Exhibit 4.6
BOMBARDIER CREDIT RECEIVABLES CORPORATION,
Depositor,
BOMBARDIER CAPITAL INC.,
Servicer,
and
BANKERS TRUST COMPANY,
Trustee
---------------------------------------
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
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TABLE OF CONTENTS
Page
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ARTICLE I
Creation of the Variable Funding Certificate
SECTION 1.01. Designation........................................................................................1
ARTICLE II
Definitions
SECTION 2.01. Definitions........................................................................................1
ARTICLE III
Servicing Fee
SECTION 3.01. Servicing Compensation.............................................................................3
ARTICLE IV
Rights of Holder of the Variable Funding Certificate and
Allocation and Application of Collections
SECTION 4.01. Allocations; Payments to Holder of Retained Interest................................................4
SECTION 4.02. Application of Funds in Series Accounts Following a Liquidation Event...............................4
ARTICLE V
Distributions and Reports to
Holder of the Variable Funding Certificate
SECTION 5.01. Distributions.......................................................................................5
SECTION 5.02. Reports and Statements to Holder of the Variable Funding Certificate...............................5
ARTICLE VI
Final Distributions
SECTION 6.01. Sale of Variable Funding Interest Pursuant to Section 2.03 of the
Agreement; Distributions Pursuant to Section 2.03 or 12.02(c) of the Agreement....................................5
SECTION 6.02. Distribution of Proceeds of Sale, Disposition or Liquidation
of the Receivables Pursuant to Section 9.02 of the Agreement......................................................6
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ARTICLE VII
Miscellaneous Provisions
SECTION 7.01. Ratification of Agreement...........................................................................7
SECTION 7.02. Counterparts........................................................................................7
SECTION 7.03. Governing Law.......................................................................................7
EXHIBITS
Exhibit A Form of Variable Funding Certificate
Exhibit B Form of Distribution Date Statement
ii
VARIABLE FUNDING SUPPLEMENT dated as of January 1, 1994 (the "Variable
Funding 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, a Variable Funding
Certificate representing fractional undivided interests in the Trust. The terms
of the Variable Funding Certificate are to be set forth in a Supplement to the
Agreement. Pursuant to this Variable Funding Supplement, the Depositor and the
Trustee shall create and specify the terms thereof.
ARTICLE I
Creation of the Variable Funding Certificate
SECTION 1.01. Designation. (a) There is hereby created a Variable Funding
Certificate to be issued pursuant to the Agreement and this Variable Funding
Supplement to be known as the "Variable Funding Certificate".
(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 Variable Funding Supplement shall govern.
ARTICLE II
Definitions
SECTION 2.01. Definitions. (a) Whenever used in this Variable Funding
Supplement the following words and phrases shall have the following meanings.
"Closing Date" shall mean January 24, 1994.
"Initial Cut-Off Date" shall mean January 1, 1994.
"Initial Variable Funding Amount" shall mean $0.
"Monthly Servicing Fee" shall have the meaning specified in Section 3.01.
"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,
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the sum of (i) the Variable Funding Amount on such Distribution Date and (ii)
the Non-Principal Collections for the previous Collection Period multiplied by
the Variable Funding Percentage for such Collection Period.
"Servicing Fee Rate" shall mean, with respect to the Variable Funding
Certificate, 2% or, for any Distribution Date in respect of which the Monthly
Servicing Fee has been waived, 0%.
"Variable Funding Amount" shall mean, on any date of determination, the
excess of the Pool Balance over the Required Pool Balance for such date.
"Variable Funding Certificate" shall mean the certificate evidencing the
Variable Funding Amount and substantially in the form of Exhibit A hereto.
"Variable Funding Default Amount" shall mean, with respect to any
Distribution Date, an amount equal to the product of (a) the Defaulted Amount
for the related Collection Period and (b) the Variable Funding Percentage for
the related Collection Period.
"Variable Funding Percentage" for any Collection Period shall mean 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;
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.
(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
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) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Variable Funding Supplement shall refer to this
Variable Funding Supplement as a whole and not to any particular provision of
this Variable Funding Supplement; references to any Article, Section or Exhibit
are references to Articles, Sections and Exhibits in or to this Variable Funding
Supplement unless otherwise specified; and the term "including" means "including
without limitation".
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ARTICLE III
Servicing Fee
SECTION 3.01. Servicing Compensation. The monthly servicing fee hereunder
(the "Monthly Servicing Fee") 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 (x) the surrender of the Variable Funding
Certificate for the final payment thereon and (y) the Trust Termination Date, in
an amount equal to one-twelfth of the product of (a) the Servicing Fee Rate and
(b) the Variable Funding Percentage of the Pool Balance as of the last day of
the second Collection Period preceding such Distribution Date (or with respect
to the first Distribution Date, as of the Initial Cut-Off Date). The remainder
of the Servicing Fee shall be attributable to the Holder of the Retained
Certificate and the Holders of Investor Certificates, and the Holder of the
Variable Funding Certificate shall in no event be liable for the share of the
Servicing Fee to be attributable to the Holder of the Retained Certificate or
the Investor Certificateholders. The Monthly Servicing Fee shall be payable to
the Servicer solely to the extent amounts are available for distribution in
accordance with Section 4.01(a) hereof. The Servicer will be permitted, in its
sole discretion, to waive the Monthly Servicing Fee for any Distribution Date by
notice to the Trustee on or before the related Determination Date, provided that
the Servicer believes that sufficient Non-Principal Collections will be
available on any future Distribution Date to 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 for such
Distribution Date shall be deemed to be zero for all purposes of this Variable
Funding Supplement and the Agreement.
ARTICLE IV
Rights of Holder of the Variable Funding Certificate and
Allocation and Application of Collections
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 this Article. (b) The Servicer shall withdraw from the Collection
Account on each Deposit Date and pay to the Holder of the Variable Funding
Certificate an amount equal to the Variable Funding Percentage for the related
Collection Period of Non-Principal Collections and Principal Collections
received or deposited into the Collection Account for such Deposit Date;
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 an amount
equal to the Monthly Servicing Fee for the preceding Collection Period and (ii)
on each Deposit Date thereafter, withdraw and pay to itself from amounts
otherwise payable to the Holder of the Variable Funding Certificate on such date
the amount, if any, by
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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 withdrawals to be made from the Collection Account pursuant to this
Section 4.01(b) do not apply to deposits into the Collection Account 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).
SECTION 4.02. Application of Funds in Series Accounts Following a
Liquidation Event. On the Distribution Date, if any, following a Liquidation
Event upon which the Trust Liquidation Proceeds are required to be distributed
by the Trustee pursuant to Section 6.02 hereof, the Servicer shall instruct the
Trustee to withdraw from the Series Accounts an amount equal to the product of
the Variable Funding Percentage for the preceding Collection Period multiplied
by the aggregate amount on deposit in the Series Accounts (including any
investment earnings, if applicable) on such date, after giving effect to the
deposits in such Series Accounts otherwise required on such date, and distribute
such amount to the Holder of the Variable Funding Certificate.
SECTION 4.03. Bankruptcy, Etc. Any beneficial or registered owner of the
Variable Funding Certificate agrees, by acceptance of such ownership, not to
file or cause to be filed, as a result of holding such Certificate, a voluntary
or involuntary petition for relief under the Federal Bankruptcy Code or any
similar applicable state law with respect to the Depositor; provided, that this
sentence shall not prevent such filing as a result of other interests or rights
which such holder may have (other than solely as a result of owning the Variable
Funding Certificate).
ARTICLE V
Distributions and Reports to
Holder of the Variable Funding Certificate
SECTION 5.01. Distributions. Except as provided in Section 12.02 of the
Agreement with respect to a final distribution, distributions to the Holder of
the Variable Funding Certificate hereunder shall be made by wire transfer in
immediately available funds.
SECTION 5.02. Reports and Statements to Holder of the Variable Funding
Certificate.
(a) At least two Business Days prior to each Determination Date, the
Servicer will provide to the Trustee statements substantially in the form of
Exhibit B and on each Distribution Date the Trustee shall forward to the Holder
of the Variable Funding Certificate such statement prepared by the Servicer
setting forth certain information relating to the Trust.
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(b) A copy of each statement provided pursuant to paragraph (a) will be
made available for inspection at the Corporate Trust Office.
(c) On or before January 31 of each calendar year, beginning with calendar
year 1995, the Trustee shall furnish or cause to be furnished to each Person who
at any time during the preceding calendar year was a Holder of the Variable
Funding Certificate, a statement prepared by the Servicer containing the
information which is required to be contained in the statement to the Holder of
the Variable Funding Certificate as set forth in paragraph (a) above, aggregated
for such calendar year or the applicable portion thereof during which such
Person was a Holder of the Variable Funding Certificate, 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 such Holder of the Variable Funding Certificate to prepare its tax
return. 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.
ARTICLE VI
Final Distributions
SECTION 6.01. Sale of Variable Funding Interest Pursuant to Section 2.03 of
the Agreement; Distributions Pursuant to 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 Variable Funding Certificate in connection with a purchase of the
Variable Funding Certificate 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 amounts deposited into the Collection Account pursuant
to Section 2.03 of the Agreement or any Termination Proceeds 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) pay to the Holder of 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 to the Holder(s) of the Retained
Certificate.
(c) Notwithstanding anything to the contrary in this Variable Funding
Supplement or the Agreement, the entire amount deposited in the Collection
Account pursuant to Section 2.03 of the Agreement and all other amounts on
deposit therein shall be distributed in
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full 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 Variable Funding Certificate.
SECTION 6.02. Distribution of Proceeds of Sale, Disposition or Liquidation
of the Receivables Pursuant to Section 9.02 of the Agreement.
(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
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
Variable Funding Percentage for the related Collection Period multiplied by the
portion of the Trust Liquidation Proceeds allocated to Principal Collections and
distribute such amount to the Holder of the Variable Funding Certificate;
provided, however, that the amount of such deposit shall not exceed the Variable
Funding Amount.
(b) Not later than 12:00 noon, New York City time, on such Distribution
Date, the Trustee 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 Variable Funding Percentage of the portion of the Trust
Liquidation Proceeds allocated to Non-Principal Collections and distribute such
amount to the Holder of the Variable Funding Certificate.
(c) Notwithstanding anything to the contrary in this Variable Funding
Supplement or the Agreement, any distribution made pursuant to this Section
shall be deemed to be a final distribution pursuant to Section 12.02 of the
Agreement with respect to the Variable Funding Certificate.
ARTICLE VII
Miscellaneous Provisions
SECTION 7.01. Ratification of Agreement. As supplemented by this Variable
Funding Supplement, the Agreement is in all respects ratified and confirmed and
the Agreement as so supplemented by this Variable Funding Supplement shall be
read, taken and construed as one and the same instrument.
SECTION 7.02. Counterparts. This Variable Funding 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 7.03. Governing Law. This Variable Funding Supplement shall be
construed in accordance with the laws of the State of New York, without
reference to its conflict of laws
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provisions, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have caused
this Variable Funding 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/ William P. Brady
--------------------
Name: William P. Brady
Title: Vice President
By: /s/ Andrew Baranowsky
---------------------
Name: Andrew Baranowsky
Title: Assistant Secretary
BOMBARDIER CAPITAL INC., as Servicer,
By: /s/ William P. Brady
--------------------
Name: William P. Brady
Title: Vice President
By: /s/ Andrew Baranowsky
-------------------------
Name: Andrew Baranowsky
Title: Assistant Treasurer
BANKERS TRUST COMPANY, as Trustee,
By: /s/ Marie C. Rasch
------------------
Name: Marie C. Rasch
Title: Vice President
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EXHIBIT A
FORM OF FACE OF VARIABLE FUNDING CERTIFICATE
THIS VARIABLE FUNDING CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS VARIABLE FUNDING CERTIFICATE
NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE
REGISTRATION PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM
SUCH REGISTRATION PROVISIONS.
THIS VARIABLE FUNDING CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED,
ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH
THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
No. VFC-___
BOMBARDIER RECEIVABLES MASTER TRUST I
VARIABLE FUNDING CERTIFICATE
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 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") 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
purchased by BCI from its affiliates, which accounts consist of credit extended
by such affiliates to their customers for the purchase of certain products. 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 Variable Funding 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.
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THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Trustee has caused this Variable Funding
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
By:________________________________
Authorized Officer
Dated: __________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Variable Funding Certificate described in the within- mentioned
Pooling and Servicing Agreement. BANKERS TRUST COMPANY, as Trustee,
By:_________________________________
Authorized Officer
FORM OF REVERSE OF VARIABLE FUNDING 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 the Pooling and
Servicing Agreement (the "P&S") dated as of January 1, 1994, as supplemented by
the Variable Funding Supplement (the "Variable Funding Supplement") and the
Series 1994-1 Supplement (the "Series Supplement"), each dated as of January 1,
1994, among Bombardier Credit Receivables Corporation, as Depositor, Bombardier
Capital Inc., as Servicer, 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 P&S and the Variable
Funding Supplement. The P&S, the Variable Funding Supplement and the Series
Supplement are hereinafter 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
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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 on 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. In addition to the Variable Funding
Certificate, the Retained Certificate and the Class A and Class B Certificates
will be issued pursuant to the Pooling and Servicing Agreement and one or more
new Series may be issued pursuant to the Pooling and Servicing Agreement. The
Receivables consist of advances made directly or indirectly by 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 affiliates of BCI
to their customers of certain products manufactured or distributed by such
affiliates. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, 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 may be requested from
the Trustee by writing to the Trustee at Four Albany Street, New York, New York
10006, Attention: Corporate Trust and Agency Group. To the extent not defined
herein, the capitalized terms used herein have the meanings ascribed to them in
the Pooling and Servicing Agreement. Any beneficial or registered owner of the
Variable Funding Certificate agrees, by acceptance of such ownership, not to
file or cause to be filed, as a result of holding such Certificate, a voluntary
or involuntary petition for relief under the Federal Bankruptcy Code or any
similar applicable state law with respect to the Depositor; provided, that this
sentence shall not prevent such filing as a result of other interests or rights
which such holder may have (other than solely as a result of owning the Variable
Funding Certificate).
This Certificate is not permitted to be transferred, assigned, exchanged or
otherwise pledged or conveyed except in accordance with the Pooling and
Servicing Agreement, including Section 6.03(c) of the Pooling and Servicing
Agreement.
This Certificate is the Variable Funding Certificate, which represents an
interest in certain assets of the Trust, including the right to receive a
portion of the Collections and other amounts at the times and in the amounts
specified in the Pooling and Servicing Agreement. The aggregate interest
represented by this Certificate at any time in the Receivables in the Trust
shall not exceed the Variable Funding Amount at such time.
The obligations created by the Pooling and Servicing Agreement and the
Trust created thereby shall terminate upon the Trust Termination Date.
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EXHIBIT B
DISTRIBUTION DATE STATEMENT
(a) The aggregate amount of Interest Collections and the aggregate amount
of Principal Collections processed during the immediately preceding Collection
Period;
(b) The Variable Funding Percentage for such Collection Period;
(c) The total amount, if any, distributed on the Variable Funding
Certificate;
(d) The amount of such distribution attributable to Principal Collections
for the related Collection Period;
(e) The amount of such distribution attributable to Non-Principal
Collections for the related Collection Period;
(f) The Variable Funding Amount for such Distribution Date;
(g) The Variable Funding Default Amount for such Distribution Date; and
(h) The amount of the Monthly Servicing Fee for the preceding Collection
Period.
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