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Exhibit 4.7
EXECUTION COPY
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BOMBARDIER CREDIT RECEIVABLES CORPORATION,
Depositor,
BOMBARDIER CAPITAL INC.,
Servicer,
and
BANKERS TRUST COMPANY,
Trustee
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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
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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........................................3
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
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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......................................7
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts.....................................................7
SECTION 7.02. Headings.........................................................7
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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.
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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.
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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).
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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
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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 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
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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:
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.
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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 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, 1997.
BOMBARDIER CREDIT RECEIVABLES
CORPORATION, Purchaser
By: /s/ Blaine Filthaut
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Name: Blaine Filthaut
Title: Vice President and Treasurer
By: /s/ Andrew Baranowsky
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Name: Andrew Baranowsky
Title: Assistant Treasurer
BOMBARDIER CAPITAL INC., Seller
By: /s/ Blaine Filthaut
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Name: Blaine Filthaut
Title: Vice President and Treasurer
By: /s/ Andrew Baranowsky
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Name: Andrew Baranowsky
Title: Assistant Treasurer
BANKERS TRUST COMPANY,
as Trustee
By: /s/ Lillian K. Peros
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Name: Lillian K. Peros
Title: Assistant Vice President
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