Distribution Date and any
Additional Interest previously due but not distributed on the Certificates on a
prior Distribution Date, and (iv) the Class A Carry-Over Amount and Class B
Carry-Over Amount, if any, for such Distribution Date and any Class A
Carry-Over Amount and Class B Carry-Over Amount previously due but not
distributed on the Certificates on a prior Distribution Date.
"Required Investor Percentage" shall mean, with respect to
the Certificates, 104%; provided, however, that the Depositor may adjust the
Required Investor Percentage without the consent of the Certificateholders and
such adjustment shall not be deemed an amendment of the terms hereof, but shall
be an adjustment in accordance with the terms hereof if, prior to each
adjustment, the Rating Agency Condition is satisfied.
"Required Subordinated Amount" shall mean, as of any date
of determination, the sum of (a) the product of (i) the Subordinated Percentage
and (ii) the Invested Amount on such date and (b) the Incremental Subordinated
Amount for the immediately preceding Distribution Date or, if such date of
determination is a Distribution Date, for such date; provided, however, that
for any date prior to the end of the Revolving Period, the Required
Subordinated Amount shall in no event be less than an amount equal to the sum
of (x) 3.75% of the Initial Principal Amount of the Certificates and (y) the
Incremental Subordinated Amount for the immediately preceding Distribution Date
or, if such date of determination is a Distribution Date, for such date;
provided further, that upon the commencement of the Initial Amortization Period
or the Amortization Period or if an Early Amortization Event occurs, the
Required Subordinated Amount for each date of determination thereafter shall
equal the Required Subordinated Amount as of the close of business on the day
preceding the first day of the Initial Amortization Period or the Amortization
Period or the day
13
<PAGE> 18
on which such Early Amortization Event occurs. On the Closing Date, the
Required Subordinated Amount shall be $35,451,117.98.
"Required Subordination Draw Amount" shall have the meaning
specified in Section 4.05 hereof.
"Reserve Fund" shall have the meaning specified in Section
4.04(a)(i) hereof.
"Reserve Fund Deposit Amount" shall mean, with respect to
any Distribution Date, the amount, if any, by which (i) the Reserve Fund
Required Amount for such Distribution Date exceeds (ii) the amount of funds on
deposit in the Reserve Fund after giving effect to any withdrawals therefrom on
such Distribution Date.
"Reserve Fund Required Amount" shall mean, with respect to
any Distribution Date, an amount equal to the product of (a) 0.50% and (b) the
outstanding principal balance of the Certificates for such Distribution Date
(after giving effect to any reduction thereof on such Distribution Date).
"Retained Percentage," prior to and including the Series
1994-1 Final Payment Date, for any Collection Period 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
Certificates and (b) the Variable Funding Percentage for such Collection Period
and (ii) with respect to Principal Collections, 100% minus the sum of (a) the
aggregate of the floating allocation percentages for each outstanding Series of
Certificates in their revolving periods, (b) the aggregate of the principal
allocation percentages for all Series that are not in their revolving periods
and (c) the Variable Funding Percentage for such Collection Period, but in any
case the Retained Percentage shall not be less than 0%, and, after the Series
1994-1 Final Payment Date, Retained Percentage shall have the meaning assigned
in the Agreement.
"Revolving Period" shall mean the period beginning at the
opening of business on the Series Cut-Off Date and ending on the earliest of
(a) the last day of the Collection Period ending on September 30, 2001, (b) the
day on which the Trustee mails notice to the Certificateholders that BCI has
elected not to extend the Initial Principal Payment Date, and (c) the close of
business on the Business Day immediately preceding the day on which an Early
Amortization Period commences; provided, however, that if any Early
Amortization Period ends as described in clause (c) of the definition thereof,
the Revolving Period will recommence as of the close of business on the day
such Early Amortization Period ends.
"Series Cut-Off Date" shall mean January 1, 1997.
"Series Issuance Date" shall mean, for Series 1997-1, the
Closing Date.
"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
14
<PAGE> 19
thereon has been paid in full and the Series 1994-1 Certificates have been
fully discharged and have no further interest in the Trust.
"Series 1997-1 Accounts" shall have the meaning specified
in Section 4.04(c)(i) hereof.
"Series 1997-1 Available Retained Collections" shall mean,
with respect to any Deposit Date, an amount equal to the product of (a) the
Available Retained Collections for such Deposit Date and (b) a fraction, the
numerator of which is the Available Subordinated Amount and the denominator of
which is the Pool Available Subordinated Amount, in each case on such Deposit
Date.
"Series 1997-1 Excess Principal Collections" shall mean
that portion of Excess Principal Collections allocated to Series 1997-1
pursuant to Section 4.10 hereof.
"Series 1997-1 Investor Allocation Percentage" for any
Collection Period shall mean the percentage derived from the fraction the
numerator of which is the Invested Amount as of the last Business Day preceding
such Collection Period and the denominator of which is the Pool Invested Amount
on the last Business Day preceding such Collection Period.
"Series 1997-1 Principal Shortfall" shall have the meaning
specified in Section 4.10 hereof.
"Series 1997-1 Required Balance," prior to and including
the Series 1994-1 Final Payment Date, shall mean, for any Distribution Date,
the sum of (i) (x) the Required Investor Percentage multiplied by the Adjusted
Invested Amount immediately prior to such date minus (y) the Pre-Allocated
Invested Amount and (ii) the Available Subordinated Amount for the immediately
preceding Distribution Date.
"Series 1997-1 Required Balance," after the Series 1994-1
Final Payment Date, shall mean, as of any date of determination, the sum of (i)
the Required Investor Percentage multiplied by the Adjusted Invested Amount as
of the close of business on the immediately preceding day and (ii) the
Available Subordinated Amount as of the close of business on such immediately
preceding day.
"Series 1997-1 Termination Date" shall mean the April 2004
Distribution Date.
"Servicing Fee Rate" shall mean, with respect to the
Certificates, 2% or, for any Distribution Date in respect of which the Monthly
Servicing Fee has been waived, 0%.
"Subordinated Percentage" shall equal the percentage
equivalent of a fraction, the numerator of which is 5.5% and the denominator
will be the excess of 100% over 5.5%.
15
<PAGE> 20
"Telerate Page 3750" shall mean the display page currently
so designated on the Dow Jones Telerate Service (or such other page as may
replace that page on that service for the purpose of displaying comparable
rates or prices).
"Termination Proceeds" shall mean any Termination Proceeds
arising out of a sale of Receivables (or interests therein) pursuant to Section
12.02(c) of the Agreement with respect to Series 1997-1.
"Variable Funding Percentage," prior to and including the
Series 1994-1 Final Payment Date, shall mean for any Collection Period, a
percentage (which percentage shall never be less than 0% nor more than 100%)
equal to the Variable Funding Amount as of the last day of the immediately
preceding Collection Period divided by the Pool Balance as of such last day (or
as of the Series Cut-Off Date with respect to the first Collection Period);
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, and, after the Series 1994-1 Final Payment Date, Variable
Funding Percentage shall have the meaning assigned in the Agreement.
SECTION 2.02. Interpretive Provisions.
(a) Notwithstanding anything to the contrary in this
Series Supplement or the Agreement, the term "Rating Agency" shall mean,
whenever used in this Series Supplement or the Agreement with respect to the
Certificates, Standard & Poor's and Moody's. As used in this Series Supplement
and in the Agreement with respect to the Certificates, "highest investment
category" shall mean (i) in the case of Standard & Poor's, AAA and A-1+, as
applicable, and (ii) in the case of Moody's, Aaa and P-1, as applicable.
(b) All capitalized terms used herein and not otherwise
defined herein have the meanings ascribed to them in the Agreement. The
definitions in Section 2.01 of this Series Supplement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(c) For purposes of calculating the Required Pool Balance
under the Agreement, (I) the amount for Series 1997-1 to be used in clause (i)
of the definition of Required Pool Balance contained in Section 1.01 of the
Agreement shall be calculated as follows: (A) the product of (x) the Required
Investor Percentage and (y) the Adjusted Invested Amount minus (B) the
Pre-Allocated Invested Amount and (II) the amount for Series 1997-1 to be used
in clause (iii) of the definition of Required Pool Balance in Section 1.01 of
the Agreement shall be calculated as the amount equal to the positive
difference, if any, between the amount on deposit in the Reserve Fund and the
Reserve Fund Required Amount.
16
<PAGE> 21
(d) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Series Supplement shall refer to this
Series Supplement as a whole and not to any particular provision of this Series
Supplement; references to any Article, Section or Exhibit are references to
Articles, Sections and Exhibits in or to this Series Supplement unless
otherwise specified; and the term "including" means "including without
limitation."
SECTION 2.03. Transitional Provisions Relating to Series
1994-1 Final Payment Date. Whenever in this Series Supplement calculations are
required to be made for a Collection Period during which the Series 1994-1
Final Payment Date occurred, allocations with respect to Collections received
from the first day of such Collection Period through the Series 1994-1 Final
Payment Date shall be deemed to have been deposited and the Deposit Date with
respect thereto shall be the first Business Day following the Series 1994-1
Final Payment Date.
ARTICLE III
Servicing Fee
SECTION 3.01. Servicing Compensation. The monthly
servicing fee hereunder shall be payable to the Servicer, in arrears, on each
Distribution Date in respect of any Collection Period (or portion thereof)
occurring prior to the earlier of the Series 1997-1 Termination Date and the
first Distribution Date on which the Invested Amount is zero. An amount equal
to one-twelfth of the product of (a) the Servicing Fee Rate and (b) the
Invested Amount as of the last day of the Collection Period second preceding
such Distribution Date (the "Monthly Servicing Fee") shall be paid on behalf of
the Certificateholders pursuant to Sections 4.06(a)(iii) and (vi); provided,
however, that with respect to the first Distribution Date, the Monthly
Servicing Fee shall be equal to $213,562.50. A portion of the Monthly
Servicing Fee (the "Net Servicing Fee") will be payable in the priority set
forth in Section 4.06(a) and, on each such Distribution Date shall be an amount
equal to one-twelfth of the product of (a) the Net Servicing Fee Rate and (b)
the Invested Amount as of the last day of the Collection Period second
preceding such Distribution Date; provided, however, that with respect to the
first Distribution Date the Net Servicing Fee shall be $106,781.25. The
remaining portion of the Servicing Fee not allocable to the Certificates shall
be paid by the Holder of the BCRC Certificate, the Holder(s) of any
Supplemental Certificates(s), the Holder of the Variable Funding Certificate
and the Holders of other outstanding Series of Investor Certificates, and in no
event shall the Trust, the Trustee or the Holders of the Certificates be liable
for any such remaining portion. The Monthly Servicing Fee shall be payable to
the Servicer solely to the extent amounts are available for distribution in
accordance with the terms of this Series Supplement.
The Servicer will be permitted, in its sole discretion, to
waive the Monthly Servicing Fee for any Distribution Date by written notice
given to the Trustee at least two Business Days prior to such Distribution
Date; provided, however, that the Servicer believes that sufficient
Non-Principal Collections will be available on any future Distribution Date to
17
<PAGE> 22
pay the Monthly Servicing Fee relating to the amount thereof so waived. If the
Servicer so waives the Monthly Servicing Fee for any Distribution Date, the
Monthly Servicing Fee (including the Net Servicing Fee) for such Distribution
Date shall be deemed to be zero for all purposes of this Series Supplement and
the Agreement; and provided further, that such Monthly Servicing Fee shall be
paid on a future Distribution Date solely to the extent amounts are available
therefor pursuant to Section 4.09(b) hereof.
ARTICLE IV
Rights of Certificateholders and
Allocation and Application of Collections
SECTION 4.01A. Allocations; Payments to Holder(s) of the
BCRC Certificate and any Supplemental Certificate(s). The provisions of this
Section 4.01A shall apply only prior to and including the Series 1994-1 Final
Payment Date.
(a) Except as otherwise provided by the terms of the
Agreement, the Servicer, as promptly as possible following receipt, but in no
event later than two (2) Business Days following such receipt, shall deposit
all Collections (which may be deposited net of the sum of (i) the Variable
Funding Percentage of such Collections and (ii) the Excess Retained Percentage
of such Collections) into the Collection Account; provided, however, that if
Collections are not deposited net of the foregoing amounts, the withdrawals to
be made from the Collection Account pursuant to this Article IV do not apply to
funds on deposit in the Collection Account with respect to such net amounts.
Except as otherwise provided in Article VII or Article VIII hereof, Non-
Principal Collections and Principal Collections, Miscellaneous Payments and
Defaulted Amounts, as they relate to the Certificates, shall be allocated and
distributed as set forth in this Article IV.
(b) On each Deposit Date with respect to any Collection
Period, the Servicer may instruct the Trustee in writing to withdraw from the
Collection Account (or, to the extent not required to be deposited therein
pursuant to Section 4.03 of the Agreement, to otherwise make available) and pay
to the Holder(s) of the BCRC Certificate and any Supplemental Certificate(s),
pro rata in accordance with the respective percentage interests thereof, an
amount equal to (i) the Excess Retained Percentage of all Collections deposited
in the Collection Account for such Deposit Date plus (ii) the Available
Retained Collections deposited in the Collection Account for such Deposit Date,
if the Pool Balance (determined after giving effect to any Principal
Receivables transferred to the Trust on any such Deposit Date) exceeds the
Required Pool Balance for the immediately preceding Distribution Date (after
giving effect to the allocations, distributions, withdrawals and deposits to be
made on the Distribution Date immediately following such Determination Date);
provided, however, that Available Retained Collections shall be paid to the
Holder(s) of the BCRC Certificate and any Supplemental Certificate(s) with
respect to any Collection Period only after an amount equal to the sum of (x)
the Deficiency Amount, if any, relating to the immediately preceding
Distribution Date and (y) the excess, if any, of the Reserve Fund Required
Amount over the
18
<PAGE> 23
amount in the Reserve Fund on the immediately preceding Distribution Date
(after giving effect to the allocations of, distributions from, and deposits
in, the Reserve Fund on the following Distribution Date), has been deposited in
the Collection Account from such Available Retained Collections.
The withdrawals to be made from the Collection Account
pursuant to this Section 4.01A(b) do not apply to deposits into the Collection
Account that do not represent Collections, including Miscellaneous Payments,
payment of the purchase price for the Certificates pursuant to Section 2.03 of
the Agreement, payment of the purchase price for the Certificates pursuant to
Section 7.01 hereof and proceeds from the sale, disposition or liquidation of
Receivables pursuant to Section 9.02 or Section 12.02 of the Agreement.
(c) The Servicer shall, no later than four (4) Business
Days prior to each Distribution Date, instruct the Trustee in writing to
withdraw from the Collection Account and deposit into the Reserve Fund on such
Distribution Date, with respect to the Revolving Period, the Available Retained
Collections on deposit in the Collection Account, up to the amount of the
excess, if any, determined pursuant to Section 4.01A(b)(y) hereof.
SECTION 4.01B. Collections and Allocations for Series
1997-1. The provisions of this Section 4.01B shall apply only after the Series
1994-1 Final Payment Date.
(a) Allocations of Non-Principal Collections and Series
1997-1 Available Retained Collections. The Servicer shall, on or prior to the
close of business on each Deposit Date, allocate the following amounts as set
forth below:
(i) During the Revolving Period, the Amortization Period
and any Initial Amortization Period, the Servicer shall allocate to
Series 1997-1 an amount equal to the sum of (1) the product of (x) the
Floating Allocation Percentage for such Deposit Date and (y) the
aggregate amount of Non-Principal Collections on such Deposit Date and
(2) the Series 1997-1 Available Retained Collections for such Deposit
Date (such amount for any Deposit Date, the "Daily Allocation"), and
of that allocation, deposit and retain in the Collection Account an
amount not less than the lesser of (I) the Daily Allocation on such
Deposit Date and (II) the difference between (q) the sum of (1)
Monthly Interest, any Class A Carry-Over Amount and any Class B
Carry-Over Amount for the related Distribution (provided that prior to
the Adjustment Date, the Servicer shall calculate such Monthly
Interest in good faith assuming that the Class A Certificate Rate and
the Class B Certificate Rate for the Interest Period commencing during
such Collection Period are the same as the corresponding rates for the
Interest Period ending during such Collection Period), (2) if BCI is
not the Servicer, the Monthly Servicing Fee for the current Collection
Period, (3) the sum for each day through such Deposit Date of the
Floating Allocation Percentage of the Defaulted Amount, and (4) the
Reserve Fund Deposit Amount, if any, for the immediately preceding
Distribution Date (after giving effect to any withdrawals from or
deposits to the Reserve Fund on such Deposit Date and (r) the amounts
previously deposited in the Collection Account for the current
Collection Period pursuant to this Section
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4.01B(a)(i) and the remainder of such Daily Allocation shall be
retained by the Servicer for allocation pursuant to Sections 4.01B(c),
4.06(a) and 4.07 hereof.
(ii) During the Amortization Period, allocate to Series
1997-1 and deposit and retain in the Collection Account an amount
equal to the Daily Allocation for such Deposit Date.
(b) Allocations of Principal Collections. The Servicer
shall, on or prior to the close of business on each Deposit Date, allocate the
following amounts, as set forth below:
(i) During the Revolving Period, allocate to Series
1997-1 an amount equal to the product of (x) the Floating Allocation
Percentage for such Deposit Date and (y) the aggregate amount of
Principal Collections on such Deposit Date (such product for any
Deposit Date, the "Daily Principal Allocation"), which amount shall be
retained by the Servicer for application in accordance with Section
4.06(b); provided, however, that the Daily Principal Allocation for
any Deposit Date shall be retained by the Servicer only if the Pool
Balance for the immediately preceding Business Day (determined after
giving effect to any Principal Receivables transferred to
the Trust through the close of business on such Business Day) exceeds
the Required Pool Balance for such Business Day (calculated before
giving effect to any deposits to the Excess Funding Account and any
excess funding account for any other Series in their revolving period
or, if applicable, their amortization period through the close of
business on such Business Day) and otherwise shall be deposited in the
Excess Funding Account in an amount up to the Excess Funded Amount
for such Deposit Date minus the amount then on deposit in the Excess
Funding Account and the remainder shall be retained by the Servicer for
application in accordance with Section 4.06(b) hereof.
(ii) During the Amortization Period, allocate to Series
1997-1 and deposit and retain in the Collection Account an amount
equal to the Daily Principal Allocation (which, during the
Amortization Period, shall be an amount equal to the product of (x)
the Principal Allocation Percentage for such Deposit Date and (y) the
aggregate amount of Principal Collections on such Deposit Date);
provided, however, that if the sum of the Daily Principal Allocations
for the same Collection Period exceeds the Class A Controlled
Distribution Amount for the related Class A Amortization Date plus,
for the Collection Period immediately preceding the Class B Expected
Payment Date, the outstanding principal balance of the Class B
Certificates, then such excess shall not be deposited in the
Collection Account but shall be retained by the Servicer for
application in accordance with Section 4.06(d) hereof; provided
further, however, that such excess for any Deposit Date shall be
retained by the Servicer only if the Pool Balance for the immediately
preceding Business Day (determined after giving effect to any
Principal Receivables transferred to the Trust through the close of
business on such Business Day) exceeds the Required Pool Balance for
such Business Day (calculated before giving effect to any deposits to
the Excess Funding Account and any excess funding account for any
other Series in their revolving period or, if applicable, their
amortization period through the close of business on such Business
Day) and otherwise shall be deposited in the Excess Funding Account in
an amount up to the Excess
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Funded Amount for such Deposit Date minus the amount then on deposit
in the Excess Funding Account and the remainder shall be retained by
the Servicer for application in accordance with Section 4.06(c)
hereof.
(iii) During any Initial Amortization Period or Early
Amortization Period, allocate to Series 1997-1 and deposit and
retain in the Collection Account an amount equal to the Daily
Principal Allocation (which, during any Initial Amortization Period or
Early Amortization Period shall be an amount equal to the product of
(x) the Principal Allocation Percentage for such Deposit Date and (y)
the aggregate amount of Principal Collections on such Deposit Date);
provided, however, that after the date on which an amount of such
Daily Principal Allocations equal to the outstanding principal balance
of the Class A Certificates and the Class B Certificates has been
deposited into the Collection Account and allocated to Series 1997-1,
the amount determined in accordance with this subparagraph (iii) in
excess thereof shall be retained by the Servicer for application in
accordance with Section 4.06(c) hereof.
(c) On the second Business Day preceding each
Distribution Date with respect to the Revolving Period, the Initial
Amortization Period or the Amortization Period, the Servicer shall deposit in
the Collection Account an amount equal to the sum of (1) the excess, if any, of
any Daily Allocation (or portion thereof) consisting of the Floating Allocation
Percentage of Non-Principal Collections retained by the Servicer and not
deposited in the Collection Account during the related Collection Period over
the amounts required to be distributed on the related Distribution Date
pursuant to clauses (i) through (viii) of Section 4.06(a), provided that if BCI
is the Servicer, BCI may make such deposit net of the Monthly Servicing Fee and
(2) the excess, if any, of any Daily Allocation (or portion thereof) consisting
of the sum of the Series 1997-1 Available Retained Collections for the related
Collection Period retained by the Servicer and not deposited in the Collection
Account over the amounts required to be distributed on the related Distribution
Date out of Series 1997-1 Available Retained Collections pursuant to Section
4.07.
The withdrawals to be made from the Collection Account
pursuant to this Section 4.01B do not apply to deposits into the Collection
Account that do not represent Collections,including Miscellaneous Payments,
payment of the purchase price for the Certificates pursuant to Section 2.03 of
the Agreement, payment of the purchase price for the Certificates pursuant to
Section 7.01 hereof and proceeds from the sale, disposition or liquidation of
Receivables pursuant to Section 9.02 or 12.02 of the Agreement.
SECTION 4.02. Monthly Interest.
(a) The amount of monthly interest with respect to the
Class A Certificates ("Class A Monthly Interest") on any Distribution Date shall
be an amount equal to (x) the actual number of days elapsed in the related
Interest Period divided by 360 days, multiplied by (y) the product of (i) the
Class A Certificate Rate and (ii) the outstanding principal balance of the
Class A Certificates as of the close of business on the preceding Distribution
Date (after
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giving effect to all repayments of principal allocated to the Class A
Certificates on such preceding Distribution Date, if any); provided, however,
with respect to the first Distribution Date, Class A Monthly Interest shall be
equal to $1,605,500.
Two Business Days prior to each Distribution Date, the
Servicer shall determine and notify the Trustee in the Distribution Date
Statement of the excess, if any, of (x) the sum of Class A Monthly Interest for
the Interest Period applicable to such Distribution Date plus the amount, if
any, of the Class A Interest Shortfall which was due but not paid on the prior
Distribution Date over (y) the amount which will be available to be distributed
with respect to the Class A Certificates on such Distribution Date in respect
thereof pursuant to this Series Supplement (such excess, the "Class A Interest
Shortfall"). If, on any Distribution Date, the Class A Interest Shortfall is
greater than zero, then an additional amount ("Class A Additional Interest")
equal to (x) the actual number of days in the Interest Period commencing on
such Distribution Date divided by 360 days multiplied by (y) the product of (i)
the Class A Certificate Rate for such Interest Period and (ii) such Class A
Interest Shortfall shall be payable as provided herein with respect to the
Class A Certificates on the Distribution Date following such Distribution Date.
Notwithstanding anything to the contrary herein, Class A Additional Interest
shall be distributed with respect to the Class A Certificates only to the
extent permitted by applicable law.
(b) The amount of monthly interest with respect to the
Class B Certificates ("Class B Monthly Interest") on any Distribution Date
shall be an amount equal to (x) the actual number of days elapsed in the
related Interest Period divided by 360 days multiplied by (y) the product of
(i) the Class B Certificate Rate and (ii) the outstanding principal balance of
the Class B Certificates as of the close of business on the preceding
Distribution Date (after giving effect to all repayments of principal allocated
to the Class B Certificates on such preceding Distribution Date, if any);
provided, however, with respect to the first Distribution Date, Class B Monthly
Interest shall be equal to $112,986.93.
Two Business Days prior to each Distribution Date, the
Servicer shall determine and notify the Trustee in the Distribution Date
Statement of the excess, if any, of (x) the sum of the Class B Monthly Interest
for the Interest Period applicable to such Distribution Date plus the amount,
if any, of the Class B Interest Shortfall which was due but not paid on the
prior Distribution Date over (y) the amount which will be available to be
distributed with respect to the Class B Certificates on such Distribution Date
in respect thereof pursuant to this Series Supplement (such excess, the "Class
B Interest Shortfall"). If, on any Distribution Date, the Class B Interest
Shortfall is greater than zero, then an additional amount ("Class B Additional
Interest") equal to (x) the actual number of days in the Interest Period
commencing on such Distribution Date divided by 360 days multiplied by (y) the
product of (i) the Class B Certificate Rate for such Interest Period and (ii)
such Class B Interest Shortfall shall be payable as provided herein with
respect to the Class B Certificates on the Distribution Date following such
Distribution Date. Notwithstanding anything to the contrary herein, Class B
Additional Interest shall be distributed only to the extent permitted by
applicable law.
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(c) Any and all determinations made by the Servicer
pursuant to this Section 4.02 shall be communicated in writing and delivered to
the Trustee no later than the Business Day preceding the relevant Distribution
Date.
SECTION 4.03. Determination of Monthly Principal. The
amount of Monthly Principal distributable with respect to the Certificates on
each Distribution Date with respect to an Early Amortization Period or an
Initial Amortization Period shall be equal to the Available Investor Principal
Collections with respect to such Distribution Date; provided, however, that
Monthly Principal shall in no event exceed the outstanding principal balance of
the applicable Class of Certificates. The amount of Monthly Principal
distributable with respect to the Certificates on each Distribution Date with
respect to the Amortization Period shall be equal to the Available Investor
Principal Collections with respect to such Distribution Date; provided,
however, that Monthly Principal distributable to the Holders of the Class A
Certificates on any Class A Amortization Date shall in no event exceed the
Class A Controlled Distribution Amount; and provided further, that Monthly
Principal distributable to the Holders of the Class A Certificates and the
Class B Certificates shall in no event exceed in the aggregate the outstanding
principal balances of the Class A Certificates and the Class B Certificates,
respectively.
SECTION 4.04. Establishment of Reserve Fund and Excess
Funding Account.
(a)(i) The Servicer, for the benefit of the
Certificateholders, shall cause the Trustee to establish and maintain
with an Eligible Institution, to be held on behalf of the Trust, an
Eligible Deposit Account (the "Reserve Fund") which shall be
identified as the "Reserve Fund for the Bombardier Receivables Master
Trust, Series 1997-1" and shall bear a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Certificateholders.
(ii) At the written direction of the Servicer, funds on
deposit in the Reserve Fund shall be invested by the Trustee in
Eligible Investments selected by the Servicer that will mature so that
such funds will be available at the close of business on or before the
Business Day next preceding the following Distribution Date. All
Eligible Investments shall be held in the Reserve Fund for the benefit
of the Certificateholders. On each Distribution Date, all interest
and other investment earnings (net of losses and investment expenses)
on funds on deposit in the Reserve Fund received prior to such
Distribution Date shall be applied as set forth in Section 4.06(a)
hereof. Funds deposited in the Reserve Fund on a Business Day (which
immediately precedes a Distribution Date) upon the maturity of any
Eligible Investments are not required to be invested overnight.
(b)(i) The Servicer, for the benefit of the
Certificateholders, shall establish and maintain in the name of the
Trustee with an Eligible Institution, on behalf of the Trust, an
Eligible Deposit Account (the "Excess Funding Account"), which shall
be identified as the "Excess Funding Account for Bombardier
Receivables Master Trust,
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Series 1997-1" and shall bear a designation clearly indicating that
the funds deposited therein are held for the benefit of the
Certificateholders.
(ii) At the written direction of the Servicer, funds on
deposit in the Excess Funding Account shall be invested by the Trustee
in Eligible Investments selected by the Servicer. All such Eligible
Investments shall be held by the Trustee for the benefit of the
Certificateholders. On each Distribution Date, all interest and other
investment earnings (net of losses and investment expenses) of funds
on deposit in the Excess Funding Account shall be applied as set forth
in Section 4.06(a) hereof.
(c)(i) The Trustee shall possess all right, title and
interest in and to all funds on deposit from time to time in, and all
Eligible Investments credited to, the Reserve Fund and the Excess
Funding Account (collectively the "Series 1997-1 Accounts") and in all
proceeds thereof. The Trustee shall possess all right, title and
interest in and to all funds on deposit from time to time in, and all
Eligible Investments credited to, the Series 1997-1 Accounts and in
all proceeds thereof. The Series 1997-1 Accounts shall be under the
sole dominion and control of the Trustee for the benefit of the
Certificateholders. If, at any time, any of the Series 1997- 1
Accounts ceases to be an Eligible Deposit Account, the Trustee (or the
Servicer on its behalf) shall within ten (10) Business Days (or such
longer period, not to exceed thirty (30) calendar days, as to which
each Rating Agency may consent) establish a new Series 1997-1 Account
meeting the conditions specified in subsection (a)(i) or (b)(i), as
applicable, as an Eligible Deposit Account and shall transfer any cash
and/or any investments to such new Series 1997-1 Account. Neither the
Depositor, the Servicer nor any person or entity claiming by, through
or under the Depositor, the Servicer or any such person or entity
shall have any right, title or interest in, or any right to withdraw
any amount from, any Series 1997-1 Account, except as expressly
provided herein. Schedule I hereto, which is hereby incorporated into
and made part of this Series Supplement, identifies each Series 1997-1
Account by setting forth the Eligible Institution with which the
Series 1997-1 Account is established, the account number of each such
account and the account designation of each such account. If a
substitute Series 1997-1 Account is established pursuant to this
Section 4.04, the Servicer shall provide to the Trustee an amended
Schedule I, setting forth the relevant information for such substitute
Series 1997-1 Account.
(ii) Pursuant to the authority granted to the Servicer in
Section 3.01(a) of the Agreement, the Servicer shall have the power,
revocable by the Trustee, to make withdrawals and payments or to
instruct the Trustee to take withdrawals and payments from the Series
1997-1 Accounts for the purposes of carrying out the Servicer's or
Trustee's duties hereunder.
SECTION 4.05. Deficiency Amount. With respect to each
Distribution Date, on the related Determination Date, the Servicer shall
determine the amount (the "Deficiency Amount"), if any, by which:
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(a) the sum of:
(i) Monthly Interest for such Distribution Date,
(ii) any Monthly Interest previously due but not
distributed with respect to the Certificates on a prior Distribution
Date,
(iii) Additional Interest, if any, for such Distribution
Date and any Additional Interest previously due (to the extent
permitted under applicable law) but not distributed on the
Certificates on a prior Distribution Date,
(iv) the Net Servicing Fee for such Distribution Date,
(v) the Investor Default Amount, if any, for such
Distribution Date, and
(vi) the Series 1997-1 Investor Allocation Percentage of
the amount of any Adjustment Payment required to be deposited in the
Collection Account pursuant to Section 3.09(a) of the Agreement with
respect to the related Collection Period that has not been so
deposited as of such Determination Date,
exceeds, (b) the sum of:
(i) Investor Non-Principal Collections plus any Investment
Proceeds with respect to such Distribution Date, and
(ii) the amount of funds in the Reserve Fund which are
available pursuant to Section 4.07(a) hereof to cover any portion of
the amount, if any, by which the amount of clause (a) exceeds the
amount of clause (b)(i).
The "Required Subordination Draw Amount" shall be the lesser of (x) the
Deficiency Amount and (y) the Available Subordinated Amount on the related
Determination Date.
SECTION 4.06. Application of Investor Non-Principal
Collections, Investment Proceeds and Available Investor Principal Collections.
The Servicer shall cause the Trustee to make the following distributions on
each Distribution Date based on the information contained in the Distribution
Date Statement.
(a) On each Distribution Date, an amount equal to the sum
of Investor Non-Principal Collections and any Investment Proceeds with respect
to such Distribution Date shall be distributed in the following priority:
(i) first, an amount equal to Class A Monthly
Interest for such Distribution Date, plus the amount
of any Class A Monthly Interest previously due but
not distributed to the Class A Certificateholders on
a prior Distribution Date, plus, but only to the
extent permitted under applicable law, the amount of
any Class A Additional
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Interest for such Distribution Date and any Class A
Additional Interest previously due but not distributed
to the Class A Certificateholders on a prior
Distribution Date, shall be distributed to the Class A
Certificateholders;
(ii) second, an amount equal to Class B
Monthly Interest for such Distribution Date, plus the
amount of any Class B Monthly Interest previously due
but not distributed to the Class B Certificateholders
on a prior Distribution Date, plus, but only to the
extent permitted under applicable law, the amount of
any Class B Additional Interest for such Distribution
Date and any Class B Additional Interest previously
due but not distributed to the Class B
Certificateholders on a prior Distribution Date,
shall be distributed to the Class B
Certificateholders;
(iii) third, an amount equal to the Net
Servicing Fee for such Distribution Date shall be
distributed to the Servicer (unless such amount has
been netted against deposits to the Collection
Account or waived);
(iv) fourth, an amount equal to the Reserve
Fund Deposit Amount, if any, for such Distribution
Date shall be deposited in the Reserve Fund;
(v) fifth, an amount equal to the Investor
Default Amount, if any, for such Distribution Date
shall be treated as a portion of Available Investor
Principal Collections for such Distribution Date and
distributed as provided in Section 4.06(b), 4.06(c),
or 4.06(d) below, as applicable;
(vi) sixth, an amount equal to the
remainder of the Monthly Servicing Fee for such
Distribution Date, if any, due but not paid the
Servicer shall be paid to the Servicer (unless such
amount has been netted against deposits to the
Collection Account or waived);
(vii) seventh, an amount equal to the Class
A Carry-Over Amount, if any, for such Distribution
Date, plus the amount of any Class A Carry-Over
Amount previously due but not distributed with
respect to the Class A Certificates on a prior
Distribution Date, shall be distributed to the Class
A Certificateholders;
(viii) eighth, an amount equal to the Class
B Carry-Over Amount, if any, for such Distribution
Date, plus the amount of any Class B Carry-Over
Amount previously due but not distributed on Class B
Certificates on a prior Distribution Date, shall be
distributed to the Class B Certificateholders; and
(ix) ninth, the balance, if any, shall
constitute Excess Servicing and shall be allocated
and distributed as set forth in Section 4.09 hereof.
(b) On each Distribution Date with respect
to the Revolving Period, an amount equal to the Available Investor Principal
Collections for such Distribution Date shall be distributed as follows:
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(i) prior to and including the Series 1994-1
Final Payment Date, the Trustee shall apply such
Available Investor Principal Collections first, if
the Pool Balance at the end of the preceding
Collection Period is less than the Required Pool
Balance for such Distribution Date (calculated before
giving effect to any deposits to the Excess Funding
Account and any excess funding account for any other
Series in their revolving periods to be made on such
Distribution Date), to make a deposit into the Excess
Funding Account in an amount equal to the Excess
Funded Amount as of such Distribution Date minus the
amount then on deposit in the Excess Funding Account
(after taking into account any amounts deposited into
the Excess Funding Account pursuant to Section 4.12
of this Supplement), and second, an amount equal to
the balance (such balance being part of "Excess
Principal Collections"), if any, of such Available
Investor Principal Collections shall be applied in
accordance with Section 4.04 of the Agreement.
(ii) after the Series 1994-1 Final Payment
Date, the Trustee shall apply such Available Investor
Principal Collections, in accordance with the written
directions of the Servicer, first, to make a deposit
into the Excess Funding Account in an amount equal to
the Excess Funded Amount as of the close of business
on the preceding Business Day minus the amount then
on deposit in the Excess Funding Account, and second,
an amount equal to the balance (such balance being
part of "Excess Principal Collections"), if any, of
such Available Investor Principal Collections shall
be applied in accordance with Section 4.04 of the
Agreement.
(c) On each Distribution Date with respect
to an Early Amortization Period or an Initial Amortization Period, an amount
equal to Available Investor Principal Collections for such Distribution Date
shall be distributed in the following order of priority:
(i) first, an amount equal to the Monthly
Principal for such Distribution Date will be
distributed first to the holders of the Class A
Certificates until the principal amount thereof is
reduced to zero, and then to the holders of the Class
B Certificates until the principal amount thereof is
reduced to zero; and
(ii) second, an amount equal to the balance
(such balance being part of "Excess Principal
Collections"), if any, of such Available Investor
Principal Collections shall be applied in accordance
with Section 4.04 of the Agreement.
(d) On each Distribution Date with respect
to the Amortization Period, an amount equal to Available Investor Principal
Collections for such Distribution Date shall be distributed in the following
order of priority:
(i) on each Class A Amortization Date, to
the Class A Certificates, an amount equal to the
lesser of (x) the Class A Controlled Distribution
Amount for such date and (y) the Available Investor
Principal Collections for such date until the
principal balance of the Class A Certificates has
been reduced to zero;
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(ii) on each Distribution Date commencing on
the Distribution Date on which the principal balance
of the Class A Certificates has been reduced to zero,
to the Class B Certificates, an amount equal to the
lesser of (x) the outstanding principal balance of
the Class B Certificates and (y) the Available
Investor Principal Collections for such date (after
giving effect to any portion thereof distributable to
the Class A Certificates pursuant to clause (i)
above);
(iii) an amount equal to the lesser of (x)
the Excess Funded Amount as of the close of business
on the preceding Business Day minus the amount then
on deposit in the Excess Funding Account and (y) the
Available Investor Principal Collections for such
date (after giving effect to any portion thereof
distributable to the Class A Certificates or the
Class B Certificates pursuant to clauses (i) and (ii)
above); and
(iv) an amount equal to the balance
including, on each Class A Amortization Date,
Available Investor Principal Collections not used to
make principal distributions on the Class A
Certificates pursuant to clause (i) above (such
balance being part of "Excess Principal
Collections"), if any, of such Available Investor
Principal Collections shall be applied in accordance
with Section 4.04 of the Agreement.
(e) The distributions to be made pursuant to
this Section 4.06 are subject to the provisions of Section 2.03, Section 9.02,
Section 10.01 and Section 12.02 of the Agreement and Section 8.01 and Section
8.02 of this Series Supplement.
SECTION 4.07. Application of Reserve Fund and
Available Subordinated Amount.
(a) If the Investor Non-Principal Collections and
Investment Proceeds on any Distribution Date are not sufficient to make the
entire distributions required on such Distribution Date by clauses (i), (ii),
(iii) and (v) of Section 4.06(a) hereof, the Servicer shall by written
instruction cause the Trustee to withdraw funds from the Reserve Fund to the
extent available therein, and apply such funds to complete the distributions
pursuant to clauses (i), (ii), (iii) and (v) of Section 4.06(a) hereof.
(b) If there is a Deficiency Amount for such
Distribution Date, the Servicer shall, subject to the following paragraph,
apply or cause the Trustee to apply the aggregate amount of Series 1997-1
Available Retained Collections for the related Collection Period, but only up
to the amount of the Required Subordination Draw Amount, to make up the
shortfall in the distributions required by clauses (i), (ii), (iii) and (v) of
Section 4.06(a) hereof that have not been made through the application of funds
from the Reserve Fund in accordance with subsection (a) of this Section 4.07.
Any such Series 1997-1 Available Retained Collections remaining after the
application thereof pursuant to the preceding sentence shall be treated as a
portion of Available Investor Principal Collections for such Distribution Date,
but only up to the amount of unpaid Adjustment Payments allocated to the
Certificates as described in Section 4.05(a)(vi) hereof. The Holder of the
BCRC Certificate may elect to increase the Available Subordinated Amount, up to
a maximum aggregate increase equal to 1% of the Initial
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Principal Amount in order to avoid the occurrence of an Early Amortization
Event pursuant to Section 6.01(a) hereof.
Prior to the Series 1994-1 Final Payment Date, if for such
Distribution Date the sum of the Required Subordination Draw Amount and the
aggregate of the required subordination draw amounts for all other 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 to such Series (including the Certificates) pro
rata on the basis of such required subordination draw amounts (including the
Required Subordination Draw Amount).
(c) After giving effect to the allocations of,
distributions from, and deposits to, the Reserve Fund made pursuant to Section
4.01A(c), Section 4.04 and Section 4.06(a) hereof and subsections (a) and (d)
of this Section 4.07, (i) if the amount in the Reserve Fund is greater than the
Reserve Fund Required Amount (or, for any Distribution Date with respect to an
Early Amortization Period, the Excess Reserve Fund Required Amount) for such
Distribution Date, then the Servicer shall direct the Trustee in writing to
withdraw and distribute such excess amount (or otherwise make such amount
available) to the Holder of the BCRC Certificate and (ii) if the amount in the
Reserve Fund is less than such Reserve Fund Required Amount, then the Trustee
shall, subject to the following paragraph, transfer to the Eligible Institution
holding the Reserve Fund any remaining Series 1997-1 Available Retained
Collections (to the extent of the Available Subordinated Amount) for the
related Collection Period for deposit into the Reserve Fund until the amount in
the Reserve Fund is equal to such Reserve Fund Required Amount. If the
outstanding principal balance of the Certificates is greater than zero on the
Series 1997-1 Termination Date, any funds in the Reserve Fund will be treated
as Available Investor Principal Collections for the Distribution Date occurring
on the Series 1997-1 Termination Date. Upon payment in full of the outstanding
principal balance of the Certificates, any funds remaining on deposit in the
Reserve Fund shall be paid (or made available) to the Holder(s) of the BCRC
Certificate and any Supplemental Certificate(s), pro rata in accordance with
the respective percentage interests thereof.
Prior to the Series 1994-1 Final Payment Date, if for such
Distribution Date the sum of the amount required to be deposited into the
Reserve Fund and the aggregate of the amounts required to be deposited into the
reserve funds for all other Series outstanding exceeds the Available Retained
Collections that remain available to make such deposits on such Distribution
Date, then such remaining Available Retained Collections shall be allocated to
such Series (including the Certificates) pro rata on the basis of the amounts
required to be deposited in each such reserve fund (including the Reserve
Fund).
(d) If, for any Distribution Date with respect to an Early
Amortization Period, after giving effect to the allocations of, distributions
from, and deposits in, the Reserve Fund made pursuant to Section 4.01A(c),
Section 4.04 and Section 4.06(a) hereof and subsection (a) of this Section
4.07, the amount in the Reserve Fund is less than the Excess Reserve Fund
Required Amount for such Distribution Date, the Trustee shall, subject to the
following paragraph, deposit any remaining Series 1997-1 Available Retained
Collections (to the extent of the Available Subordinated Amount) for the
related Collection Period into the
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Reserve Fund until the amount in the Reserve Fund is equal to such Excess
Reserve Fund Required Amount.
Prior to the Series 1994-1 Final Payment Date, if for any
Distribution Date the sum of the amount required to be deposited into the
Reserve Fund to fund the Excess Reserve Fund Required Amount and the aggregate
of the amounts required to be deposited into the reserve funds for all other
Series outstanding to fund the excess reserve fund required amounts for such
Series exceeds the remaining Available Retained Collections available to make
such deposits for such Distribution Date, then such remaining Available
Retained Collections shall be allocated to such Series (including the
Certificates) pro rata on the basis of such amounts required to be deposited in
each such reserve fund (including the Reserve Fund) to fund the excess reserve
fund required amount.
(e) The balance of the Series 1997-1 Available Retained
Collections for the related Collection Period on any Distribution Date, after
giving effect to any distributions thereof pursuant to subsections (b), (c) and
(d) of this Section 4.07 and the distributions in respect of other Series
referred to in subsections (b), (c) and (d) of this Section 4.07, shall be
distributed to the Holder(s) of the BCRC and any Supplemental Certificate(s),
pro rata in accordance with the respective percentage interests thereof, on
such Distribution Date.
SECTION 4.08. Investor Charge-Offs. If, on any
Distribution Date on which the Available Subordinated Amount (after giving
effect to the allocations, distributions, withdrawals and deposits to be made
on such Distribution Date) is zero and the Deficiency Amount for such
Distribution Date is greater than zero, the Invested Amount shall be reduced by
the excess of such Deficiency Amount over any remaining Available Subordinated
Amount on the related Determination Date, but not by more than the Investor
Default Amount for such Distribution Date (an "Investor Charge-Off"). Investor
Charge-Offs shall thereafter be reimbursed (but not by an amount in excess of
the aggregate unreimbursed Investor Charge-Offs) on any Distribution Date by
the sum of (a) Allocable Miscellaneous Payments with respect to such
Distribution Date and (b) the amount of Excess Servicing allocated and
available for that purpose pursuant to Section 4.09(a) hereof.
SECTION 4.09. Excess Servicing. The Servicer shall by
written instruction cause the Trustee to apply to the extent not already so
distributed, on each Distribution Date, Excess Servicing with respect to the
Collection Period immediately preceding such Distribution Date, to make the
following distributions in the following priority:
(a) an amount equal to the aggregate amount of Investor
Charge-Offs which have not been previously reimbursed as provided in Section
4.08 hereof (after giving effect to the allocation on such Distribution Date of
any amount for that purpose pursuant to Section 4.08(a) hereof) shall be
treated as a portion of Available Investor Principal Collections with respect
to such Distribution Date;
(b) an amount equal to the aggregate outstanding amounts
of any Monthly Servicing Fees which have been previously waived pursuant to
Section 3.01 hereof and which
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have not been previously paid pursuant to this Section 4.09(b) shall be
distributed to the Servicer; and
(c) the balance, if any, shall be distributed (or
otherwise made available) to the Holder(s) of the BCRC Certificate and any
Supplemental Certificate(s), pro rata in accordance with the respective
percentage interests thereof.
SECTION 4.10. Principal Collections.
(a) The "Series 1997-1 Excess Principal Collections," with
respect to any Distribution Date, shall mean Excess Principal Collections for
all Series for such Distribution Date in an amount equal to the lesser of (a)
the Series 1997-1 Principal Shortfall, if any, for such Distribution Date and
(b) an amount equal to the product of (x) Excess Principal Collections for all
Series for such Distribution Date and (y) a fraction, the numerator of which is
the Series 1997-1 Principal Shortfall for such Distribution Date and the
denominator of which is the aggregate amount of Principal Shortfalls for all
Series for such Distribution Date.
(b) The "Series 1997-1 Principal Shortfall" for:
(x) any Class A Amortization Date shall equal the
excess of (i) the Class A Controlled Distribution Amount
plus, on the Class B Expected Payment Date, the outstanding
principal balance of the Class B Certificates over (ii)
Available Investor Principal Collections for such Class A
Amortization Date);
(y) any Distribution Date with respect to an Early
Amortization Period or an Initial Amortization Period shall
equal the excess, if any, of (i) the Invested Amount (plus,
in the case of the first Distribution Date following the
end of the Collection Period in which an Early Amortization
Period or an Initial Amortization Period shall have
commenced, any amounts on deposit in the Excess Funding
Account at the end of the Revolving Period) over (ii)
Available Investor Principal Collections for such
Distribution Date.
SECTION 4.11. Excess Funding Account.
(a) Any funds on deposit in the Excess Funding Account
upon the occurrence of an Early Amortization Event or the giving of notice that
BCI has elected not to extend the Initial Principal Payment Date will be
deposited in the Collection Account for application as Available Investor
Principal Collections. In addition, no funds will be deposited in the Excess
Funding Account during any Early Amortization Period or any Initial
Amortization Period.
(b) The provisions of this Section 4.11(b) shall apply
only prior to and including the Series 1994-1 Final Payment Date. If (i) on
any Determination Date during the
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Revolving Period there are any funds in the Excess Funding Account, (ii) the
Pool Balance at the end of the preceding Collection Period is greater than the
Pool Balance at the end of the second preceding Collection Period and (iii) the
Pool Balance at the end of the preceding Collection Period is greater than the
Required Pool Balance as of such Determination Date, then, subject to the other
provisions of this Section 4.11(b) and to subsections (d) and (e) of this
Section 4.11, the Adjusted Invested Amount and the adjusted invested amounts
(but, in each case, not in excess of the initial principal amount of such
Series) for all other outstanding Series that provide for an excess funding
account or similar arrangement and are in their revolving periods shall be
increased such that, after giving effect to such increases, the Required Pool
Balance is equal to the Pool Balance. On such Determination Date the Servicer
shall notify the Trustee in writing of the amount, if any, of such increase in
the Adjusted Invested Amount and the Trustee shall withdraw from the Excess
Funding Account and pay (or otherwise make available) to the Holder(s) of the
BCRC Certificate and any Supplemental Certificate(s), pro rata in accordance
with the respective percentage interests thereof, or allocate to one or more
other Series which are in amortization, early amortization or accumulation
periods, on the immediately succeeding Distribution Date, an amount equal to
the amount of such increase in the Adjusted Invested Amount. Such payment to
the Holder(s) of the BCRC Certificate and any Supplemental Certificate(s) shall
be in payment or partial payment pursuant to the Receivables Purchase Agreement
for additional Principal Receivables transferred to the Trust or allocated to
the Certificates. To the extent that the Adjusted Invested Amount is increased
by any payment to the Holder(s) of the BCRC Certificate and any Supplemental
Certificate(s) or any allocation to one or more other Series which are in
amortization, early amortization or accumulation periods, the Retained
Participation Amount or such other Series' invested amount, as applicable,
shall be reduced by the amount of such payment.
(c) The provisions of this Section 4.11 (c) shall apply
only after the Series 1994-1 Final Payment Date. If (i) on any Business Day
during the Revolving Period or the Amortization Period there are any funds in
the Excess Funding Account and (ii) the Pool Balance at the end of the
preceding Business Day was greater than the Required Pool Balance at the end of
such Business Day, then, subject to the other provisions of this Section
4.11(c) and to subsections (d) and (e) of this Section 4.11, the Adjusted
Invested Amount and the adjusted invested amounts (but, in each case, not in
excess of the initial principal amount of such Series) for all other
outstanding Series that provide for an excess funding account or similar
arrangement and are in their revolving periods or, if applicable, their
amortization periods shall be increased such that, after giving effect to such
increases, the Required Pool Balance is equal to the Pool Balance. On each
such Business Day the Servicer shall notify the Trustee in writing of the
amount, if any, of such increase in the Adjusted Invested Amount and the
Trustee shall withdraw from the Excess Funding Account and pay (or otherwise
make available) to the Holder(s) of the BCRC Certificate and any Supplemental
Certificate(s), pro rata in accordance with the respective percentage interests
thereof, or allocate to one or more other Series which are in amortization,
early amortization or accumulation periods, on such Business Day, an amount
equal to the amount of such increase in the Adjusted Invested Amount. Such
payment to the Holder(s) of the BCRC Certificate and any Supplemental
Certificate(s) shall be in payment or partial payment pursuant to the
Receivables Purchase Agreement for additional Principal Receivables transferred
to the Trust or allocated to the
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<PAGE> 37
Certificates. To the extent that the Adjusted Invested Amount is increased by
any payment to the Holder(s) of the BCRC Certificate and any Supplemental
Certificate(s) or any allocation to one or more other Series which are in
amortization, early amortization or accumulation periods, the Retained
Participation Amount or such other Series' adjusted invested amount, as
applicable, shall be reduced by the amount of such payment.
(d) In the event that other Series issued by the Trust
provide for excess funding accounts or other arrangements similar to the Excess
Funding Account involving fluctuating levels of investments in Principal
Receivables, the allocation of additional Principal Receivables to increase the
Adjusted Invested Amount and the adjusted invested amounts of such other Series
(and the related withdrawals from the Excess Funding Account and the other
excess funding accounts or similar accounts) will be based on the proportion
that the amount on deposit in the Excess Funding Account bears to amounts on
deposit in the excess funding accounts (including the Excess Funding Account)
of all Series providing for excess funding accounts or such similar
arrangements or to amounts otherwise similarly available.
(e) In the event that any other Series is in an
amortization period, early amortization period or accumulation period, the
amounts of any withdrawals from the Excess Funding Account shall be applied
first to satisfy in full any then applicable funding or payment requirements of
such Series and second to make a payment to the Holder(s) of the BCRC
Certificate and any Supplemental Certificate(s). In the event that more than
one other Series is in an amortization period, early amortization period or
accumulation period, the amounts of any withdrawals from the Excess Funding
Account shall be allocated (and, if necessary, reallocated) among such Series
as specified in the related Series Supplement, to meet the funding or payment
requirements of each such Series first to satisfy in full all then applicable
funding or payment requirements of each such Series and second to make a
payment to the Holder(s) of the BCRC Certificate and any Supplemental
Certificate(s).
SECTION 4.12. Initial Principal Payment Date. The Initial
Principal Payment Date will be successively and automatically extended to the
next Distribution Date unless the Servicer elects not to so extend the Initial
Payment Date and provided that the Initial Principal Payment Date shall not be
extended beyond the Class A Expected Final Payment Date. The Servicer shall
effect an election not to extend the Initial Principal Payment Date by
delivering a written notice (the "Notice Not to Extend") to the Trustee stating
that BCI elects, effective as of a Distribution Date stated in the notice (the
"Effective Distribution Date"), that the Initial Principal Payment Date not be
extended beyond such Effective Distribution Date. To be effective, the Notice
Not to Extend shall be delivered to the Trustee not later than the Distribution
Date immediately preceding the Effective Distribution Date.
Upon receipt by the Trustee of the Notice Not to Extend, the Trustee
shall give notice of such election by mailing a copy of such Notice Not to
Extend to each Certificateholder, BCRC and the Rating Agencies. If the Trustee
receives the Notice of Election Not to Extend on or before the Distribution
Date in the calendar month prior to the Effective Distribution Date, the
Trustee shall mail copies of such notice as described in the preceding sentence
not earlier than the first day of the Collection Period preceding the
Collection Period in which the
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Effective Distribution Date will occur and not later than the fifth Business
Day following the Distribution Date immediately preceding the Effective
Distribution Date.
ARTICLE V
Distributions and Reports to
Series 1997-1 Certificateholders
SECTION 5.01. Distributions. On each Distribution Date,
the Trustee shall distribute to the Certificateholders of record on the
preceding Record Date (other than as provided in Section 12.02 of the Agreement
respecting a final distribution) the amounts required to be distributed thereon
pursuant to Article IV hereof. Except as provided in Section 12.02 of the
Agreement with respect to a final distribution, distributions to
Certificateholders hereunder shall be made by wire transfer in immediately
available funds.
SECTION 5.02. Reports and Statements to Certificateholders.
(a) At least four (4) Business Days prior to each
Distribution Date, the Servicer will provide to the Trustee statements,
substantially in the form of Exhibit C hereto (each, a "Distribution Date
Statement"), and on each Distribution Date, the Trustee shall forward to the
Certificateholders such Distribution Date Statement setting forth certain
information relating to the Trust and the Certificates.
(b) On each Distribution Date, a copy of each Distribution
Date Statement provided pursuant to subsection (a) of this Section 5.02 will be
forwarded (or caused to be forwarded) by the Trustee to each Certificateholder.
(c) On or before January 31 of each calendar year,
beginning with January 31, 1998, the Trustee shall furnish or cause to be
furnished to each Person who at any time during the preceding calendar year was
a Certificateholder, a statement prepared by the Servicer containing the
information which is required to be contained in the statement to
Certificateholders as set forth in paragraph (a) above, aggregated for such
calendar year or the applicable portion thereof during which such Person was a
Certificateholder, together with other information as is required to be
provided by an issuer of indebtedness under the Internal Revenue Code and such
other customary information as is necessary to enable the Certificateholders to
prepare their tax returns. Such obligation of the Trustee shall be deemed to
have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Internal
Revenue Code as from time to time in effect. In addition, the Trustee shall
from time to time furnish to each Certificateholder information furnished by
the Servicer regarding material changes in the servicing or crediting
procedures required under this Agreement.
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ARTICLE VI
Early Amortization Events
SECTION 6.01. Additional Early Amortization Events. The
occurrence of any of the following events shall, immediately upon the
occurrence thereof without notice or other action on the part of the Trustee or
the Holders of the Certificates, be deemed to be an "Early Amortization Event"
solely with respect to the Certificates:
(a) on any Distribution Date, the Available Subordinated
Amount shall be less than the Required Subordinated Amount (after giving effect
to the distributions to be made on such Distribution Date); or
(b) on any Distribution Date, the balance of the Reserve
Fund is less than the Reserve Fund Required Amount, in each case after giving
effect to all deposits and distributions on such Distribution Date; or
(c) any Servicer Default occurs; or
(d) any Class A Carry-Over Amount or Class B Carry-Over
Amount is outstanding on six consecutive Distribution Dates; or
(e) the ratio (expressed as a percentage) of (x) the
average for each month of the net losses on the Receivables in the Pool (i.e.,
gross losses less Recoveries on any Receivables (including, without limitation,
recoveries from Collateral Security in addition to the products financed by the
Receivables, recoveries from manufacturers, distributors or importers and
Insurance Proceeds)) during any three (3) consecutive calendar months to (y)
the average of the month-end Pool Balances for such three-month period, exceeds
5% on an annualized basis; provided, however, that this clause (e) may be
revised or waived without the consent of the Certificateholders and no such
revision or waiver shall be deemed an amendment of the terms hereof, but shall
be a revision or waiver made in accordance with the terms hereof if, prior to
each such revision or waiver, the Rating Agency Condition is satisfied; or
(f) the average Monthly Payment Rate (x) with respect to
the three (3) Collection Periods included in the period from January through
March of any calendar year is less than 12.0% and (y) with respect to any other
three (3) consecutive Collection Periods is less than 14.0%; provided, however,
that this clause (f) may be revised or waived without the consent of the
Certificateholders and no such revision or waiver shall be deemed an amendment
of the terms hereof, but shall be a revision or waiver made in accordance with
the terms hereof if, prior to each such reversion or waiver, the Rating Agency
Condition is satisfied; or
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(g) the failure to pay the outstanding principal balance
of the Class A Certificates on the Class A Expected Final Payment Date or the
failure to pay the outstanding principal balance of the Class B Certificates on
the Class B Expected Payment Date; or
(h) the sum of all Eligible Investments and amounts on
deposit in the Excess Funding Account and excess funding accounts for all other
Series represents more than 50% of the total assets of the Trust on each of six
or more consecutive Distribution Dates, after giving effect to all payments
made or to be made on such Distribution Dates; and
(i) either (x) at any time during the period from and
including the Closing Date through May 31, 1998, more than 10% of the aggregate
principal amount of Domestic Inventory Receivables that were included in the
Pool Balance on the Closing Date and are then owned by the Trust have not been
paid in full within 491 days following the date of origination thereof or (y)
at any time after May 31, 1998 during any four month period commencing June 1,
October 1 and February 1 of each year (each, an "Origination Period"), more
than 10% of the aggregate principal amount of Domestic Inventory Receivables
that were originated and transferred to the trust during the four month period
commencing sixteen months prior to such Origination Period and are then owned
by the Trust have not been paid in full within 491 days following the date of
origination thereof.
ARTICLE VII
Optional Repurchase
SECTION 7.01. Optional Repurchase.
(a) On any Distribution Date occurring on or after the
date on which the Invested Amount is reduced to 10% or less of the aggregate
principal amount of the Certificates on the Closing Date, the Depositor shall
have the option, subject to the condition set forth in subsection (c) of this
Section 7.01, to purchase the entire amount of, but not less than the entire
amount of, the Certificates, at a purchase price equal to the Reassignment
Amount for such Distribution Date.
(b) The Depositor shall give the Servicer and the Trustee
at least ten (10) days' prior written notice of the Distribution Date on which
the Depositor intends to exercise such purchase option. On the Business Day
immediately prior to such Distribution Date the Depositor shall deposit the
Reassignment Amount into the Collection Account in immediately available funds.
Such purchase option is subject to payment in full of the Reassignment Amount.
The Reassignment Amount shall be distributed as set forth in Section 8.01(b)
hereof.
(c) If at the time the Depositor exercises its purchase
option hereunder the Depositor's long-term unsecured debt has a rating lower
than the lowest investment grade rating of the Rating Agency, the Depositor
shall deliver to the Trustee on such Distribution Date an Opinion of Counsel
(which must be an independent outside counsel) to the effect that,
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in reliance on certain certificates to the effect that the Certificates
purchased by the Depositor constitute fair value for the consideration paid
therefor and as to the solvency of the Depositor, the purchase of the
Certificates would not be considered a fraudulent conveyance under applicable
law.
ARTICLE VIII
Final Distributions
SECTION 8.01. Sale of Certificates Pursuant to Section
2.03 of the Agreement; Distributions Pursuant to Section 7.01 of this Series
Supplement or Section 2.03 or 12.02(c) of the Agreement.
(a) The amount to be paid by the Depositor to the
Collection Account with respect to the Certificates in connection with a
purchase of the Certificates pursuant to Section 2.03 of the Agreement shall
equal the Reassignment Amount for the Distribution Date on which such
repurchase occurs.
(b) With respect to the Reassignment Amount deposited into
the Collection Account pursuant to Section 7.01 of this Series Supplement or
Section 2.03 of the Agreement allocable to the Series 1997-1 Certificates or
any Termination Proceeds allocable to the Series 1997-1 Certificates deposited
into the Collection Account pursuant to Section 12.02(c) of the Agreement, the
Trustee shall, not later than 12:00 noon, New York City time, on the
Distribution Date on which such amounts are deposited (or, if such date is not
a Distribution Date, on the immediately following Distribution Date) apply such
amounts in the following priority: (i) deposit an amount equal to the
Reassignment Amount on such date into the Collection Account and (ii) pay the
remainder of any Termination Proceeds allocable to the Series 1997-1
Certificates to the Holder(s) of the BCRC Certificate and any Supplemental
Certificate(s), pro rata in accordance with the respective percentage interests
thereof.
(c) Notwithstanding anything to the contrary in this
Series Supplement or the Agreement, the entire amount deposited in the
Collection Account pursuant to Section 7.01 of this Series Supplement and
Section 2.03 of the Agreement allocable to the Series 1997-1 Certificates and
all other amounts on deposit therein shall be distributed in full on the
Certificates (up to the remaining outstanding principal amount thereof together
with all accrued and unpaid interest thereon) on such date and any distribution
made pursuant to paragraph (b) above shall be deemed to be a final distribution
pursuant to Section 12.02 of the Agreement with respect to the Certificates.
SECTION 8.02. Distribution of Proceeds of Sale,
Disposition or Liquidation of the Receivables Pursuant to Section 9.02 of the
Agreement.
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(a) Not later than 12:00 noon, New York City time, on the
Distribution Date following the date on which the Trust Liquidation Proceeds
are deposited into the Collection Account pursuant to Section 9.02(b) of the
Agreement, the Trustee at the written direction of the Servicer shall first (in
each case, after giving effect to any deposits and distributions otherwise to
be made on such Distribution Date) deduct an amount equal to the Invested
Amount on such Distribution Date from the portion of the Trust Liquidation
Proceeds allocated to the Series 1997-1 Certificates and distribute such amount
first to Holders of Class A Certificates until the principal balance is reduced
to zero and the remainder to Holders of Class B Certificates up to the
principal balance thereof; provided that the amount of such distribution shall
not exceed the product of the Trust Liquidation Proceeds allocated to Principal
Receivables and the Adjusted Series 1997-1 Allocation Percentage. The
remainder of the portion of the Trust Liquidation Proceeds allocated to the
Principal Receivables shall be allocated as provided in Section 9.02(b) of the
Agreement.
(b) Not later than 12:00 noon, New York City time, on such
Distribution Date, the Trustee shall (in each case, after giving effect to any
deposits and distributions otherwise to be made on such Distribution Date)
deduct an amount equal to the sum of (i) Monthly Interest for such Distribution
Date, (ii) any Monthly Interest previously due but not distributed on the
Certificates on any prior Distribution Date, (iii) the amount of Additional
Interest, if any, for such Distribution Date and any Additional Interest
previously due but not distributed on the Certificates on a prior Distribution
Date, and (iv) any Class A Carry-Over Amount and any Class B Carry-Over Amount
for such Distribution Date and any Class A Carry-Over Amount and any Class B
Carry-Over Amount previously due but not distributed to the Certificateholders
on a prior Distribution Date, from the portion of the Trust Liquidation
Proceeds allocated to Series 1997-1 and distribute such amount first to Class A
Certificates to the extent of such due and unpaid amounts and then to Class B
Certificates to the extent of such due and unpaid amounts provided that the
amount of such distribution shall not exceed the product of Trust Liquidation
Proceeds allocated to Non-Principal Receivables and the Adjusted Series 1997-1
Allocation Percentage (calculated without taking into account the Pre-Allocated
Invested Amount). The remainder of the portion of the Trust Liquidation
Proceeds allocated to Non-Principal Receivables shall be allocated as provided
in Section 9.02(b) of the Agreement.
(c) Notwithstanding anything to the contrary in this
Series Supplement or the Agreement, any distribution made pursuant to this
Section 8.02 shall be deemed to be a final distribution pursuant to Section
12.02 of the Agreement with respect to the Certificates.
ARTICLE IX
Miscellaneous Provisions
SECTION 9.01. Ratification of Agreement. As supplemented
by this Series Supplement, the Agreement is in all respects ratified and
confirmed and the Agreement as so supplemented by this Series Supplement shall
be read, taken and construed as one and the same instrument.
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SECTION 9.02. Counterparts. This Series Supplement 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 9.03. GOVERNING LAW. THIS SERIES SUPPLEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 9.04. Covenant. The Depositor hereby covenants
that any Receivables removed from the Trust pursuant to Section 2.12(a)(ii) of
the Agreement shall not be sold, transferred or otherwise conveyed to the
Servicer.
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IN WITNESS WHEREOF, the Depositor, the Servicer and the
Trustee have caused this Series Supplement to be duly executed by their
respective officers as of the day and year first above written.
BOMBARDIER CREDIT RECEIVABLES
CORPORATION, as 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., as 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, as Trustee,
By: /s/ Lillian K. Peros
-------------------------------------
Name: Lillian K. Peros
Title: Assistant Vice President
[Signature Page to Series 1997-1 Supplement]
<PAGE> 45
EXHIBIT A
FORM OF FACE OF CLASS A CERTIFICATE
Initial
REGISTERED Principal Amount:
Certificate No. A-[____] $________________
BOMBARDIER RECEIVABLES MASTER TRUST
SERIES 1997-1
CLASS A
FLOATING RATE ASSET BACKED CERTIFICATES
evidencing a fractional undivided interest in certain
assets of the
BOMBARDIER RECEIVABLES MASTER TRUST I
the corpus of which consists primarily of a pool of receivables (the
"Receivables") generated from time to time in the ordinary course of business
in a portfolio of revolving financing arrangements entered into by Bombardier
Capital Inc. ("BCI") or an Affiliate of BCI with certain dealers located in the
United States to finance such dealers' consumer, recreational and commercial
product inventory and the corpus of which may, subject to satisfaction of
certain conditions, consist of Receivables arising from extensions of credit
made by BCI or an Affiliate of BCI 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. Such
Receivables may also include financing arrangements otherwise meeting the
description set forth above, but originated by another lender and acquired by
BCI or an Affiliate of BCI upon satisfying BCI's customary underwriting
standards. This certificate (a "Certificate") does not represent any interest
in, or obligation of, Bombardier Credit Receivables Corporation ("BCRC") or any
Affiliate thereof.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
referred to on the reverse side hereof or be valid for any purpose.
THIS CERTIFICATE 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.
<PAGE> 46
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on behalf of the Trust.
BOMBARDIER RECEIVABLES MASTER TRUST I
By: BANKERS TRUST COMPANY, not
in its individual capacity but
solely as Trustee on behalf of
the Trust
By: ________________________
Authorized Officer
Dated: __________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates described in the within-mentioned Pooling and
Servicing Agreement.
BANKERS TRUST COMPANY,
as Trustee,
by ________________________
Authorized Officer
A-2
<PAGE> 47
FORM OF THE REVERSE OF CLASS A CERTIFICATE
This certifies that ____________________ (the "Holder"), is
the registered owner of a fractional undivided interest in certain assets of
the BOMBARDIER RECEIVABLES MASTER TRUST I (the "Trust") created pursuant to a
Pooling and Servicing Agreement dated as of January 1, 1994, as amended and
supplemented from time to time, among Bombardier Capital Inc., as Servicer,
Bombardier Credit Receivables Corporation, as Depositor, and BANKERS TRUST
COMPANY, as trustee (the "Trustee"), that are allocated to the interest
represented by those Floating Rate Class A Asset Backed Certificates, Series
1997-1 (the "Class A Certificates") pursuant to the Pooling and Servicing
Agreement and the Series 1997-1 Supplement dated as of January 1, 1997 (the
"Series Supplement"). The Pooling and Servicing Agreement dated as of January
1, 1994, as amended by Amendment Number 1 to Pooling and Servicing Agreement
dated as of January 1, 1997 and as otherwise from time to time amended and
supplemented, the Variable Funding Supplement dated as of January 1, 1994 (as
amended from time to time, the "Variable Funding Supplement") and the Series
Supplement are herein collectively referred to as the "Pooling and Servicing
Agreement." The corpus of the Trust will include (a) certain Receivables
existing under the Accounts at the close of business on January 1, 1994 (the
"Initial Cut-off Date"), certain Receivables generated under the Accounts from
time to time thereafter, as well as certain Receivables generated in any
Accounts added to the Trust from time to time after the Initial Cut-Off Date,
(b) all funds collected or to be collected in respect of such Receivables, (c)
all funds on deposit in certain accounts of the Trust, (d) an assignment of
BCRC's rights, as purchaser, under the Receivables Purchase Agreement, and (e)
an assignment of a security interest, if any, in certain consumer, recreational
and commercial products financed by the Receivables securing the Receivables
and any other security interest granted to secure the Receivables. Prior to
the issuance of the Class A Certificates, two Series of Investor Certificates
have been issued pursuant to the Pooling and Servicing Agreement, and,
simultaneously with the Class A Certificates, the Floating Rate Class B Asset
Backed Certificates, Series 1997-1 (the Class B Certificates") will be issued.
Additional Series of Investor Certificates may be issued in the future. In
addition, the Variable Funding Certificate and the BCRC Certificate have been
issued and Supplemental Certificates may be issued in the future. The Variable
Funding Certificate, the BCRC Certificate and any Supplemental Certificates
will represent interests in the Trust Assets not represented by the Class A
Certificates or the Class B Certificates or other Series of Investor
Certificates.
The Receivables consist of advances made directly or
indirectly by BCI or an Affiliate of BCI to finance consumer, recreational and
commercial products for dealers located in the United States and may, subject
to the satisfaction of certain conditions, consist of extensions of credit made
by BCI or Affiliates of BCI to dealers to finance working capital needs or to
manufacturers or distributors to finance the manufacturing, production or
inventory of consumer, recreational or commercial products. Such Receivables
may also include financing arrangements otherwise meeting the description set
forth in this paragraph, but originated by another lender and acquired by BCI
or an Affiliate of BCI upon satisfying BCI's customary underwriting standards.
A-3
<PAGE> 48
Subject to the terms and conditions of the Pooling and
Servicing Agreement, the Depositor may from time to time direct the Trustee, on
behalf of the Trust, to issue one or more new Series, which will represent
fractional undivided interests in certain of the Trust Assets.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement to which, as
amended and supplemented from time to time, the Holder by virtue of the
acceptance hereof assents and is bound. Although a summary of certain
provisions of the Pooling and Servicing Agreement is set forth below, this
Certificate does not purport to summarize the Pooling and Servicing Agreement
and reference is made to the Pooling and Servicing Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
A copy of the Pooling and Servicing Agreement (without schedules) may be
requested from the Trustee by writing to the Trustee at Four Albany Street, New
York, New York 10006, Attention: Corporate Trust & Agency Group, Structured
Finance Team. To the extent not defined herein, the capitalized terms used
herein have the meanings ascribed to them in the Pooling and Servicing
Agreement.
The Depositor has entered into the Pooling and Servicing
Agreement and the Class A Certificates and the Class B Certificates
(collectively, the "Certificates") have been issued with the intention that the
Certificates will qualify under applicable tax law as indebtedness of the
Depositor secured by the Receivables. The Depositor and each Holder, by the
acceptance of its Certificate, agrees to treat the Certificates as indebtedness
of the Depositor secured by the Receivables for Federal income taxes, state and
local income and franchise taxes and any other taxes imposed on or measured by
income.
On each Distribution Date, the Trustee shall distribute on
behalf of the Trust to each Holder of record at the close of business on the
day preceding the Distribution Date (each a "Record Date" unless Definitive
Certificates have been issued, in which case Record Date shall be the last day
of the month preceding such Distribution Date) such Holder's pro rata share
(based on the aggregate fractional undivided interest represented by the Class
A Certificates held by such Holder, except as otherwise provided in the Pooling
and Servicing Agreement) of such amounts on deposit in the Collection Account
or the Series 1997-1 Accounts as are payable in respect of such Class A
Certificate pursuant to the Pooling and Servicing Agreement on such
Distribution Date. Distributions with respect to this Certificate will be made
by the Trustee by wire transfer in immediately available funds (except for the
final distribution in respect of this Certificate). Final payment of this
Certificate will be made only upon presentation and surrender of this
Certificate at the office or agency specified in the notice of final
distribution delivered by the Trustee to the Certificateholder in accordance
with the Pooling and Servicing Agreement.
On any Distribution Date occurring on or after the date on
which the Invested Amount is reduced to 10% or less of the aggregate original
principal amount of the Certificates, the Depositor has the option, subject to
the condition set forth in Section 7.01(c) of the Series Supplement, to
purchase the entire amount of the Certificates. The purchase price will be
equal to the Reassignment Amount (as defined in the Series Supplement).
A-4
<PAGE> 49
This Certificate does not represent an obligation of, or an
interest in BCI, BCRC or any Affiliate of any of them and is not insured or
guaranteed by any governmental agency or instrumentality. This Certificate is
limited in right of payment to certain Collections with respect to the
Receivables (and certain other amounts), all as more specifically set forth
herein and in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time in accordance with the terms thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register of the Trustee upon surrender of this
Certificate for registration of transfer at the office or agency of the
Transfer Agent and Registrar in New York City, accompanied by a written
instrument of transfer in form satisfactory to the Trustee or the Transfer
Agent and Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized, and thereupon one or more new Certificates of
authorized denominations evidencing the same aggregate fractional undivided
interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class evidencing like aggregate fractional undivided
interests as requested by the Holder surrendering such Certificates. No
service charge may be imposed for any such exchange but the Transfer Agent and
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
The Depositor, the Servicer, the Trustee, the Transfer Agent
and Registrar and any agent of any of them, may treat the person in whose name
this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Servicer nor the Trustee, the Transfer Agent and
Registrar, nor any agent of any of them, shall be affected by notice to the
contrary except in certain circumstances described in the Pooling and Servicing
Agreement.
A-5
<PAGE> 50
ASSIGNMENT
Social Security or other identifying number of assignee:
______________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(name and address of assignee)
the within certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________________, attorney, to transfer said
certificate on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ____________________ ____________________________*
Signature Guaranteed:
______________________________
__________________________________
* NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the reverse of the within
Certificate in every particular, without alteration, enlargement or
any change whatsoever.
A-6
<PAGE> 51
EXHIBIT B
FORM OF FACE OF CLASS B CERTIFICATE
Initial
REGISTERED Principal Amount:
Certificate No. B-[____] $________________
BOMBARDIER RECEIVABLES MASTER TRUST
SERIES 1997-1
CLASS B
FLOATING RATE ASSET BACKED CERTIFICATES
evidencing a fractional undivided interest in certain
assets of the
BOMBARDIER RECEIVABLES MASTER TRUST I
the corpus of which consists primarily of a pool of receivables (the
"Receivables") generated from time to time in the ordinary course of business
in a portfolio of revolving financing arrangements entered into by Bombardier
Capital Inc. ("BCI") or an Affiliate of BCI with certain dealers located in the
United States to finance such dealers' consumer, recreational and commercial
product inventory and the corpus of which may, subject to satisfaction of
certain conditions, consist of Receivables arising from extensions of credit
made by BCI or an Affiliate of BCI 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. Such
Receivables may also include financing arrangements otherwise meeting the
description set forth above, but originated by another lender and acquired by
BCI or an Affiliate of BCI upon satisfying BCI's customary underwriting
standards. This certificate (a "Certificate") does not represent any interest
in, or obligation of, Bombardier Credit Receivables Corporation ("BCRC") or any
Affiliate thereof.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
referred to on the reverse side hereof or be valid for any purpose.
<PAGE> 52
THIS CERTIFICATE 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.
B-2
<PAGE> 53
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on behalf of the Trust.
BOMBARDIER RECEIVABLES MASTER TRUST I
By: BANKERS TRUST COMPANY, not
in its individual capacity but
solely as Trustee on behalf of
the Trust
By: ________________________
Authorized Officer
Dated: ____________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates described in the within-mentioned Pooling and
Servicing Agreement.
BANKERS TRUST COMPANY,
as Trustee,
by ________________________
Authorized Officer
B-3
<PAGE> 54
FORM OF THE REVERSE OF CLASS B CERTIFICATE
This certifies that ____________________ (the "Holder"), is
the registered owner of a fractional undivided interest in certain assets of
the BOMBARDIER RECEIVABLES MASTER TRUST I (the "Trust") created pursuant to a
Pooling and Servicing Agreement dated as of January 1, 1994, as amended and
supplemented from time to time, among Bombardier Capital Inc., as Servicer,
Bombardier Credit Receivables Corporation, as Depositor, and BANKERS TRUST
COMPANY, as trustee (the "Trustee"), that are allocated to the interest
represented by those Floating Rate Class B Asset Backed Certificates, Series
1997-1 (the "Class B Certificates") pursuant to the Pooling and Servicing
Agreement and the Series 1997-1 Supplement dated as of January 1, 1997 (the
"Series Supplement"). The Pooling and Servicing Agreement dated as of January
1, 1994, as amended by Amendment Number 1 to Pooling and Servicing Agreement
dated as of January 1, 1997 and as otherwise from time to time amended and
supplemented, the Variable Funding Supplement dated as of January 1, 1994 (as
amended from time to time, the "Variable Funding Supplement") and the Series
Supplement are herein collectively referred to as the "Pooling and Servicing
Agreement." The corpus of the Trust will include (a) certain Receivables
existing under the Accounts at the close of business on January 1, 1994 (the
"Initial Cut-off Date"), certain Receivables generated under the Accounts from
time to time thereafter, as well as certain Receivables generated in any
Accounts added to the Trust from time to time after the Initial Cut-Off Date,
(b) all funds collected or to be collected in respect of such Receivables, (c)
all funds on deposit in certain accounts of the Trust, (d) an assignment of
BCRC's rights, as purchaser, under the Receivables Purchase Agreement, and (e)
an assignment of a security interest, if any, in certain consumer, recreational
and commercial products financed by the Receivables securing the Receivables
and any other security interest granted to secure the Receivables. Prior to
the issuance of the Class B Certificates, two Series of Investor Certificates
have been issued pursuant to the Pooling and Servicing Agreement, and,
simultaneously with the Class B Certificates, the Floating Rate Class A Asset
Backed Certificates, Series 1997-1 (the "Class A Certificates") will be issued.
Additional Series of Investor Certificates may be issued in the future. In
addition, the Variable Funding Certificate and the BCRC Certificate have been
issued and Supplemental Certificates may be issued in the future. The Variable
Funding Certificate, the BCRC Certificate and any Supplemental Certificate will
represent interests in the Trust Assets not represented by the Class B
Certificates or the Class A Certificates or other Series of Investor
Certificates.
The Receivables consist of advances made directly or
indirectly by BCI or an Affiliate of BCI to finance consumer, recreational and
commercial products for dealers located in the United States and may, subject
to the satisfaction of certain conditions, consist of extensions of credit made
by BCI or Affiliates of BCI to dealers, to finance working capital needs or to
manufacturers or distributors to finance the manufacturing, production or
inventory of consumer, recreational or commercial products. Such Receivables
may also include financing arrangements otherwise meeting the description set
forth in this paragraph, but originated by another lender and acquired by BCI
or an Affiliate of BCI upon satisfying BCI's customary underwriting standards.
B-4
<PAGE> 55
Subject to the terms and conditions of the Pooling and
Servicing Agreement, the Depositor may from time to time direct the Trustee, on
behalf of the Trust, to issue one or more new Series, which will represent
fractional undivided interests in certain of the Trust Assets.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement to which, as
amended and supplemented from time to time, the Holder by virtue of the
acceptance hereof assents and is bound. Although a summary of certain
provisions of the Pooling and Servicing Agreement is set forth below, this
Certificate does not purport to summarize the Pooling and Servicing Agreement
and reference is made to the Pooling and Servicing Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
A copy of the Pooling and Servicing Agreement (without schedules) may be
requested from the Trustee by writing to the Trustee at Four Albany Street, New
York, New York 10006, Attention: Corporate Trust & Agency Group, Structured
Finance Team. To the extent not defined herein, the capitalized terms used
herein have the meanings ascribed to them in the Pooling and Servicing
Agreement.
The Depositor has entered into the Pooling and Servicing
Agreement and the Class A Certificates and the Class B Certificates
(collectively, the "Certificates") have been issued with the intention that the
Certificates will qualify under applicable tax law as indebtedness of the
Depositor secured by the Receivables. The Depositor and each Holder, by the
acceptance of its Certificate, agrees to treat the Certificates as indebtedness
of the Depositor secured by the Receivables for Federal income taxes, state and
local income and franchise taxes and any other taxes imposed on or measured by
income.
On each Distribution Date, the Trustee shall distribute on
behalf of the Trust to each Holder of record at the close of business on the
day preceding the Distribution Date (each a "Record Date" unless Definitive
Certificates have been issued, in which case, Record Date shall be the last day
of the month preceding such Distribution Date) such Holder's pro rata share
(based on the aggregate fractional undivided interest represented by the Class
B Certificates held by such Holder, except as otherwise provided in the Pooling
and Servicing Agreement and provided that payment of the Class B Certificates
is subordinate to payment of the Class A Certificates to the extent provided in
the Pooling and Servicing Agreement) of such amounts on deposit in the
Collection Account or the Series 1997-1 Accounts as are payable in respect of
such Class B Certificate pursuant to the Pooling and Servicing Agreement on
such Distribution Date. Distributions with respect to this Certificate will be
made by the Trustee by wire transfer in immediately available funds (except for
the final distribution in respect of this Certificate). Final payment of this
Certificate will be made only upon presentation and surrender of this
Certificate at the office or agency specified in the notice of final
distribution delivered by the Trustee to the Certificateholder in accordance
with the Pooling and Servicing Agreement.
On any Distribution Date occurring on or after the date on
which the Invested Amount is reduced to 10% or less of the aggregate original
principal amount of the Certificates, the Depositor has the option, subject to
the condition set forth in Section 7.01(c) of the Series Supplement, to
purchase the entire amount of the Certificates. The purchase price will be
equal to the Reassignment Amount (as defined in the Series Supplement).
B-5
<PAGE> 56
This Certificate does not represent an obligation of, or an
interest in BCI, BCRC or any Affiliate of any of them and is not insured or
guaranteed by any governmental agency or instrumentality. This Certificate is
limited in right of payment to certain Collections with respect to the
Receivables (and certain other amounts), all as more specifically set forth
herein and in the Pooling and Servicing Agreement and is limited to the extent,
that, under the terms of the Pooling and Servicing Agreement, the Class B
Certificates share in the distribution of Collections is subordinated to the
rights of the holders of the Class A Certificates.
The Pooling and Servicing Agreement may be amended from time
to time in accordance with the terms thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register of the Trustee upon surrender of this
Certificate for registration of transfer at the office or agency of the
Transfer Agent and Registrar in New York City, accompanied by a written
instrument of transfer in form satisfactory to the Trustee or the Transfer
Agent and Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized, and thereupon one or more new Certificates of
authorized denominations evidencing the same aggregate fractional undivided
interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class evidencing like aggregate fractional undivided
interests as requested by the Holder surrendering such Certificates. No
service charge may be imposed for any such exchange but the Transfer Agent and
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
The Depositor, the Servicer, the Trustee, the Transfer Agent
and Registrar and any agent of any of them, may treat the person in whose name
this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Servicer nor the Trustee, the Transfer Agent and
Registrar, nor any agent of any of them, shall be affected by notice to the
contrary except in certain circumstances described in the Pooling and Servicing
Agreement.
B-6
<PAGE> 57
ASSIGNMENT
Social Security or other identifying number of assignee:
________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
______________________________________________________________________________
______________________________________________________________________________
(name and address of assignee)
the within certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________________, attorney, to transfer said
certificate on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ____________________ __________________________*
Signature Guaranteed:
____________________________
_______________________
* NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the reverse of the within
Certificate in every particular, without alteration, enlargement or
any change whatsoever.
B-7
<PAGE> 58
EXHIBIT C
FORM OF DISTRIBUTION DATE STATEMENT(1)
Distribution Date: __________, [199__] [200_]
<TABLE>
<S> <C> <C>
1. Amount of principal paid or distributed:
(a) Class A Certificates: $__________
($____ per $1,000 original principal amount
of Class A Certificates)
(b) Class B Certificates: $__________
($____ per $1,000 original principal amount
of Class B Certificates)
2. Floating Allocation Percentage for such
Collection Period(2):
3. Principal Allocation Percentage for such
Collection Period(2):
4. Amount of interest paid or distributed:
(a) Class A Certificates: $__________
($____ per $1,000 original principal amount
of Class A Certificates)
(b) Class B Certificates: $__________
($____ per $1,000 original principal amount
of Class B Certificates)
5. Investor Default Amount for such Distribution
Date: $__________
6. Required Subordination Draw Amount, if any,
for the preceding Collection Period (or for
such Distribution Date): $__________
</TABLE>
__________________________________
1 To be prepared by the Servicer at least 4 Business Days prior to each
Distribution Date and forwarded by the Trustee to each
Certificateholder of record on each Distribution Date pursuant to
Section 5.02(a) of this Series Supplement.
2 After the Series 1994-1 Final Payment Date, such percentage for any
Collection Period shall be the average thereof for each Deposit Date
in the Collection Period.
<PAGE> 59
<TABLE>
<S> <C> <C>
7. Amount of:
(a) Investor Charge-Offs for the preceding
Collection Period: $__________
(b) reimbursements of Investor Charge-Offs
for the preceding Collection Period: $__________
8. Amount of Class A Carryover Amount being paid
or distributed (if any) and amount remaining
(if any):
(a) Distributed: $__________
($____ per $1,000 original principal amount
of Class A Certificates)
(b) Balance: $__________
($____ per $1,000 original principal amount
of Class A Certificates)
9. Amount of Class B Carryover Amount being paid
or distributed (if any) and amount remaining
(if any): $__________
(a) Distributed: $__________
($____ per $1,000 original principal amount
of Class B Certificates)
(b) Balance: $__________
($_____ per $1,000 original principal amount
of Class B Certificates)
10. Pool Balance at end of related Collection
Period: $__________
11. After giving affect to distributions on this
Distribution Date:
(a) Outstanding principal amount of Class A
Certificates: $__________
(b) Outstanding principal amount of Class B
Certificates: $__________
</TABLE>
C-2
<PAGE> 60
<TABLE>
<S> <C> <C>
(c) Certificate Balance: $__________
(d) Pool Factor for Class A Certificates(3): __________
(e) Pool Factor for Class B Certificates(4): __________
12. Applicable Interest Rate:
(a) In general:
(1) LIBOR for the period from the
previous Distribution Date to
this Distribution Date was
____%; and
(2) the Net Receivables Rate
was ____%
(b) Class A Rate: LIBOR plus 0.12%
(c) Class B Rate: LIBOR plus 0.33%
13. (a) Amount of Monthly Servicing Fee for the
preceding Collection Period: $__________
($____ per $1,000 original principal amount
of Certificates)
</TABLE>
__________________________________
3 Consisting of an eleven-digit decimal expressing the Invested Amount
allocable to the Class A Certificates for such Distribution Date
(determined after taking into account any reduction in the Invested
Amount allocable to the Class A Certificates which will occur on such
Distribution Date) as a percentage of the Adjusted Invested Amount
allocable to the Class A Certificates.
4 Consisting of an eleven-digit decimal expressing the Invested Amount
allocable to the Class B Certificates for such Distribution Date
(determined after taking into account any reduction in the Invested
Amount allocable to the Class B Certificates which will occur on such
Distribution Date) as a percentage of the Adjusted Invested Amount
allocable to the Class B Certificates.
C-3
<PAGE> 61
<TABLE>
<S> <C> <C>
(b) Amount of Excess Servicing Fee being
distributed and remaining balance (if
any):
(1) Distributed: $__________
($____ per $1,000 original principal amount
of Certificates)
(2) Balance: $__________
($____ per $1,000 original principal amount
of Certificates)
14. Invested Amount on this Distribution Date
(after giving effect to all distributions
which will occur on such Distribution Date): $__________
15. The Available Subordinated Amount
on the immediately preceding
Distribution Date: $__________
On this Distribution Date: $__________
16. The Incremental Subordinated Amount on the
immediately preceding Distribution Date: $__________
17. The Reserve Fund balance for this
Distribution Date: $__________
18. The Excess Funding Account Balance for this
Distribution Date: $__________(5)
[19. Amount in the Excess Funding Account at the
beginning of an Early Amortization Period or
Initial Amortization Period to be distributed
as a payment of principal in respect to:
(a) Class A Certificates: $__________
</TABLE>
__________________________________
5 To be included for each Distribution Date during the Revolving Period
and the Amortization Period.
C-4
<PAGE> 62
<TABLE>
<S> <C> <C>
(b) Class B Certificates (only if Class A
Certificates have been paid in full): $__________](6)
20. The Collection Account balance with respect $___________
to this Distribution Date:
21. An Early Amortization Event has occurred: Yes/No
22. The Servicer has elected not to extend the
Initial Principal Payment Date: Yes/No
23. The ratio (expressed as a percentage) of (x)
the average for each month of the net losses
on the Receivables in the Pool(7) during any 3
consecutive calendar months to (y) the
average of the month-end Pool Balances for
such three-month period is: ____%(8)
24. Three-Month Payment Rate for the three (3)
consecutive Collection Periods included in
the period from _______ through ________
Three month Payment Rate:
November
%
</TABLE>
__________________________________
(6) To be included for the first Distribution Date in any Early
Amortization Period or Initial Amortization Period.
(7) i.e., gross losses less Recoveries on any Receivables (including,
without limitation, recoveries from Collateral Security in addition to
the products financed by the Receivables, recoveries from
manufacturers, distributors or importers and Insurance Proceeds).
(8) An Early Amortization Event will occur if this ratio exceeds 5% on an
annualized basis unless the ratio requirement is amended or waived
after the Rating Agency Condition has been satisfied.
C-5
<PAGE> 63
<TABLE>
<S> <C>
December %
January: %
Three month Average Payment Rate: %
A Three-Month Payment Rate Trigger has
occurred: No/Yes
25. Portfolio Yield %
26. Inventory Aging as of the end of the
Collection Period:
0 - 120 days %
120 - 180 days %
181 - 270 days %
Over 270 %
27. Optional removal of Receivables aged greater
than 450 days 0.00%
28. Eligible Investments on deposit in the Excess
Funding Account and amounts on deposit in the
Excess Funding Accounts for all other Series
on the Distribution Date as a percentage of
the assets of the Trust:
____%
Has an asset composition Event Occurred:
No
29. Cumulative amount of 491 Day Aged Receivables
made ineligible during Collection Period:
$_________
Cumulative amount of 491 Day Aged Receivables
made Ieligibles from Closing Date to current
Collection Period (pre June 1, 1998) or
during current Origination Period (post
May 31, 1998):
Put Limit: $_________
Has an Early Amortization Event Occurred: $_________
No
</TABLE>
C-6
<PAGE> 64
<TABLE>
<S> <C> <C>
30. Principal Amount of Receivables subject to a
Participation Interest at end of Collection
Period: $ 0
31. Product Line Breakdown
Bombardier: %
Marine: %
Recreational Vehicles: %
CEA: %
Manufactured Housing: %
Other: %
Total: %
32. Overconcentration Amounts: 0
Designated Manufacturer Concentration:
Industry Overconcentrations: 0
Dealer Overconcentrations: 0
Manufacturer Overconcentrations: 0
Total Overconcentration Amounts: 0
0
33. Total Investor Default Amount allocable to
1997-1 for Collection Period: $________
34. Total Investor Default Amount at end of
Collection Period relating to non payment of
at least $150 of interest due more than 90
days: $________
35. Amount of Receivable purchased by the trust
at a discount during Collection Period: $ 0
36. Has an automatic Addition of Accounts
Occurred: No
37. Pool data on Receivables added as Automatic
Account Additions
</TABLE>
C-7
<PAGE> 65
SCHEDULE 1
Name of Series Depository Institution
1997-1 Account and Account No.
- ---------------------- ---------------------------
Excess Funding Account Bankers Trust Company/21781
Reserve Fund Bankers Trust Company/21780
<PAGE> 1
EXECUTION COPY
================================================================================
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
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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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
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.
<PAGE> 7
"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
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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<PAGE> 12
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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<PAGE> 14
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
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<PAGE> 15
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.
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<PAGE> 16
"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.
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<PAGE> 17
"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
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<PAGE> 18
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%.
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"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
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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).
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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
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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;
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(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
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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),
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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;
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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:
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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
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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.
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(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
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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:
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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
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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.
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
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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, 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.
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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
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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.
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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 Certificate) by the Servicer, the
Depositor, the Trustee and BCI (if BCI is not the Servicer) without
the consent of any of the Certificateholders, provided that such
action shall not, as evidenced by an Opinion of Counsel for the
Depositor, addressed and delivered to the Trustee, adversely affect in
any material respect the interests of any Certificateholder or the
Holder of the Variable Funding Certificate. Notwithstanding anything
contained herein to the contrary, (i) the Trustee, with the consent of
any Enhancement Providers, may at any time and from time to time
amend, modify or supplement the form of Distribution Date Statement
(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
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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
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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
<PAGE> 39
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
<PAGE> 40
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
<PAGE> 41
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
<PAGE> 42
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: Assistant Vice President
37
37
<PAGE> 43
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
<PAGE> 44
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
<PAGE> 45
(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
<PAGE> 46
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
<PAGE> 1
EXECUTION COPY
===============================================================================
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
===============================================================================
<PAGE> 2
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C>
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 andWarranties 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
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
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<S> <C>
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 8.01. Amendment.
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
</TABLE>
ii
<PAGE> 4
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:
<PAGE> 5
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
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effective which (i) with respect to those amendments set forth in ARTICLES II,
VII, VIII and Sections 3.01 and 3.03 shall be the date of execution
and delivery of this Amendment by each of the parties hereto as
specified on the signature page hereto and (ii) with respect to those
amendments set forth in all other Sections and Articles of this
Amendment shall be the day 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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<PAGE> 7
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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<PAGE> 10
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:
(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
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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:
(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
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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 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
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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 which
were amended to conform to the amendments made to Section 2.06 by such
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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
<PAGE> 16
(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
<PAGE> 17
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
<PAGE> 18
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
<PAGE> 19
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
<PAGE> 20
"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
<PAGE> 21
(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;
(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 2.06 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
<PAGE> 22
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
<PAGE> 1
EXECUTION COPY
================================================================================
BOMBARDIER CREDIT RECEIVABLES CORPORATION,
Depositor,
BOMBARDIER CAPITAL INC.,
Servicer,
and
BANKERS TRUST COMPANY,
Trustee
_____________________________
AMENDMENT NUMBER 1
Dated as of January 1, 1997
to
VARIABLE FUNDING SUPPLEMENT
Dated as of January 1, 1994
to
POOLING AND SERVICING AGREEMENT
Dated as of January 1, 1994
_____________________________
BOMBARDIER RECEIVABLES MASTER TRUST I
Variable Funding Certificate
===============================================================================
<PAGE> 2
<TABLE>
<S> <C>
TABLE OF CONTENTS
ARTICLE I
Effective Dates; Amendment to Provisions
Relating to Conflicting Terms and Provisions
SECTION 1.01. Effective Date of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Amendment Relating to Conflicting Terms and Provisions . . . . . . . . . . . . . . . 1
ARTICLE II
Definitions
SECTION 2.01. Current Amendments to Definitions . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.02. Delayed Amendments to Definitions . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III
Delayed Amendments Relating to
Allocation and Application of Collections
SECTION 3.01. Amendments Relating to Allocations and Payments to Holder
of Retained Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE IV
Current Amendments Relating to
Allocation and Application of Collections
SECTION 4.01. Amendment of Section 4.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE V
Current Amendments Relating to Final Distribution Provisions
SECTION 5.01. Amendment Relating to Section 6.01(b) . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 5.02. Amendment Relating to Section 6.02 (a) and (b) . . . . . . . . . . . . . . . . . . 5
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
ARTICLE VI
Current Amendments to Text of Variable Funding Certificate
SECTION 6.01. Amendment to Form of Face of Certificate . . . . . . . . . . . . . . . . . . . . . 5
SECTION 6.02. Amendment to Form of Reserve Certificate . . . . . . . . . . . . . . . . . . . . . 5
SECTION 6.03. Substitution of Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 7.02. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
ii
<PAGE> 4
THIS AMENDMENT NUMBER 1 TO VARIABLE FUNDING SUPPLEMENT dated
as of January 1, 1997 (the "Amendment"), 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, amends that VARIABLE FUNDING SUPPLEMENT dated
as of January 1, 1994 (the "Original Variable Funding Supplement") also among
the Depositor, the Servicer and the Trustee.
Pursuant to Section 6.03 of the Pooling and Servicing
Agreement dated as of January 1, 1994 (as amended and supplemented, the
"Agreement"), the Depositor directed the Trustee to issue, on behalf of the
Trust, a Variable Funding Certificate representing fractional undivided
interests in the Trust, and the terms of the Variable Funding Certificate are
set forth in the Original Variable Funding Supplement as amended and
supplemented (the "Variable Funding Supplement").
Section 13.01 of the Agreement provides that, under the
circumstances and subject to the conditions set forth therein, the Agreement
and any Supplement thereto may be amended from time to time. In accordance
therewith, by execution and delivery of this Amendment, the parties hereby
amend the Original Variable Funding Supplement to the extent and on the terms
set forth in this Amendment.
ARTICLE I
Effective Dates; Amendment to Provisions Relating to Conflicting Terms and
Provisions
SECTION 1.01. Effective Date of Amendments. The effective
date of the Amendments set forth herein shall be the date of execution and
delivery of this Amendment by each of the parties hereto as specified on the
signature page hereto except that those amendments contained in Section 2.02
and in Article III of this Amendment shall have an effective date on the day
after the "Series 1994-1 Final Payment Date" which term shall mean the date on
which the full amount of the principal amount of the Investor Certificates
designated as Series 1994-1 (the "Series 1994-1 Certificates") and all interest
accrued thereon have been paid in full.
SECTION 1.02. Amendment Relating to Conflicting Terms and
Provisions. Subsection (b) of Section 1.02 of the Original Variable Funding
Supplement is hereby amended effective 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:
(b) In the event that any term or provision contained herein
shall conflict with or be inconsistent with any term or provision
contained in the Agreement, the terms and provisions of the Agreement
shall govern.
<PAGE> 5
ARTICLE II
Definitions
SECTION 2.01. Current Amendments to Definitions. The
following definitions contained in the Original Variable Funding Supplement are
hereby amended or, to the extent the definitions set forth below in this
Section 2.01 are terms not contained in the Original Variable Funding
Supplement, are hereby added to Section 2.01 thereof in the appropriate
alphabetical sequence, in each case, effective on the date of execution and
delivery of this Amendment by each of the parties hereto as specified on the
signature page hereto:
"Retained Certificate" shall mean the "Retained Interest" as
defined in Section 4.01 of the Agreement.
"Termination Date" shall mean the Trust Termination Date.
"Variable Funding Default Amount" shall mean, with respect to
any Distribution Date, an amount equal to the product of (a) the
Defaulted Amount for each day of the related Collection Period and (b)
the Variable Funding Percentage for each such day.
SECTION 2.02. Delayed Amendments to Definitions. The
following definitions contained in the Original Variable Funding Supplement is
hereby amended effective on the day following the Series 1994-1 Final Payment
Date:
"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.
"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; 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.
2
<PAGE> 6
ARTICLE III
Delayed Amendments Relating to
Allocation and Application of Collections
SECTION 3.01. Amendments Relating to Allocations and Payments
to Holder of Retained Interest. Section 4.01 of the Original Variable Funding
Supplement is hereby amended effective the day following the Series 1994-1
Final Payment Date to read in its entirety as follows:
SECTION 4.01. Allocations; Payments to Holder of Retained
Interest.
(a) Non-Principal Collections and Principal Collections, as
they relate to the Variable Funding Certificate, shall be allocated
and distributed as set forth in Section 4.03 of the Agreement and in
this Article.
(b) The Servicer shall on each Deposit Date allocate to the
Holder of the Variable Funding Certificate an amount equal to the
Variable Funding Percentage of the amount of Collections on such
Deposit Date; the Servicer need not deposit such amount so allocated
into the Collection Account and instead shall pay such amounts as
collected to the Holders of the Variable Funding Certificate;
provided, however, that the Servicer shall (i) on each Distribution
Date withdraw and pay to itself from amounts on deposit in the
Collection Account and otherwise payable to the Holder of the Variable
Funding Certificate, if any, an amount equal to the Monthly Servicing
Fee for the preceding Collection Period and (ii) on each Deposit Date
thereafter, pay to itself from amounts otherwise payable to the Holder
of the Variable Funding Certificate on such date the amount, if any,
by which such Monthly Servicing Fee exceeded the sum of (x) the amount
so withdrawn on such Distribution Date pursuant to clause (i) and (y)
the aggregate amount previously withdrawn with respect to such
Distribution Date under this clause (ii).
The payments to be made pursuant to this Section 4.01(b) do
not apply to amounts that do not represent Collections, including
Miscellaneous Payments, payment of the purchase price for any
Certificates pursuant to Section 2.03 of the Agreement or the
provisions of any applicable Supplement, and proceeds from the sale,
disposition or liquidation of Receivables pursuant to Section 9.02 or
12.02 of the Agreement (which proceeds from the sale, disposition or
liquidation will be distributed in accordance with Article VI).
3
<PAGE> 7
ARTICLE IV
Current Amendments Relating to
Allocation and Application of Collections
SECTION 4.01. Amendment of Section 4.02. Section 4.02 of the
Original Variable Funding Supplement is hereby amended 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 Section 4.02 as contained in the Original
Variable Funding Supplement and to add the following provision as Section 4.02.
Section 4.02 shall read in its entirety as follows:
SECTION 4.02. Special Provisions Relating to Allocations. (a)
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.
(b) With respect to the allocation of Non-Principal
Collections among 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.
ARTICLE V
Current Amendments Relating to Final Distribution Provisions
SECTION 5.01. Amendment Relating to Section 6.01(b).
Subsection (b) of Section 6.01 of the Original Variable Funding Supplement is
hereby amended effective 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:
(b) With respect to amounts deposited into the Collection
Account pursuant to Section 2.03 of the Agreement allocable to the
Variable Funding Certificate, or any Termination Proceeds deposited
into the Collection Account pursuant to Section 12.02(c) of the
Agreement allocable to the Variable Funding Certificate, the Trustee
shall, not later than 12:00 noon, New York City time, on the
Distribution Date on which such amounts are deposited (or, if such
date is not a Distribution Date, on the immediately following
Distribution Date) apply such amounts in the following priority: (i)
pay to the Holder of
4
<PAGE> 8
the Variable Funding Certificate an amount equal to the sum of (x) the
Variable Funding Amount on such date and (y) the Non-Principal
Collections for the previous Collection Period multiplied by the
Variable Funding Percentage for such Distribution Date, up to the
Reassignment Amount for the Variable Funding Certificate, and (ii) pay
the remainder of any Termination Proceeds pro rata to the Holder(s) of
the BCRC Certificate and any Supplemental Certificate.
SECTION 5.02. Amendment Relating to Section 6.02 (a) and (b).
Subsection (a) and Subsection (b) of Section 6.02 of the Original Variable
Funding Supplement are each hereby amended effective the date of execution and
delivery of this Amendment by each of the parties hereto as specified on the
signature page hereto by deleting the word "first" which appears prior to the
parenthetical provision in each such subsection.
ARTICLE VI
Current Amendments to Text of Variable Funding Certificate
SECTION 6.01. Amendment to Form of Face of Certificate. The
paragraph on the Form of Face of Variable Funding Certificate immediately
following the caption 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:
Evidencing an interest in a trust, the corpus of which
consists primarily of a pool of receivables (the
"Receivables") generated from time to time in the ordinary
course of business in a portfolio of revolving financing
arrangements entered into by Bombardier Capital Inc.("BCI") or
an Affiliate of BCI with certain dealers located in the United
States to finance such dealers' consumer, recreational and
commercial product inventory and the corpus of which may in
the future consist of accounts resulting from the extensions
of credit made by BCI or Affiliates of BCI to dealers to
finance working capital needs or to manufacturers or
distributors to finance the manufacturing, production or
inventory of consumer, recreational or commercial products.
Such Receivables may also include financing arrangements
otherwise meeting the description set forth in this paragraph,
but originated by another lender and acquired by BCI or an
Affiliate of BCI upon satisfying BCI's customary underwriting
standards. This certificate (a "Certificate") does not
represent any interest in, or obligation of, Bombardier Credit
Receivables Corporation ("BCRC") or any Affiliate thereof.
SECTION 6.02. Amendment to Form of Reserve Certificate. The
first and second paragraphs of the Form of Reverse of Variable Funding
Certificate contained in Exhibit A to the Original Variable Funding
Supplemented are 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 their entirety as follows:
5
<PAGE> 9
This certifies that ____________________ (the "Holder"), is
the registered owner of a fractional undivided interest in certain
assets of the BOMBARDIER RECEIVABLES MASTER TRUST I (the "Trust")
created pursuant to a Pooling and Servicing Agreement dated as of
January 1, 1994, as amended and supplemented from time to time, among
Bombardier Capital Inc., as Servicer, Bombardier Credit Receivables
Corporation, as Depositor, and BANKERS TRUST COMPANY, as trustee (the
"Trustee"), that are allocated to the interest represented by the
Variable Funding Certificate (the "Certificate") pursuant to the
Pooling and Servicing Agreement and the Variable Funding Supplement
dated as of January 1, 1994, as amended and supplemented (the
"Variable Funding Supplement"). The Pooling and Servicing Agreement
dated as of January 1, 1994, as amended by Amendment Number 1 to
Pooling and Servicing Agreement dated as of January 1, 1997 and as
otherwise from time to time amended and supplemented and the Variable
Funding Supplement are herein collectively referred to as the "Pooling
and Servicing Agreement." The corpus of the Trust will include (a)
certain Receivables existing under the Accounts at the close of
business on January 1, 1994 (the "Initial Cut-off Date"), certain
Receivables generated under the Accounts from time to time thereafter,
as well as certain Receivables generated in any Accounts added to the
Trust from time to time after the Initial Cut-Off-Date, (b) all funds
collected or to be collected in respect of such Receivables, (c) all
funds on deposit in certain accounts of the Trust, (d) an assignment
of BCRC's rights, as purchaser, under the Receivables Purchase
Agreement, and (e) an assignment of a security interest, if any, in
certain consumer, recreational and commercial products financed by the
Receivables securing the Receivables and any other security interests
granted to secure the Receivables. In addition to the Variable
Funding Certificate, multiple Series of Investor Certificates and the
BCRC Certificate have been issued pursuant to the Pooling and
Servicing Agreement. Additional Series of Investor Certificates and a
Supplemental Certificate may be issued in the future. The Variable
Funding Certificate, the BCRC Certificate and any Supplemental
Certificates represent interests in the Trust Assets not represented
by the Investor Certificates.
The Receivables consist of advances made directly or
indirectly by BCI or an Affiliate of BCI to consumer, recreational and
commercial products dealers located in the United States and may in
the future also consist of extensions of credit made by BCI or
Affiliates of BCI to dealers, manufacturers and/or distributors to
finance working capital needs or the manufacturing, production or
inventory of consumer, recreational or commercial products. Such
Receivables may also include financing arrangements otherwise meeting
the description set forth in this paragraph, but originated by another
lender and acquired by BCI or an Affiliate of BCI upon satisfying
BCI's customary underwriting standards.
SECTION 6.03. Substitution of Certificate. Following the
execution and delivery of this Amendment, the Servicer shall prepare and
present to the Trustee for authentication and delivery to the Holder of the
Variable Funding Certificate upon surrender of the existing certificate a
substitute Variable Funding Certificate which shall be identical in all
respects to the then Outstanding Variable Funding Certificate except that the
paragraphs set forth above in this Article shall be substituted for the
corresponding paragraphs in the existing certificate. In lieu of preparation
of a new Variable Funding Certificate, the Servicer may prepare and present to
the
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Trustee for delivery to the Holder of the Variable Funding Certificate an
allonge to the certificate to amend the such paragraphs to read as set forth in
Sections 6.01 and 6.02 of this Amendment.
ARTICLE VII
Miscellaneous
SECTION 7.01. 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 7.02. Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
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IN WITNESS WHEREOF, the Seller, the Purchaser and the Trustee
have caused this Amendment Number 1 to the Variable Funding Supplement 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
to Variable Funding Supplement is January 23, 19976.
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
BANKERS TRUST COMPANY,
as Trustee
By: /s/ Lillian K. Peros
--------------------------------------
Name: Lillian K. Peros
Title: Assistant Vice President
