EXHIBIT 4.1
EXECUTION COPY
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FORD CREDIT FLOORPLAN MASTER OWNER TRUST A
Issuer
JPMORGAN CHASE BANK, N.A.
Indenture Trustee
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SERIES 2006-3
INDENTURE SUPPLEMENT
Dated as of June 1, 2006
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SERIES 2006-3 FLOATING RATE ASSET BACKED NOTES,
CLASS A AND CLASS B
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TABLE OF CONTENTS
PAGE
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ARTICLE I
CREATION OF SERIES 2006-3 NOTES
Section 1.01. Designation............................................... 2
ARTICLE II
DEFINITIONS
Section 2.01. Definitions............................................... 3
Section 2.02. Other Definitional Provisions............................. 17
ARTICLE III
SERVICING FEE
Section 3.01. Servicing Compensation.................................... 18
ARTICLE IV
RIGHTS OF SERIES 2006-3 NOTEHOLDERS AND ALLOCATION AND APPLICATION OF
COLLECTIONS
Section 4.01. Collections and Allocations............................... 19
Section 4.02. Determination of Monthly Interest......................... 21
Section 4.03. Determination of Monthly Principal Amount................. 22
Section 4.04. Application of Available Funds on Deposit in Collection
Account and Other Sources................................. 22
Section 4.05. Investor Charge-Offs...................................... 27
Section 4.06. Reallocated Principal Collections......................... 27
Section 4.07. Excess Interest Collections............................... 28
Section 4.08. Shared Principal Collections.............................. 28
Section 4.09. Available Subordinated Amount............................. 29
Section 4.10. Principal Funding Account................................. 29
Section 4.11. Reserve Fund.............................................. 31
Section 4.12. Determination of LIBOR.................................... 32
Section 4.13. Accumulation Period Reserve Account....................... 33
Section 4.14. Investment Instructions................................... 35
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ARTICLE V
DELIVERY OF SERIES 2006-3 NOTES; DISTRIBUTIONS; REPORTS TO SERIES 2006-3
NOTEHOLDERS
Section 5.01. Delivery and Payment for Series 2006-3 Notes.............. 35
Section 5.02. Distributions............................................. 35
Section 5.03. Reports and Statements to Series 2006-3 Noteholders....... 37
ARTICLE VI
SERIES 2006-3 AMORTIZATION EVENTS
Section 6.01. Series 2006-3 Amortization Events......................... 37
ARTICLE VII
REDEMPTION OF SERIES 2006-3 NOTES; SERIES FINAL MATURITY; FINAL DISTRIBUTIONS
Section 7.01. Optional Redemption of Series 2006-3 Notes................ 39
Section 7.02. Series Final Maturity..................................... 40
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Ratification of Agreement................................. 41
Section 8.02. Form of Delivery of Series 2006-3 Notes................... 41
Section 8.03. Counterparts.............................................. 41
Section 8.04. Governing Law............................................. 41
Section 8.05. Effect of Headings and Table of Contents.................. 41
EXHIBITS
Exhibit A-1 Form of Class A Note...................................... X-0-0
Xxxxxxx X-0 Form of Class B Note...................................... A-2-1
Exhibit B Form of Monthly Statement................................. B-1
Exhibit C Form of Monthly Allocation and Payment Instruction to
Indenture Trustee......................................... C-1
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SERIES 0000-0 XXXXXXXXX SUPPLEMENT, dated as of June 1, 2006, by and
between FORD CREDIT FLOORPLAN MASTER OWNER TRUST A, a Delaware statutory trust,
as Issuer, and JPMORGAN CHASE BANK, N.A., a national banking association, as
Indenture Trustee.
RECITALS
A. Section 2.12 of the Indenture provides, among other things, that the
Issuer and the Indenture Trustee may at any time and from time to time enter
into an Indenture Supplement to authorize the issuance by the Issuer of Notes in
one or more Series.
B. The parties to this Indenture Supplement, by executing and delivering
this Indenture Supplement, are providing for the creation of the Series 2006-3
Notes and specifying the Principal Terms thereof.
In consideration of the mutual covenants and agreements contained in this
Indenture Supplement, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
GRANTING CLAUSES
In addition to the Grant of the Indenture, the Issuer hereby Grants to the
Indenture Trustee, for the exclusive benefit of the Holders of the Series 2006-3
Notes, all of the Issuer's right, title and interest (whether now owned or
hereafter acquired) in, to and under the following (collectively, the "SERIES
COLLATERAL"):
(i) all Collections on the Receivables allocated to the Holders of the
Series 2006-3 Notes;
(ii) all Collections on, if applicable, Interests in Other Floorplan
Assets allocated to the Holders of the Series 2006-3 Notes;
(iii) all Eligible Investments and all monies, instruments,
securities, security entitlements, documents, certificates of deposit and
other property from time to time on deposit in or credited to the Series
Accounts (including any subaccount thereof) and in all interest, proceeds,
earnings, income, revenue, dividends and other distributions thereof
(including any accrued discount realized on liquidation of any investment
purchased at a discount); and
(iv) all present and future claims, demands, causes of action and
choses in action regarding any of the foregoing and all payments on any of
the foregoing and all proceeds of any nature whatsoever regarding any of
the foregoing, including all proceeds of the voluntary or involuntary
conversion thereof into cash or other liquid property and all cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any kind and other forms of obligations and
receivables, instruments and other property
that at any time constitute any part of or are included in the proceeds of
any of the foregoing.
The foregoing Grants are made in trust to secure (a) the Issuer's
obligations under the Series 2006-3 Notes equally and ratably without prejudice,
priority, or distinction between any Series 2006-3 Note and any other Series
2006-3 Notes, (b) the payment of all other sums payable under the 2006-3 Notes,
the Indenture and this Indenture Supplement and (c) the compliance with the
terms and conditions of the Series 2006-3 Notes, the Indenture and this
Indenture Supplement, all as provided herein or therein.
The Indenture Trustee acknowledges such Grant, accepts the trusts hereunder
in accordance with the provisions hereof and agrees to perform the duties
herein.
ARTICLE I
CREATION OF SERIES 2006-3 NOTES
Section 1.01. DESIGNATION.
(a) There is hereby created a Series of Notes to be issued by the Issuer on
the Closing Date pursuant to the Indenture and this Indenture Supplement to be
known as the "Series 2006-3 Floating Rate Asset Backed Notes" or the "Series
2006-3 Notes." The Series 2006-3 Notes will be issued in two Classes, the first
of which will be known as the "Series 2006-3 Floating Rate Asset Backed Notes,
Class A" the second of which will be known as the "Series 2006-3 Floating Rate
Asset Backed Notes, Class B." The Series 2006-3 Notes will be due and payable on
the Series 2006-3 Final Maturity Date.
(b) Series 2006-3 will be in Excess Interest Sharing Group One and in
Principal Sharing Group One. Series 2006-3 will not be a Shared Enhancement
Series or in an Interest Reallocation Group. Series 2006-3 will not be
subordinated to any other Series.
(c) The Series 2006-3 Notes are "Notes" and this Indenture Supplement is an
"Indenture Supplement" for all purposes under the Indenture. If any provision of
the Series 2006-3 Notes or this Indenture Supplement conflicts with or is
inconsistent with any provision of the Indenture, the provisions of the Series
2006-3 Notes or this Indenture Supplement, as the case may be, control.
(d) Each term defined in Section 2.01 of this Indenture Supplement relates
only to Series 2006-3 and this Indenture Supplement and to no other Series or
Indenture Supplements.
(e) Notwithstanding anything to the contrary in the Indenture, the Series
2006-3 Notes will be issued in fully registered form in minimum amounts of
$100,000 and in integral multiples of $1,000 in excess thereof (except that one
Class A Note and one Class B Note may be issued in a different amount so long as
such amount exceeds $100,000).
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ARTICLE II
DEFINITIONS
Section 2.01. DEFINITIONS.
Whenever used in this Indenture Supplement, the following words and phrases
have the following meanings, and the definitions of such terms 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.
"ACCUMULATION PERIOD FACTOR" means, with respect to any Collection Period,
a fraction:
(a) the numerator of which is equal to the sum of the initial invested
amounts of all outstanding Series in Principal Sharing Group One (including
Series 2006-3); and
(b) the denominator of which is equal to the sum of (i) the Initial
Invested Amount, plus (ii) the initial invested amounts of all outstanding
Series in Principal Sharing Group One (other than Series 2006-3) that are
not expected to be in their revolving periods from such date to the
Expected Final Payment Date;
provided, however, that this definition may be changed at any time upon
receipt by the Indenture Trustee of an Officer's Certificate from the
Transferors that such change will not have an Adverse Effect.
"ACCUMULATION PERIOD LENGTH" has the meaning specified in Section 4.04(f).
"ACCUMULATION PERIOD RESERVE ACCOUNT" has the meaning specified in Section
4.13(a).
"ACCUMULATION PERIOD RESERVE ACCOUNT AVAILABLE AMOUNT" means, with respect
to each Distribution Date beginning on the Accumulation Period Reserve Account
Funding Date and until termination of the Accumulation Period Reserve Account
pursuant to Section 4.13(e), the lesser of:
(a) the amounts on deposit in the Accumulation Period Reserve Account
on such Distribution Date (excluding any amounts relating to investment
earnings and before giving effect to any (i) deposits made or to be made
therein pursuant to Sections 4.04(a)(viii) and (b)(i) on such Distribution
Date or (ii) any withdrawal made or to be made therefrom pursuant to
Section 4.13(c) on such Distribution Date); and
(b) the Accumulation Period Reserve Account Required Amount for such
Distribution Date.
"ACCUMULATION PERIOD RESERVE ACCOUNT CASH DEPOSIT SUBACCOUNT" has the
meaning specified in Section 4.13(a).
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"ACCUMULATION PERIOD RESERVE ACCOUNT DEPOSIT AMOUNT" means, with respect to
each Distribution Date beginning on the Accumulation Period Reserve Account
Funding Date and until termination of the Accumulation Period Reserve Account
pursuant to Section 4.13(e), the excess of (a) the Accumulation Period Reserve
Account Required Amount for such Distribution Date, over (b) the Accumulation
Period Reserve Account Available Amount for such Distribution Date.
"ACCUMULATION PERIOD RESERVE ACCOUNT FUNDING DATE" means the Distribution
Date occurring in the second Collection Period preceding the scheduled
commencement of the Controlled Accumulation Period (or such earlier or later
date as may be directed by the Servicer; provided that, if the Accumulation
Period Reserve Account Funding Date occurs on a later date, the Accumulation
Period Reserve Account is expected to be fully funded by the commencement of the
Controlled Accumulation Period).
"ACCUMULATION PERIOD RESERVE ACCOUNT REQUIRED AMOUNT" means, with respect
to each Distribution Date beginning on the Accumulation Period Reserve Account
Funding Date and until the Accumulation Period Reserve Account is terminated
pursuant to Section 4.13(e), an amount equal to 0.25% of the Initial Note
Principal Balance.
"ACCUMULATION PERIOD RESERVE ACCOUNT SECURITIES SUBACCOUNT" has the meaning
specified in Section 4.13(a).
"ACCUMULATION PERIOD RESERVE DRAW AMOUNT" means, with respect to any
Distribution Date relating to the Controlled Accumulation Period or the first
Distribution Date relating to the Early Amortization Period, the excess, if any,
of (a) the Covered Amount determined as of such Distribution Date, over (b) the
portion of the Available Investor Interest Collections for such Distribution
Date constituting net investment earnings from the Reserve Fund, the Principal
Funding Account and the Accumulation Period Reserve Account.
"ADDITIONAL INTEREST" means, with respect to any Distribution Date, the sum
of (a) the Class A Additional Interest for such Distribution Date, plus (b) the
Class B Additional Interest for such Distribution Date.
"ADJUSTED INVESTED AMOUNT" means, with respect to the Series 2006-3 Notes
as of any date of determination, the excess of (a) the Invested Amount as of
such date, over (b) the amounts on deposit in the Principal Funding Account
(excluding amounts relating to investment earnings) on such date.
"ADJUSTED POOL BALANCE" has the meaning specified in the Indenture.
"ADJUSTMENT PAYMENTS" has the meaning specified in the Transfer and
Servicing Agreements.
"AVAILABLE INVESTOR INTEREST COLLECTIONS" means, with respect to any
Distribution Date, an amount equal to the sum of (a) the Investor Interest
Collections with respect to such
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Distribution Date, plus (b) all interest and investment earnings on Eligible
Investments credited to the Reserve Fund, the Principal Funding Account and the
Accumulation Period Reserve Account (net of losses and investment expenses)
during the period commencing on and including the Distribution Date immediately
preceding such Distribution Date and ending on but excluding such Distribution
Date, plus (c) all withdrawals from the Accumulation Period Reserve Account
pursuant to Section 4.13(c); plus (d) on the termination of the Accumulation
Period Reserve Account pursuant to Section 4.13(e), all remaining amounts on
deposit in the Accumulation Period Reserve Account (excluding amounts relating
to investment earnings and after giving effect to Section 4.13(c)).
"AVAILABLE INVESTOR PRINCIPAL COLLECTIONS" means, with respect to any
Distribution Date, an amount equal to the excess of (a) the sum of (i) the
Investor Principal Collections for such Distribution Date, plus (ii) any Shared
Principal Collections with respect to other Series in Principal Sharing Group
One (including any amounts on deposit in the Excess Funding Account that are
allocated to Series 2006-3 pursuant to the Indenture for application as Shared
Principal Collections), plus (iii) upon the termination of the Reserve Fund
pursuant to Section 4.11(e), all remaining amounts on deposit in the Reserve
Fund (excluding amounts relating to investment earnings and after giving effect
to Section 4.04(b)(iii)), over (b) any Reallocated Principal Collections for
such Distribution Date.
"AVAILABLE SUBORDINATED AMOUNT" means (a) for the first Determination Date,
an amount equal to the Required Subordinated Amount for such Determination Date
and (b) for any subsequent Determination Date, an amount equal to the lesser of
(i) the Required Subordinated Amount for such Determination Date and (ii) an
amount equal to:
(A) the Available Subordinated Amount for the prior Determination
Date; minus
(B) the amount of any Available Transferor Collections used to cover
certain shortfalls on the related Distribution Date as provided in Section
4.04(b)(ii); minus
(C) the amount of the Available Subordinated Amount reallocated to the
Invested Amount on the related Distribution Date as provided in Sections
4.05 and 4.06 in order to avoid a reduction of the Invested Amount; plus
(D) the amount of any Available Investor Interest Collections
available to be distributed as provided in Section 4.04(a)(xii) to the
Owner Trustee for distribution to the holders of the Transferor Interest in
accordance with the Trust Agreement; minus
(E) the Incremental Subordinated Amount for the prior Determination
Date; plus
(F) the Incremental Subordinated Amount for such Determination Date;
minus
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(G) the Subordinated Percentage of the increase in the Series 2006-3
Excess Funding Amount since the prior Distribution Date to the succeeding
Distribution Date; plus
(H) the Subordinated Percentage of the decrease in the Series 2006-3
Excess Funding Amount since the prior Distribution Date to the succeeding
Distribution Date; plus
(I) any increases thereof pursuant to Section 4.09(c).
"AVAILABLE TRANSFEROR COLLECTIONS" has the meaning specified in Section
4.01(b).
"AVAILABLE TRANSFEROR INTEREST COLLECTIONS" has the meaning specified in
Section 4.01(b)(iii).
"AVAILABLE TRANSFEROR PRINCIPAL COLLECTIONS" has the meaning specified in
Section 4.01(b)(iv).
"BUSINESS DAY" has the meaning specified in the Indenture.
"CLASS A ADDITIONAL INTEREST" has the meaning specified in Section 4.02(a).
"CLASS A INTEREST SHORTFALL" has the meaning specified in Section 4.02(a).
"CLASS A MONTHLY INTEREST" has the meaning specified in Section 4.02(a).
"CLASS A NOTE INITIAL PRINCIPAL BALANCE" means $1,416,200,000.00.
"CLASS A NOTE INTEREST RATE" means a per annum rate of 0.18% in excess of
LIBOR, as determined (a) on June 26, 2006, for the period from and including the
Closing Date through and excluding July 17, 2006 and (b) on the related LIBOR
Determination Date with respect to each Interest Period thereafter.
"CLASS A NOTE PRINCIPAL BALANCE" means, as of any date of determination,
the Class A Note Initial Principal Balance, minus the aggregate amount of any
principal payments made to the Class A Noteholders before such date.
"CLASS A NOTEHOLDER" means the Person in whose name a Class A Note is
registered in the Note Register.
"CLASS A NOTES" means any one of the Series 2006-3 Notes executed by the
Issuer and authenticated by or on behalf of the Indenture Trustee, substantially
in the form of Exhibit A-1.
"CLASS B ADDITIONAL INTEREST" has the meaning specified in Section 4.02(b).
"CLASS B INTEREST SHORTFALL" has the meaning specified in Section 4.02(b).
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"CLASS B INVESTED AMOUNT" means, as of any date of determination, an amount
equal to (a) the Class B Note Initial Principal Balance, minus (b) the aggregate
amount of any principal payments made to the Class B Noteholders before such
date, minus (c) the cumulative amount of unreimbursed Uncovered Reallocated
Principal Collections immediately before such date, but limited to an amount
that would reduce the Class B Invested Amount to zero, minus (d) the cumulative
amount of unreimbursed Investor Charge-Offs immediately before such date, but
limited to an amount that would reduce the Class B Invested Amount to zero.
"CLASS B MONTHLY INTEREST" has the meaning specified in Section 4.02(b).
"CLASS B NOTE INITIAL PRINCIPAL BALANCE" means $83,800,000.00.
"CLASS B NOTE INTEREST RATE" means a per annum rate of 0.45% in excess of
LIBOR, as determined (a) on June 26, 2006, for the period from and including the
Closing Date through and excluding July 17, 2006 and (b) on the related LIBOR
Determination Date with respect to each Interest Period thereafter.
"CLASS B NOTE PRINCIPAL BALANCE" means, as of any date of determination,
the Class B Note Initial Principal Balance, minus the aggregate amount of any
principal payments made to the Class B Noteholders before such date.
"CLASS B NOTEHOLDER" means the Person in whose name a Class B Note is
registered in the Note Register.
"CLASS B NOTES" means any one of the Series 2006-3 Notes executed by the
Issuer and authenticated by or on behalf of the Indenture Trustee, substantially
in the form of Exhibit A-2.
"CLOSING DATE" means June 28, 2006.
"CONTROLLED ACCUMULATION AMOUNT" means, for any Distribution Date with
respect to the Controlled Accumulation Period, $250,000,000.00; provided,
however, that if the Accumulation Period Length is determined to be less than
six months pursuant to Section 4.04(f), the Controlled Accumulation Amount for
each Distribution Date with respect to the Controlled Accumulation Period will
be equal to (a) the product of (i) the Initial Note Principal Balance, times
(ii) the Accumulation Period Factor for such Collection Period, divided by (b)
the Required Accumulation Factor Number.
"CONTROLLED ACCUMULATION PERIOD" means, unless an Amortization Event has
occurred prior thereto, the period beginning on the first day of the December
2008 Collection Period or such later date as is determined in accordance with
Section 4.04(f) and ending on the earlier to occur of (a) the close of business
on the day immediately preceding the commencement of the Early Amortization
Period and (b) the end of the Collection Period immediately preceding the
Distribution Date on which the Note Principal Balance will be paid in full.
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"CONTROLLED DEPOSIT AMOUNT" means, for any Distribution Date with respect
to the Controlled Accumulation Period, an amount equal to the sum of (a) the
Controlled Accumulation Amount for such Distribution Date and (b) any Deficit
Controlled Accumulation Amount for the immediately preceding Distribution Date.
"COVERED AMOUNT" means, as of any Distribution Date on which the Servicer
calculates the Accumulation Period Reserve Draw Amount pursuant to Section
4.13(c), an amount equal to one-twelfth of the product of (a) the amounts on
deposit in the Principal Funding Account as of the immediately preceding
Distribution Date (excluding amounts relating to investment earnings and after
giving effect to any deposit therein on such preceding Distribution Date), times
(b) one-month LIBOR plus 0.195% for the related Interest Period.
"DEALER OVERCONCENTRATION" means, for any Determination Date, the excess,
if any, of (a) the aggregate amount of the Issuer's Principal Receivables
arising in connection with all the Accounts of a Dealer or a group of affiliated
Dealers as of the last day of the related Collection Period, over (b) 2% (or 5%
in the case of Dealers affiliated with AutoNation, Inc. (or its successors in
interest)) of the Pool Balance as of the last day of such Collection Period (or,
in either case, a higher percentage so long as the Rating Agency Condition has
been satisfied).
"DEFAULTED AMOUNT" means, for any Determination Date, an amount (never less
than zero) equal to (a) the amount of all Principal Receivables that became
Defaulted Receivables during the related Collection Period, plus (b) if
applicable, the principal portion of any Interests in Other Floorplan Assets
that defaulted during the related Collection Period, minus (c) the amount of any
such Defaulted Receivables or such Interests in Other Floorplan Assets that, in
each case, are subject to reassignment to the Transferors in accordance with the
terms of the Transfer and Servicing Agreements (except that if an Insolvency
Event occurs with respect to a Transferor, the amount of such Defaulted
Receivables that are subject to reassignment to such Transferor will be zero),
minus (d) the amount of any such Defaulted Receivables or such Interests in
Other Floorplan Assets that, in each case, are subject to assignment to the
Servicer in accordance with the terms of the Transfer and Servicing Agreements
(except that if an Insolvency Event occurs with respect to the Servicer, the
amount of such Defaulted Receivables that are subject to assignment to the
Servicer will be zero).
"DEFICIT CONTROLLED ACCUMULATION AMOUNT" means (a) for the first
Distribution Date with respect to the Controlled Accumulation Period, the
excess, if any, of the Controlled Accumulation Amount for such first
Distribution Date, over the amount deposited into the Principal Funding Account
on such first Distribution Date and (b) for each subsequent Distribution Date
with respect to the Controlled Accumulation Period, the excess, if any, of the
Controlled Deposit Amount for such subsequent Distribution Date, over the amount
deposited into the Principal Funding Account on such subsequent Distribution
Date.
"DISTRIBUTION DATE" means July 17, 2006 and the 15th day of each calendar
month thereafter, or if such 15th day is not a Business Day, the next succeeding
Business Day.
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"EARLY AMORTIZATION PERIOD" means the period beginning on the first day of
the Collection Period in which an Amortization Event with respect to Series
2006-3 occurs (or, if the Servicer is required to make daily deposits of
Collections into the Collection Account pursuant to Section 8.04(b) of the
Indenture, on the day on which such an Amortization Event occurs) and ending on
the earlier to occur of (a) the end of the Collection Period immediately
preceding the Distribution Date on which the Note Principal Balance will be paid
in full and (b) the Series 2006-3 Final Maturity Date.
"EXCESS INTEREST COLLECTIONS" has, with respect to Series 2006-3, the
meaning specified in Section 4.07.
"EXCESS TRANSFEROR PERCENTAGE" means:
(a) for allocating Interest Collections with respect to any Collection
Period, the percentage (not less than 0%) equal to 100%, minus the sum of
(i) the sum of the floating investor percentages for all outstanding Series
(including Series 2006-3) with respect to such Collection Period and (ii)
the percentage equivalent of a fraction, the numerator of which is the
Trust Available Subordinated Amount as of the Determination Date occurring
in the immediately preceding Collection Period, and the denominator of
which is the Adjusted Pool Balance as of the close of business on the last
day of the immediately preceding Collection Period; and
(b) for allocating Principal Collections with respect to any
Collection Period, the percentage (not less than 0%) equal to 100%, minus
the sum of (i) the floating investor percentages for all outstanding Series
(including Series 2006-3) that are in their revolving periods with respect
to such Collection Period and the fixed investor percentages for all
outstanding Series (including Series 2006-3) that are not in their
revolving periods with respect to such Collection Period and (ii) the
percentage equivalent of a fraction, the numerator of which is the Trust
Available Subordinated Amount as of the Determination Date occurring in the
immediately preceding Collection Period, and the denominator of which is
the Adjusted Pool Balance as of the close of business on the last day of
the immediately preceding Collection Period.
"EXPECTED FINAL PAYMENT DATE" means the June 2009 Distribution Date.
"FIXED INVESTOR PERCENTAGE" means, with respect to any Collection Period
(or portion thereof occurring after the end of the Revolving Period), the
percentage equivalent (not to exceed 100%) of a fraction (a) the numerator of
which is the Invested Amount as of the close of business on the last day of the
Revolving Period and (b) the denominator of which is the greater of (i) the
Adjusted Pool Balance as of the close of business on the last day of the
immediately preceding Collection Period and (ii) the sum of the numerators used
to calculate the applicable investor percentages for allocating Principal
Collections to all outstanding Series (including Series 2006-3) with respect to
such Collection Period.
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"FLOATING INVESTOR PERCENTAGE" means, with respect to any Collection Period
or, the percentage equivalent (not to exceed 100%) of a fraction (a) the
numerator of which is the Adjusted Invested Amount as of the close of business
on the last day of the immediately preceding Collection Period (or with respect
to the first Collection Period, the Initial Invested Amount) and (b) the
denominator of which is the Adjusted Pool Balance as of the close of business on
the last day of the immediately preceding Collection Period (or with respect to
the first Collection Period, the Adjusted Pool Balance as of the Series Cut-Off
Date).
"INCREMENTAL SUBORDINATED AMOUNT" means, for any Determination Date, the
product of:
(a) a fraction, (i) the numerator of which is the greater of (A) zero
and (B) an amount equal to (1) the Adjusted Invested Amount as of the
related Distribution Date (after giving effect to any changes to be made in
such amount on such Distribution Date), plus (2) the product of the Initial
Invested Amount multiplied by the excess of the Required Pool Percentage
over 100%, plus (3) the Required Subordinated Amount on such Determination
Date (without giving effect to the Incremental Subordinated Amount), minus
(4) the Series 2006-3 Excess Funding Amount as of such Determination Date
(after giving effect to any changes in such amount on such Determination
Date) and (ii) the denominator of which is the Pool Balance as of such
Determination Date (or with respect to the first Collection Period, the
Pool Balance as of the Series Cut-Off Date); times
(b) the Non-Conforming Receivable Amount as of such Determination
Date.
"INDENTURE" means the Indenture, dated as of August 1, 2001, between the
Issuer and the Indenture Trustee, as the same may be amended, supplemented or
otherwise modified from time to time.
"INDENTURE SUPPLEMENT" means this Series 0000-0 Xxxxxxxxx Supplement, as
the same may be amended, supplemented or otherwise modified from time to time.
"INITIAL INVESTED AMOUNT" means, with respect to the Series 2006-3 Notes,
$1,500,000,000.00.
"INITIAL NOTE PRINCIPAL BALANCE" means the sum of (a) the Class A Note
Initial Principal Balance, plus (b) the Class B Note Initial Principal Balance.
"INTEREST COLLECTIONS SHORTFALL" has, with respect to Series 2006-3, the
meaning specified in Section 4.07.
"INTEREST PERIOD" means, 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.
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"INVESTED AMOUNT" means, with respect to the Series 2006-3 Notes as of any
date of determination, an amount equal to (a) the Initial Note Principal
Balance, minus (b) the aggregate amount of any principal payments made to the
Class A Noteholders and the Class B Noteholders before such date, minus (c) the
cumulative amount of unreimbursed Uncovered Reallocated Principal Collections
immediately before such date, minus (d) the cumulative amount of unreimbursed
Investor Charge-Offs immediately before such date.
"INVESTOR CHARGE-OFFS" has the meaning specified in Section 4.05.
"INVESTOR DEFAULT AMOUNT" means, with respect to any Distribution Date, an
amount equal to the product of (a) the Floating Investor Percentage for the
related Collection Period, times (b) the Defaulted Amount for such Collection
Period.
"INVESTOR INTEREST COLLECTIONS" means, with respect to any Distribution
Date, an amount equal to the product of (a) the Floating Investor Percentage for
the related Collection Period, times (b) the Interest Collections for such
Collection Period.
"INVESTOR PERCENTAGE" means, with respect to any Collection Period (a) with
respect to Interest Collections and Defaulted Amounts at any time and Principal
Collections during the Revolving Period, the Floating Investor Percentage and
(b) with respect to Principal Collections during the Controlled Accumulation
Period or the Early Amortization Period, the Fixed Investor Percentage.
"INVESTOR PRINCIPAL COLLECTIONS" means, with respect to any Distribution
Date, an amount equal to the sum of (a) the product of (i) the Investor
Percentage applicable for the related Collection Period and (ii) Principal
Collections for such Collection Period, (b) any Available Investor Interest
Collections, Reserve Fund Available Amounts, Excess Interest Collections from
other Series in Excess Interest Sharing Group One and Available Transferor
Collections that, as provided in Sections 4.04(a) and (b), are to be treated as
Investor Principal Collections with respect to such Distribution Date.
"LIBOR" means, with respect to any Interest Period, the London interbank
offered rate for one-month United States dollar deposits determined by the
Indenture Trustee for such Interest Period pursuant to Section 4.12.
"LIBOR DETERMINATION DATE" means (a) June 26, 2006 for the period from and
including the Closing Date through but excluding July 17, 2006 and (b) the
second London Business Day before the commencement of each subsequent Interest
Period.
"LONDON BUSINESS DAY" means any Business Day on which dealings in deposits
in United States dollars are transacted in the London interbank market.
"MANUFACTURER OVERCONCENTRATION" means, for any Determination Date, either:
11
(a) the excess, if any, of (i) the aggregate amount of the Issuer's
Principal Receivables financed by Ford Credit through PRIMUS that relate to a
particular Manufacturer (other than Ford or one of its associated Manufacturers)
with a long-term credit rating of at least "A-" by Standard & Poor's and Fitch
(if rated by Fitch), and "A3" by Moody's (if rated by Moody's) as of the last
day of the related Collection Period, over (ii) 10% of the Pool Balance as of
the last day of such Collection Period (or a higher percentage so long as the
Rating Agency Condition has been satisfied); or
(b) the excess, if any, of (i) the aggregate amount of the Issuer's
Principal Receivables financed by Ford Credit through PRIMUS that relate to a
particular Manufacturer (other than Ford or one of its associated Manufacturers)
with a long-term credit rating of "BBB+" or lower by Standard & Poor's or
unrated by Standard & Poor's, or "BBB+" or lower by Fitch (if rated by Fitch),
or "Baa1" or lower by Moody's (if rated by Moody's) as of the last day of the
related Collection Period, over (ii) 6% of the Pool Balance as of the last day
of such Collection Period (or a higher percentage so long as the Rating Agency
Condition has been satisfied).
"MONTHLY INTEREST" means, with respect to any Distribution Date, the sum of
(a) the Class A Monthly Interest for such Distribution Date, plus (b) the Class
B Monthly Interest for such Distribution Date.
"MONTHLY PRINCIPAL AMOUNT" means the monthly principal distributable in
respect of the Series 2006-3 Notes as determined pursuant to Section 4.03.
"MONTHLY PRINCIPAL PAYMENT RATE" means, with respect to any Collection
Period, the percentage equivalent of a fraction (a) the numerator of which is
the Principal Collections with respect to such Collection Period and (b) the
denominator of which is the Pool Balance as of the first day of such Collection
Period.
"MONTHLY SERVICING FEE" means, with respect to any Distribution Date, an
amount equal to one-twelfth of the product of (a) the Servicing Fee Rate, (b)
the Floating Investor Percentage for the related Collection Period and (c) the
total amount of Principal Receivables and, if applicable, the principal portion
of any Interests in Other Floorplan Assets as of the close of business on the
last day of the immediately preceding Collection Period, or with respect to the
first Collection Period, the total amount of Principal Receivables as of the
Series Cut-Off Date, in either case, excluding the principal portion of any
Interests in Other Floorplan Assets owned by the Issuer that are not serviced by
the Servicer; provided that with respect to the first Distribution Date, the
Monthly Servicing Fee will equal $$125,000.00.
"NON-CONFORMING RECEIVABLE AMOUNT" means, for any Determination Date, the
excess, if any, of:
(a) the sum of (i) Principal Receivables constituting Ineligible
Receivables for such Determination Date, plus (ii) the aggregate amount of
Dealer Overconcentrations,
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Manufacturer Overconcentrations, PRIMUS Overconcentrations and Used Vehicle
Overconcentrations for such Determination Date; over
(b) the sum of (i) Principal Receivables constituting Ineligible
Receivables that became Defaulted Receivables during the period beginning
on the immediately preceding Determination Date and ending on the day
immediately preceding the current Determination Date, plus (ii) the
aggregate amount of Principal Receivables contributing to Dealer
Overconcentrations, Manufacturer Overconcentrations, PRIMUS
Overconcentrations and Used Vehicle Overconcentrations that, in each case,
became Defaulted Receivables during the period beginning on the immediately
preceding Determination Date and ending on the day immediately preceding
the current Determination Date.
"NOTE PRINCIPAL BALANCE" means, as of any date of determination, the sum of
(a) the Class A Note Principal Balance on such date, plus (b) the Class B Note
Principal Balance on such date.
"PERCENTAGE INTEREST" means the portion of the Transferor Interest,
expressed as a percentage, as stated on the face of each Certificate (as defined
in the Trust Agreement), if certificated, and otherwise as indicated in the
books and records of the Owner Trustee in accordance with the Trust Agreement.
"POOL BALANCE" has the meaning specified in the Indenture.
"PRIMUS" means PRIMUS Financial Services, a division of Ford Credit, and
its successors and predecessors in interest (including Primus Automotive
Financial Services, Inc., a New York corporation that was formerly a
wholly-owned subsidiary of Ford Credit).
"PRIMUS OVERCONCENTRATION" means, for any Determination Date, the excess,
if any, of (a) the aggregate amount of the Issuer's Principal Receivables
financed by Ford Credit through PRIMUS that relate to all Manufacturers (other
than Ford or one of its associated Manufacturers) as of the last day of the
related Collection Period, over (b) 30% of the Pool Balance as of the last day
of such Collection Period (or a higher percentage so long as the Rating Agency
Condition has been satisfied).
"PRINCIPAL FUNDING ACCOUNT" has the meaning specified in Section 4.10(a).
"PRINCIPAL FUNDING ACCOUNT CASH DEPOSIT SUBACCOUNT" has the meaning
specified in Section 4.10(a).
"PRINCIPAL FUNDING ACCOUNT SECURITIES SUBACCOUNT" has the meaning specified
in Section 4.10(a).
"PRINCIPAL SHARING GROUP ONE" means Series 2006-3 and each other Series
specified in the related Indenture Supplements to be included in Principal
Sharing Group One.
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"PRINCIPAL SHORTFALL" has, with respect to Series 2006-3, the meaning
specified in Section 4.08(a).
"PRINCIPAL TERMS" has the meaning specified in the Indenture.
"RATING AGENCY" means each of Standard & Poor's, Fitch and Xxxxx'x.
"RATING AGENCY CONDITION" means the notification in writing by each of
Moody's, Standard & Poor's and Fitch to the Transferors, the Servicer and the
Indenture Trustee that a proposed action will not result in such Rating Agency
reducing or withdrawing its then existing rating of the investor note of any
outstanding Series or Class of a Series with respect to which it is a Rating
Agency.
"REALLOCATED PRINCIPAL COLLECTIONS" means, with respect to any Distribution
Date, the amount of Investor Principal Collections applied in accordance with
Section 4.06 in an amount not to exceed:
(a) with respect to the Class A notes, the sum of the Available
Subordinated Amount plus the Class B Invested Amount for that Distribution
Date (in each case after giving effect to any change in that amount on that
date); and
(b) with respect to the Class B notes, the Available Subordinated
Amount for that Distribution Date (after giving effect to any change in
that amount on that date).
"REASSIGNMENT AMOUNT" means, 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 (a) the Note Principal Balance on such
Distribution Date, plus (b) the Monthly Interest for such Distribution Date,
together with any Monthly Interest previously due but not paid to the Series
2006-3 Noteholders on prior Distribution Dates, plus (c) any Additional Interest
for such Distribution Date.
"REFERENCE BANKS" means four major banks in the London interbank market
selected by the Servicer.
"REQUIRED ACCUMULATION FACTOR NUMBER" means a fraction, rounded upwards to
the nearest whole number, the numerator of which is one and the denominator of
which is equal to the lowest Monthly Principal Payment Rate on the Accounts,
expressed as a decimal, for the twelve months preceding the date of such
calculation; provided, however, that this definition may be changed at any time
upon receipt by the Indenture Trustee of an Officer's Certificate from the
Servicer that such change will not have an Adverse Effect.
"REQUIRED POOL PERCENTAGE" means, 104%, except that the Transferors may
reduce this percentage so long as the Rating Agency Condition is satisfied with
respect to the Series 2006-3 Notes.
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"REQUIRED SUBORDINATED AMOUNT" means, as of any date of determination, the
sum of:
(a) the greater of (i) zero and (ii) the product of (A) the
Subordinated Percentage, times (B) the excess of the Adjusted Invested
Amount over the Series 2006-3 Excess Funding Amount on such date (after
giving effect to any changes in such amount on such date); plus
(b) the Incremental Subordinated Amount for such date.
"REQUIRED TRANSFEROR AMOUNT" has the meaning specified in the Indenture.
"RESERVE FUND" has the meaning specified in Section 4.11(a).
"RESERVE FUND AVAILABLE AMOUNT" means, with respect to any Distribution
Date, the lesser of (a) the amount on deposit in the Reserve Fund on such date
(excluding any net investment earnings on amounts on deposit therein and before
giving effect to any (i) deposit made or to be made therein pursuant to Section
4.04(a) on such date or (ii) any withdrawal made or to be made therefrom
pursuant to Section 4.04(b)(iii) on such date) and (b) the Reserve Fund Required
Amount for such Distribution Date.
"RESERVE FUND CASH DEPOSIT SUBACCOUNT" has the meaning specified in Section
4.11(a).
"RESERVE FUND DEPOSIT AMOUNT" means, with respect to any Distribution Date,
the excess, if any, of (a) the Reserve Fund Required Amount for such
Distribution Date, over (b) the Reserve Fund Available Amount for such
Distribution Date.
"RESERVE FUND INITIAL AMOUNT" means $15,000,000.00.
"RESERVE FUND REQUIRED AMOUNT" means, with respect to any Distribution
Date, an amount equal to the product of 1.00%, times the Adjusted Invested
Amount on such Distribution Date (after giving effect to any changes therein on
such Distribution Date); provided, however, that the Reserve Fund Required
Amount for the Closing Date is the Reserve Fund Initial Amount; and, provided,
further, that for any Distribution Date with respect to the Early Amortization
Period, the Reserve Fund Required Amount for such Distribution Date will be the
product of 5.00%, times the Initial Note Principal Balance.
"RESERVE FUND SECURITIES SUBACCOUNT" has the meaning specified in Section
4.11(a).
"REVOLVING PERIOD" means the period beginning on the Closing Date and
ending on the earlier of the close of business on the day immediately preceding
the date on which the Controlled Accumulation Period or the Early Amortization
Period commences.
"SECURITIES INTERMEDIARY" has the meaning specified in the Indenture.
15
"SERIES 2006-3" means the Series of Notes, the Principal Terms of which are
specified in this Indenture Supplement.
"SERIES 2006-3 AMORTIZATION EVENT" has the meaning specified in Section
6.01.
"SERIES 2006-3 EXCESS FUNDING AMOUNT" means, as of any date of
determination, the product of (a) the amount on deposit in the Excess Funding
Account (excluding amounts relating to investment earnings) on such date, times
(b) a fraction (i) the numerator of which is the Adjusted Invested Amount as of
such date and (ii) the denominator of which is the sum of the adjusted invested
amounts of each outstanding Series (including Series 2006-3) being allocated a
portion of the funds on deposit in the Excess Funding Account.
"SERIES 2006-3 FINAL MATURITY DATE" means the June 2011 Distribution Date.
"SERIES 2006-3 NOTE" means a Class A Note or a Class B Note.
"SERIES 2006-3 NOTEHOLDER" means a Class A Noteholder or a Class B
Noteholder.
"SERIES 2006-3 NOTEHOLDERS' COLLATERAL" means the Noteholders' Collateral
for Series 2006-3.
"SERIES ACCOUNT CASH DEPOSIT SUBACCOUNTS" means, with respect to Series
2006-3, the Principal Funding Account Cash Deposit Subaccount, the Reserve Fund
Cash Deposit Subaccount and the Accumulation Period Reserve Account Cash Deposit
Subaccount.
"SERIES ACCOUNTS" means, with respect to Series 2006-3, the Principal
Funding Account and the Accumulation Period Reserve Account.
"SERIES ACCOUNT SECURITIES SUBACCOUNTS" means, with respect to Series
2006-3, the Principal Funding Account Securities Subaccount, the Reserve Fund
Securities Subaccount and the Accumulation Period Reserve Account Securities
Subaccount.
"SERIES COLLATERAL" has the meaning specified in the Granting Clauses of
this Indenture Supplement.
"SERIES CUT-OFF DATE" means the close of business on May 31, 2006.
"SERVICING FEE RATE" means 1% per annum or such lesser percentage as may be
specified by the Servicer in an Officer's Certificate delivered to the Indenture
Trustee stating that, in the reasonable belief of the Servicer, such change in
percentage will not result in an Adverse Effect.
"SHARED PRINCIPAL COLLECTIONS" has, with respect to Series 2006-3, the
meaning specified in Section 4.08.
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"SUBORDINATED PERCENTAGE" means the percentage equivalent of a fraction (a)
the numerator of which is the Subordination Factor and (b) the denominator of
which is the excess of 100%, over the Subordination Factor.
"SUBORDINATION FACTOR" means, for the Series 2006-3 Notes, 10.50%.
"TELERATE PAGE 3750" means the display page currently so designated on the
Bridge Telerate Capital Markets Report (or such other page as may replace such
page in that service for the purpose of displaying comparable rates or prices).
"TRANSFEROR AMOUNT" has the meaning specified in the Indenture.
"TRANSFEROR INTEREST COLLECTIONS" means, with respect to any Collection
Period, the product of (a) the applicable Transferor Percentage for such
Collection Period, times (b) the Interest Collections for such Collection
Period.
"TRANSFEROR PERCENTAGE" has the meaning specified in the Indenture.
"TRANSFEROR PRINCIPAL COLLECTIONS" means, with respect to any Collection
Period, the product of (a) the applicable Transferor Percentage for such
Collection Period, times (b) the Principal Collections for such Collection
Period.
"TRUST AVAILABLE SUBORDINATED AMOUNT" means, as of any date of
determination, the sum of the available subordinated amounts as of such date for
all outstanding Series (including Series 2006-3).
"UNCOVERED REALLOCATED PRINCIPAL COLLECTIONS" has the meaning specified in
Section 4.06.
"USED VEHICLE OVERCONCENTRATION" means, for any Determination Date, the
excess, if any, of (a) the aggregate amount of the Issuer's Principal
Receivables relating to Used Vehicles as of the last day of the related
Collection Period, over (b) 20% of the Pool Balance as of the last day of such
Collection Period (or a higher percentage so long as the Rating Agency Condition
has been satisfied).
Section 2.02. OTHER DEFINITIONAL PROVISIONS.
(a) All terms used herein and not otherwise defined herein have
meanings ascribed to them in the Indenture, the Transfer and Servicing
Agreement or the Trust Agreement, as applicable.
(b) All terms defined in this Indenture Supplement have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
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(c) As used in this Indenture Supplement and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting
terms not defined in this Indenture Supplement or in any such certificate
or other document, and accounting terms partly defined in this Indenture
Supplement or in any such certificate or other document to the extent not
defined, have the respective meanings given to them under generally
accepted accounting principles or regulatory accounting principles, as
applicable and as in effect on the date of this Indenture Supplement. To
the extent that the definitions of accounting terms in this Indenture
Supplement or in any such certificate or other document are inconsistent
with the meanings of such terms under generally accepted accounting
principles or regulatory accounting principles in the United States, the
definitions contained in this Indenture Supplement or in any such
certificate or other document control.
(d) Unless otherwise specified, references to any dollar amount as of
any particular date means such amount at the close of business on such day.
(e) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Indenture Supplement refer to this Indenture
Supplement as a whole and not to any particular provision of this Indenture
Supplement. References to any subsection, Section, Schedule or Exhibit are
references to subsections, Sections, Schedules and Exhibits in or to this
Indenture Supplement, unless otherwise specified. The term "including"
means "including without limitation."
ARTICLE III
SERVICING FEE
Section 3.01. SERVICING COMPENSATION.
The share of the Servicing Fee allocable to the Series 2006-3 Noteholders
with respect to any Distribution Date is equal to the Monthly Servicing Fee. The
portion of the Servicing Fee that is not allocable to the Series 2006-3
Noteholders will be paid by the holders of the Transferor Interest or the
Noteholders of other Series (as provided in the related Indenture Supplements)
and in no event will the Issuer, the Indenture Trustee or the Series 2006-3
Noteholders be liable for the share of the Servicing Fee to be paid by the
holders of the Transferor Interest or the Noteholders of any other Series.
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ARTICLE IV
RIGHTS OF SERIES 2006-3 NOTEHOLDERS
AND ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.01. COLLECTIONS AND ALLOCATIONS.
(a) Allocations. As provided in Section 8.03(a) of the Indenture,
Interest Collections and Principal Collections, as well as Defaulted
Receivables, will be allocated between Series 2006-3 and the Transferor
Interest and then applied in respect thereof pursuant to this Article IV.
(b) Allocations to Transferor Interest. The Servicer will on each
Deposit Date make the following allocations to the Transferor Interest:
(i) an amount equal to the product of the Excess Transferor
Percentage for the related Collection Period and the Interest
Collections for such Collection Period will be deducted from the
Transferor Interest Collections for such Collection Period and
distributed to the Owner Trustee for distribution to the holders of
the Transferor Interest in accordance with the Trust Agreement;
(ii) an amount equal to the product of the Excess Transferor
Percentage for the related Collection Period and the Principal
Collections for such Collection Period will be deducted from the
Transferor Principal Collections for such Collection Period and
distributed to the Owner Trustee for distribution to the holders of
the Transferor Interest in accordance with the Trust Agreement, but
only to the extent that the Transferor Amount on such Deposit Date
(determined after giving effect to any Principal Receivables or, if
applicable, Interests in Other Floorplan Assets transferred to the
Issuer) exceeds the Required Transferor Amount for the immediately
preceding Determination Date;
(iii) an amount equal to the excess of (A) the Transferor
Interest Collections for the related Collection Period, over (B) the
amount calculated pursuant to clause (i) above will constitute
"AVAILABLE TRANSFEROR INTEREST COLLECTIONS" for such Collection
Period; and
(iv) an amount equal to the excess of (A) the Transferor
Principal Collections for the related Collection Period, over (B) the
amount calculated pursuant to clause (ii) above will constitute
"AVAILABLE TRANSFEROR PRINCIPAL COLLECTIONS" for such Collection
Period.
Unless the Servicer is allocating pursuant to another method which
satisfies the Rating Agency Condition, the sum of Available Transferor
Interest Collections and Available Transferor Principal Collections for any
Collection Period (such sum being "AVAILABLE TRANSFEROR COLLECTIONS" for
such Collection Period) will be deposited into the Collection
19
Account for application as provided herein and in any other Indenture
Supplements, but only to the extent that (i) (A) such funds are needed to
cover (pursuant to Section 4.04(b)(ii)) shortfalls in distributions and
deposits required to be made from Available Investor Interest Collections
for the related Distribution Date and Excess Interest Collections for such
Distribution Date available for the Series 2006-3 Notes from other Series
in Excess Interest Sharing Group One or (B) such funds are needed to cover
similar shortfalls for other Series or (ii) during an Early Amortization
Period, such funds (in an amount not to exceed the Available Subordinated
Amount) are needed to cover amounts payable pursuant to Section
4.04(d)(iii) for the related Distribution Date. Any remaining Available
Transferor Collections not required to be deposited into the Collection
Account will be distributed to the Owner Trustee for distribution to the
holders of the Transferor Interest in accordance with the Trust Agreement,
but only to the extent that the Transferor Amount on such Deposit Date
(determined after giving effect to any Principal Receivables or, if
applicable, Interests in Other Floorplan Assets transferred to the Issuer)
exceeds the Required Transferor Amount for the immediately preceding
Determination Date (after giving effect to the allocations, distributions,
withdrawals and deposits to be made on the Distribution Date immediately
following such Determination Date).
The allocations made from Collections in respect of the Transferor
Interest pursuant to this Section 4.01(b) do not apply to funds deposited
into the Collection Account that do not represent Collections. Such funds
that do not represent Collections include payment of the purchase price for
the Noteholders' Collateral pursuant to Section 2.03(c) or 6.01 of the
Transfer and Servicing Agreements or Section 5.05 or 11.04 of the Indenture
and payment of the purchase price for the Series 2006-3 Noteholders'
Collateral pursuant to Section 7.01 of this Indenture Supplement.
Notwithstanding anything to the contrary herein or in the Indenture,
all Interest Collections and Principal Collections relating to the time
period from but excluding the Series Cut-Off Date to but excluding the
Closing Date, will not be subject to allocation to Series 2006-3 pursuant
to the Indenture or this Indenture Supplement. All such Collections will be
allocated solely to the Transferor Interest and will be distributed by the
Servicer to the Owner Trustee for distribution to the holders of the
Transferor Interest in accordance with the Trust Agreement.
(c) Allocations to Series 2006-3. The Servicer will on each Deposit
Date allocate to the Series 2006-3 Noteholders and deposit into the
Collection Account for application as provided herein the following
amounts:
(i) an amount equal to the product of the Floating Investor
Percentage for the related Collection Period and the Interest
Collections for such Collection Period, but only to the extent
necessary to cause the amounts then on deposit in the Collection
Account due to deposits therein pursuant to this clause (i) to equal
the amounts to be distributed on the related Distribution Date
pursuant to clauses (i) through (ix) of Section 4.04(a); and
(ii) an amount equal to the product of the Investor Percentage
applicable for the related Collection Period and the Principal
Collections for such Collection Period, but
20
only to the extent necessary to cause the amounts then on deposit
in the Collection Account due to deposits therein pursuant to this
clause (ii) to equal the amounts to be distributed on the related
Distribution Date pursuant to Section 4.04(b)(iv), (c) or (d), as
applicable.
Section 4.02. DETERMINATION OF MONTHLY INTEREST.
(a) The amount of monthly interest (the "CLASS A MONTHLY INTEREST")
distributable from the Collection Account with respect to the Class A Notes
on any Distribution Date will be calculated by the Servicer and will be an
amount equal to the product of (i) a fraction, the numerator of which is
the actual number of days in the related Interest Period and the
denominator of which is 360, times (ii) the Class A Note Interest Rate in
effect with respect to the related Interest Period, times (iii) the Class A
Note Principal Balance as of the close of business on the last day of the
related Collection Period.
On the Determination Date relating to each Distribution Date, the
Servicer will determine the excess, if any (such excess, the "CLASS A
INTEREST SHORTFALL"), of (1) the Class A Monthly Interest for such
Distribution Date, over (2) the aggregate amount of funds allocated and
available to pay such Class A Monthly Interest on such Distribution Date.
If the Class A Interest Shortfall with respect to any Distribution Date is
greater than zero, on each subsequent Distribution Date until such Class A
Interest Shortfall is fully paid, an additional amount (the "CLASS A
ADDITIONAL INTEREST") calculated by the Servicer and equal to the product
of (i) a fraction, the numerator of which is the actual number of days in
the related Interest Period and the denominator of which is 360, times (ii)
the Class A Note Interest Rate in effect with respect to the related
Interest Period, times (iii) such Class A Interest Shortfall (including any
unpaid Class A Interest Shortfalls for prior Distribution Dates) will be
payable as provided herein with respect to the Class A Notes.
Notwithstanding anything to the contrary herein, the Class A Additional
Interest will be payable or distributed to the Class A Noteholders only to
the extent permitted by applicable law.
(b) The amount of monthly interest (the "CLASS B MONTHLY INTEREST")
distributable from the Collection Account with respect to the Class B Notes
on any Distribution Date will be calculated by the Servicer and will be an
amount equal to the product of (i) a fraction, the numerator of which is
the actual number of days in the related Interest Period and the
denominator of which is 360, times (ii) the Class B Note Interest Rate in
effect with respect to the related Interest Period, times (iii) the Class B
Note Principal Balance as of the close of business on the last day of the
related Collection Period.
On the Determination Date relating to each Distribution Date, the
Servicer will determine the excess, if any (such excess, the "CLASS B
INTEREST SHORTFALL"), of (1) the Class B Monthly Interest for such
Distribution Date, over (2) the aggregate amount of funds allocated and
available to pay such Class B Monthly Interest on such Distribution Date.
If the Class B Interest Shortfall with respect to any Distribution Date is
greater than zero, on each subsequent Distribution Date until such Class B
Interest Shortfall is fully paid, an additional amount (the
21
"CLASS B ADDITIONAL INTEREST") calculated by the Servicer and equal to the
product of (i) a fraction, the numerator of which is the actual number of days
in the related Interest Period and the denominator of which is 360, times (ii)
the Class B Note Interest Rate in effect with respect to the related Interest
Period, times (iii) such Class B Interest Shortfall (including any unpaid Class
B Interest Shortfalls for prior Distribution Dates) will be payable as provided
herein with respect to the Class B Notes. Notwithstanding anything to the
contrary herein, the Class B Additional Interest will be payable or distributed
to the Class B Noteholders only to the extent permitted by applicable law.
Section 4.03. DETERMINATION OF MONTHLY PRINCIPAL AMOUNT.
The amount of monthly principal distributable from the Collection Account
with respect to the Notes on each Distribution Date (the "MONTHLY PRINCIPAL
AMOUNT"), beginning with the Distribution Date in the month following the month
in which the Controlled Accumulation Period or, if earlier, the Early
Amortization Period, begins, will be equal to the least of (i) the Available
Investor Principal Collections with respect to such Distribution Date, (ii) for
each Distribution Date with respect to the Controlled Accumulation Period, the
Controlled Deposit Amount for such Distribution Date and (iii) the Adjusted
Invested Amount as of such Distribution Date (after taking into account any
adjustments to be made on such Distribution Date pursuant to Sections 4.05 and
4.06).
Section 4.04. APPLICATION OF AVAILABLE FUNDS ON DEPOSIT IN COLLECTION
ACCOUNT AND OTHER SOURCES.
(a) On each Distribution Date, the Servicer will apply, or direct the
Indenture Trustee to apply by written instruction to the Indenture Trustee,
Available Investor Interest Collections with respect to such Distribution Date
on deposit in the Collection Account to make the following distributions or
deposits in the following priority:
(i) an amount equal to the Class A Monthly Interest for such
Distribution Date, together with any Class A Monthly Interest previously
due but not paid to the Class A Noteholders on prior Distribution Dates and
any Class A Additional Interest for such Distribution Date, will be
distributed to the Paying Agent for payment to the Class A Noteholders;
(ii) an amount equal to the Class B Monthly Interest for such
Distribution Date, together with any Class B Monthly Interest previously
due but not paid to the Class B Noteholders on prior Distribution Dates and
any Class B Additional Interest for such Distribution Date, will be
distributed to the Paying Agent for payment to the Class B Noteholders;
(iii) if Ford Credit or one of its Affiliates is no longer the
Servicer, an amount equal to the Monthly Servicing Fee for such
Distribution Date, together with any Monthly Servicing Fees previously due
but not distributed to the Servicer on prior
22
Distribution Dates, will be distributed to the Servicer (unless such
amount has been netted against deposits into the Collection Account in
accordance with Section 8.04(c) of the Indenture);
(iv) an amount equal to the Investor Default Amount for such
Distribution Date will be treated as Investor Principal Collections for
such Distribution Date;
(v) an amount equal to the Reserve Fund Deposit Amount for such
Distribution Date will be deposited into the Reserve Fund;
(vi) an amount equal to the sum of Investor Charge-Offs that have not
been previously reimbursed will be treated as Investor Principal
Collections for such Distribution Date;
(vii) an amount equal to the sum of Reallocated Principal Collections
that have not been previously reimbursed will be treated as Investor
Principal Collections for such Distribution Date;
(viii) beginning on the Accumulation Period Reserve Account Funding
Date, an amount equal to the Accumulation Period Reserve Account Deposit
Amount for such Distribution Date will be deposited into the Accumulation
Period Reserve Account;
(ix) if Ford Credit or one of its Affiliates is the Servicer, an
amount equal to the Monthly Servicing Fee for such Distribution Date,
together with any Monthly Servicing Fees previously due but not distributed
to the Servicer on prior Distribution Dates, will be distributed to the
Servicer (unless such amount has been netted against deposits into the
Collection Account in accordance with Section 8.04(c) of the Indenture);
(x) an amount equal to the excess of the Required Subordinated Amount
over the Available Subordinated Amount will be distributed to the Owner
Trustee for distribution to the holders of the Transferor Interest in
accordance with the Trust Agreement to increase the Available Subordinated
Amount by the amount so distributed (unless such amount has been netted
against deposits into the Collection Account in accordance with Section
8.04(c) of the Indenture);
(xi) an amount equal to the Interest Collections Shortfalls for other
outstanding Series in Excess Interest Sharing Group One will be treated as
Excess Interest Collections available from Series 2006-3 and applied to
cover the Interest Collections Shortfalls for other outstanding Series in
Excess Interest Sharing Group One; and
(xii) all remaining Available Investor Interest Collections for such
Distribution Date will be distributed to the Owner Trustee for distribution
to the holders of the Transferor Interest in accordance with the Trust
Agreement (unless such amount has been
23
netted against deposits into the Collection Account in accordance with
Section 8.04(c) of the Indenture).
(b) If Available Investor Interest Collections with respect to any
Distribution Date are insufficient to distribute or deposit the full amounts
required under certain of the clauses of Section 4.04(a), the Servicer will
apply, or direct the Indenture Trustee to apply by written instructions to the
Indenture Trustee, on such Distribution Date available funds from the following
sources in the following order to make up any shortfalls:
(i) from Excess Interest Collections available from other outstanding
Series in Excess Interest Sharing Group One, but only to cover shortfalls
in the distributions and deposits required under clauses (i) through (x) of
Section 4.04(a) in that order;
(ii) from Available Transferor Collections available for deposit into
the Collection Account, but only in an amount not exceeding the Available
Subordinated Amount (before giving effect to Section 4.05) for such
Distribution Date and only to cover shortfalls in the distributions and
deposits required under clauses (i) through (vii) of Section 4.04(a) in
that order; provided that, if the amount of Available Transferor
Collections is insufficient to cover such shortfalls for Series 2006-3, as
well as any similar shortfalls for other Series, then Available Transferor
Collections will be allocated to Series 2006-3 based on the ratio that the
Available Subordinated Amount for Series 2006-3 bears to the aggregate
Available Subordinated Amount for all Series (including Series 2006-3)
having such shortfalls; and, provided, further, that if the amount of
Available Transferor Collections exceeds the aggregate amount of such
shortfalls for all Series (including Series 2006-3), then the excess
Available Transferor Collections will be applied to cover any unpaid
Adjustment Payments;
(iii) from the Reserve Fund Available Amount, but only to cover
shortfalls in the distributions and deposits required under clauses (i)
through (iv) of Section 4.04(a) in that order; and
(iv) from the Reallocated Principal Collections for such Distribution
Date, but only to cover shortfalls in the distribution required under
clauses (i) and (ii) of Section 4.04(a).
(c) On each Distribution Date with respect to the Revolving Period, the
Servicer will apply, or direct the Indenture Trustee to apply by written
instruction to the Indenture Trustee, Available Investor Principal Collections
on deposit in the Collection Account with respect to such Distribution Date to
make the following distributions or deposits in the following priority:
(i) such Available Investor Principal Collections will be treated as
Shared Principal Collections with respect to Principal Sharing Group One
and applied in accordance with Section 4.08 hereof and Section 8.05(c) of
the Indenture; and
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(ii) the balance of such Available Investor Principal Collections not
applied pursuant to clause (i) above will be distributed to the Owner
Trustee for distribution to the holders of the Transferor Interest in
accordance with the Trust Agreement (unless such amount has been netted
against deposits into the Collection Account in accordance with Section
8.04(c) of the Indenture), but only to the extent that such balance is not
otherwise required to be deposited into the Excess Funding Account pursuant
to Section 8.03(b) of the Indenture.
(d) On each Distribution Date with respect to the Controlled Accumulation
Period or the Early Amortization Period, the Servicer will apply, or direct the
Indenture Trustee to apply by written instruction to the Indenture Trustee,
Available Investor Principal Collections on deposit in the Collection Account
with respect to such Distribution Date to make the following distributions or
deposits in the following priority:
(i) during the Controlled Accumulation Period and before the payment
in full of the Class A Notes and the Class B Notes, (A) an amount equal to
the excess, if any, of the Monthly Principal Amount for such Distribution
Date, over the Series 2006-3 Excess Funding Amount (up to the Controlled
Deposit Amount for such Distribution Date) will be deposited into the
Principal Funding Account and (B) the Series 2006-3 Excess Funding Amount
(up to the Controlled Deposit Amount for such Distribution Date) will be
withdrawn from the Excess Funding Account and deposited into the Principal
Funding Account;
(ii) so long as the Early Amortization Period has not commenced, on
the Expected Final Payment Date, all Available Investor Principal
Collections for such Distribution Date, together with all available amounts
then on deposit in the Principal Funding Account (including any Series
2006-3 Excess Funding Amount deposited therein during the related
Collection Period), will be distributed to the Paying Agent for payment
first to the Class A Noteholders until the Principal Balance of the Class A
Notes is reduced to zero and then for payment to the Class B Noteholders
until the Principal Balance of the Class B Notes is reduced to zero;
(iii) during the Early Amortization Period, all Available Investor
Principal Collections for such Distribution Date, together with all
available amounts, if any, then on deposit in the Principal Funding Account
(including any Series 2006-3 Excess Funding Amount deposited therein during
the related Collection Period or on such Distribution Date and Available
Transferor Collections (in an amount not to exceed the Available
Subordinated Amount)), will be distributed to the Paying Agent first for
payment to the Class A Noteholders until the Principal Balance of the Class
A Notes is reduced to zero and then for payment to the Class B Noteholders
until the Principal Balance of the Class B Notes is reduced to zero; and
25
(iv) the balance of such Available Investor Principal Collections will
be treated as Shared Principal Collections with respect to Principal
Sharing Group One and applied in accordance with Section 4.08 hereof and
Section 8.05(c) of the Indenture.
(e) On each Distribution Date with respect to the Controlled Accumulation
Period, the Indenture Trustee, acting in accordance with written instructions
from the Servicer, will withdraw from the Excess Funding Account and deposit
into the Principal Funding Account the Series 2006-3 Excess Funding Amount (up
to the Controlled Deposit Amount for such Distribution Date) pursuant to Section
4.04(d)(i). On the first Distribution Date with respect to the Early
Amortization Period, the Indenture Trustee, acting in accordance with the
written instructions from the Servicer, will withdraw from the Excess Funding
Account and distribute to the Paying Agent for payment to the Series 2006-3
Noteholders the Series 2006-3 Excess Funding Amount pursuant to Section
4.04(d)(iii).
(f) The Controlled Accumulation Period is scheduled to commence on the
first day of the December 2008 Collection Period; provided, however, that, if
the Accumulation Period Length (determined as described below) is less than six
Collection Periods, the date on which the Controlled Accumulation Period
actually commences will be delayed to the first day of the Collection Period
that is the number of whole Collection Periods before the Expected Final Payment
Date at least equal to the Accumulation Period Length and, as a result, the
number of Collection Periods in the Controlled Accumulation Period will at least
equal the Accumulation Period Length. On or before each Determination Date
beginning with the Determination Date in the November 2008 Collection Period and
ending when the Controlled Accumulation Period begins, the Servicer will
determine the "ACCUMULATION PERIOD LENGTH," which will equal the number of whole
Collection Periods such that the sum of the Accumulation Period Factors for each
Collection Period during such period will be equal to or greater than the
Required Accumulation Factor Number; provided, however, that the Accumulation
Period Length will not be determined to be less than one Collection Period; and
provided, further, that the determination of the Accumulation Period Length may
be changed at any time upon receipt by the Indenture Trustee of an Officer's
Certificate from the Servicer that such change will not have an Adverse Effect.
(g) The amount of all distributions and deposits that are required to be
made by the Indenture Trustee pursuant to Sections 4.04, 4.06, 4.09, 4.10, 4.13
and 4.14 shall be set forth in written instructions provided by the Servicer to
the Indenture Trustee no later than the second (2nd) Business Day prior to the
related Distribution Date or other date on which the related distribution or
deposit is required to be made by the Indenture Trustee.
(h) All distributions that are made by the Indenture Trustee to the Owner
Trustee for distribution to the holders of the Transferor Interest pursuant to
this Indenture Supplement shall be made in accordance with such written
remittance instructions as may be provided to the Indenture Trustee by the Owner
Trustee from time to time.
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Section 4.05. INVESTOR CHARGE-OFFS.
On each Determination Date, the Servicer will calculate the Investor
Default Amount, if any, for the related Distribution Date. If the Investor
Default Amount for any Distribution Date exceeds the sum of:
(i) the Available Investor Interest Collections for such Distribution
Date applied to fund such Investor Default Amount pursuant to Section
4.04(a)(iv);
(ii) the Excess Interest Collections available from other outstanding
Series in Excess Interest Sharing Group One for such Distribution Date
applied to fund such Investor Default Amount pursuant to Section
4.04(a)(iv) in accordance with Section 4.04(b)(i);
(iii) the Available Transferor Collections retained in the Collection
Account for such Distribution Date applied to fund such Investor Default
Amount pursuant to Section 4.04(a)(iv) in accordance with Section
4.04(b)(ii); and
(iv) the Reserve Fund Available Amount for such Distribution Date
applied to fund such Investor Default Amount pursuant to Section
4.04(a)(iv) in accordance with Section 4.04(b)(iii);
then, if the Available Subordinated Amount is greater than zero (after
giving effect to any reductions thereof pursuant to Section 4.04(b)(ii)), a
portion of the Available Subordinated Amount for the related Determination Date,
in an amount not to exceed the lesser of (1) the Available Subordinated Amount
and (2) the amount of such unfunded Investor Default Amount, will be reallocated
to the Series 2006-3 Notes in order to avoid a reduction of the Invested Amount.
Any excess of the amount of such unfunded Investor Default Amount over the
amount of the Available Subordinated Amount reallocated pursuant to this Section
will constitute an "INVESTOR CHARGE-OFF" for such Distribution Date and will
reduce the Invested Amount. The amount of any Available Subordinated Amount
reallocated pursuant to this Section will reduce the Available Subordinated
Amount by the amount so reallocated.
Section 4.06. REALLOCATED PRINCIPAL COLLECTIONS.
On each Distribution Date, the Servicer will apply, or direct the Indenture
Trustee by written instruction to the Indenture Trustee to withdraw from the
Collection Account and apply, Reallocated Principal Collections with respect to
such Distribution Date and apply such amounts on such Distribution Date in
accordance with Section 4.04(b)(iv). If, on any Distribution Date, Reallocated
Principal Collections for such Distribution Date are so applied, then, if the
Available Subordinated Amount is greater than zero (after giving effect to any
reductions thereof pursuant to Sections 4.04(b)(ii) and 4.05), a portion of the
Available Subordinated Amount, in an amount not to exceed the lesser of (1) the
Available Subordinated Amount and (2) the amount of such Reallocated Principal
Collections, will be reallocated to the Series 2006-3 Notes in order to
27
avoid a reduction of the Invested Amount. Any excess of the amount of such
Reallocated Principal Collections over the amount of the Available Subordinated
Amount reallocated pursuant to this Section will constitute "UNCOVERED
REALLOCATED PRINCIPAL COLLECTIONS" for such Distribution Date and will reduce
the Invested Amount. The amount of any Available Subordinated Amount reallocated
pursuant to this Section will reduce the Available Subordinated Amount by the
amount so reallocated.
Section 4.07. EXCESS INTEREST COLLECTIONS.
Subject to Section 8.05(b) of the Indenture, Excess Interest Collections
with respect to the Excess Interest Sharing Series in Excess Interest Sharing
Group One for any Distribution Date will be allocated to Series 2006-3 in an
amount equal to the product of (i) the aggregate amount of Excess Interest
Collections with respect to all the Excess Interest Sharing Series in Excess
Interest Sharing Group One for such Distribution Date and (ii) a fraction, the
numerator of which is the Interest Collections Shortfall for Series 2006-3 for
such Distribution Date and the denominator of which is the aggregate amount of
Interest Collections Shortfalls for all the Excess Interest Sharing Series in
Excess Interest Sharing Group One for such Distribution Date. The "INTEREST
COLLECTIONS SHORTFALL" for Series 2006-3 for any Distribution Date will equal
the excess, if any, of (a) the full amount required to be paid, without
duplication, pursuant to clauses (i) through (x) of Section 4.04(a) on such
Distribution Date, over (b) the Available Investor Interest Collections for such
Distribution Date. The "EXCESS INTEREST COLLECTIONS" with respect to Series
2006-3 for any Distribution Date will equal the excess, if any, of (a) the
Available Investor Interest Collections for such Distribution Date, over (b) the
full amount required to be distributed, without duplication, pursuant to clauses
(i) through (x) of Section 4.04(a) on such Distribution Date.
Section 4.08. SHARED PRINCIPAL COLLECTIONS.
Subject to Section 8.05(c) of the Indenture, the aggregate amount of Shared
Principal Collections with respect to the Principal Sharing Series in Principal
Sharing Group One for any Distribution Date will be allocated to Series 2006-3
in an amount equal to the product of (i) such aggregate amount, times (ii) a
fraction, the numerator of which is the Principal Shortfall for Series 2006-3
for such Distribution Date and the denominator of which is the aggregate amount
of Principal Shortfalls for all the Principal Sharing Series in Principal
Sharing Group One for such Distribution Date. The "PRINCIPAL SHORTFALL" for
Series 2006-3 for any Distribution Date will equal (a) for any Distribution Date
with respect to the Revolving Period, zero, (b) for any Distribution Date with
respect to the Controlled Accumulation Period, the excess, if any, of the
Controlled Deposit Amount with respect to such Distribution Date, over the
amount of Available Investor Principal Collections for such Distribution Date
(excluding any portion thereof attributable to Shared Principal Collections) and
(c) for any Distribution Date with respect to the Early Amortization Period, the
excess, if any, of the Adjusted Invested Amount, over the amount of Available
Investor Principal Collections for such Distribution Date (excluding any portion
thereof attributable to Shared Principal Collections). The "SHARED PRINCIPAL
COLLECTIONS" with respect to Series 2006-3 for any Distribution Date will equal
the excess, if any, of (a) the
28
Available Investor Principal Collections for such Distribution Date
(without giving effect to clause (a)(ii) of the definition thereof), over (b)
the full amount required to be deposited or distributed, without duplication,
pursuant to Sections 4.04(c) and (d) on such Distribution Date.
Section 4.09. AVAILABLE SUBORDINATED AMOUNT.
(a) On each Distribution Date, the Servicer will apply, or cause the
Indenture Trustee by written instruction to the Indenture Trustee to withdraw
the Available Transferor Collections on deposit in the Collection Account with
respect to such Distribution Date and apply, such amounts to the extent
necessary on such Distribution Date in accordance with Section 4.04(b)(ii). The
amount of any such Available Transferor Collections so applied on any
Distribution Date will reduce the Available Subordinated Amount by the amount so
applied. The balance of Available Transferor Collections on deposit in the
Collection Account on any Distribution Date, after giving effect to any
distributions or deposits thereof in accordance with Section 4.04(b)(ii), will
be distributed by the Indenture Trustee, at the written direction of the
Servicer, to the Owner Trustee for distribution to the holders of the Transferor
Interest in accordance with the Trust Agreement, but only to the extent that the
Transferor Amount (determined after giving effect to any Principal Receivables
or, if applicable, Interests in Other Floorplan Assets transferred to the Issuer
on such Distribution Date) exceeds the Required Transferor Amount for the
immediately preceding Determination Date. In addition, during an Early
Amortization Period, Available Transferor Collections, to the extent of the
Available Subordinated Amount, will be available for distribution in accordance
with Section 4.04(d)(iii). However, the amount of any such Available Transferor
Collections so applied on any Distribution Date will not reduce the Available
Subordinated Amount by the amount so applied.
(b) The Available Subordinated Amount may also be reallocated to the
Invested Amount in order to avoid a reduction of the Invested Amount pursuant to
(i) unfunded Investor Default Amounts pursuant to Section 4.05 or (ii)
Reallocated Principal Collections pursuant to Section 4.06. The amount of the
Available Subordinated Amount so reallocated on any Distribution Date will
reduce the Available Subordinated Amount by the amount so reallocated.
(c) Notwithstanding any other provision herein, the Transferors may elect
to increase the Available Subordinated Amount; provided that the cumulative
amount of such increases pursuant to this Section 4.09(c) does not exceed 3.50%
of the Initial Note Principal Balance.
Section 4.10. PRINCIPAL FUNDING ACCOUNT.
(a) The Indenture Trustee, for the benefit of the Noteholders, will
establish and maintain with the Indenture Trustee in the name of the Indenture
Trustee, on behalf of the Issuer, a Qualified Account (including any subaccounts
thereof) bearing a designation clearly indicating that the funds and other
property credited thereto are held for the benefit of the Noteholders (the
"PRINCIPAL FUNDING ACCOUNT"). The Principal Funding Account will consist of two
segregated subaccounts: (i) the "PRINCIPAL FUNDING ACCOUNT SECURITIES
SUBACCOUNT" to which financial assets (other than cash and money) credited to
the Principal Funding Account will be credited
29
and (ii) the "PRINCIPAL FUNDING ACCOUNT CASH DEPOSIT SUBACCOUNT" to which cash
and money deposited in the Principal Funding Account will be credited. The
Indenture Trustee will possess all right, title and interest in all Eligible
Investments and all monies, cash, instruments, securities, securities
entitlements, documents, certificates of deposit and other property from time to
time on deposit in or credited to the Principal Funding Account and in all
interest, proceeds, earnings, income, revenue, dividends and other distributions
thereof (including any accrued discount realized on liquidation of any
investment purchased at a discount) for the benefit of the Noteholders. Except
as expressly provided in this Indenture Supplement and the Transfer and
Servicing Agreements, the Servicer agrees that it has no right of setoff or
banker's lien against, and no right to otherwise deduct from, any funds and
other property held in the Principal Funding Account for any amount owed to it
by the Indenture Trustee, the Issuer, any Noteholder or any Series Enhancer. If,
at any time, (x) the Principal Funding Account ceases to be a Qualified Account
or (y) the Indenture Trustee no longer maintains the Principal Funding Account,
then within ten Business Days (or such longer period as to which each Rating
Agency may consent), the Indenture Trustee (or the Servicer on its behalf) will
establish a new Principal Funding Account meeting the conditions specified
above, transfer any monies, instruments, securities, security entitlements,
documents, certificates of deposit and other property to such new Principal
Funding Account and from the date such new Principal Funding Account is
established, it will be the "Principal Funding Account." Any Eligible
Institution at which the successor Principal Funding Account is established
shall deliver a written acceptance of its appointment and shall agree to be
bound by the provisions in the Indenture relating to the Securities Intermediary
and the Bank as they relate to the Principal Funding Account. The Indenture
Trustee, at the written direction of the Servicer, will (i) make withdrawals
from the Principal Funding Account from time to time, in the amounts and for the
purposes set forth in this Indenture Supplement and (ii) on each Distribution
Date (from and after the commencement of the Controlled Accumulation Period)
before the earlier of payment in full of the Series 2006-3 Notes and the Series
2006-3 Final Maturity Date, make deposits into the Principal Funding Account in
the amounts specified in, and in accordance with, Section 4.04(d)(i).
(b) Funds on deposit in the Principal Funding Account will, at the written
direction of the Servicer, be invested by the Indenture Trustee (including the
Securities Intermediary) in Eligible Investments selected by the Servicer. All
such Eligible Investments will be held by the Indenture Trustee or its nominee
for the benefit of the Noteholders. The Indenture Trustee will cause each
Eligible Investment to be delivered to it (including a securities intermediary)
and will be credited to the Principal Funding Account Securities Subaccount.
Funds on deposit in the Principal Funding Account will be invested in Eligible
Investments that will mature so that such funds will be available no later than
the following Distribution Date. On each Distribution Date, all interest and
other investment earnings (net of losses and investment expenses) on funds on
deposit in the Principal Funding Account will be treated as Available Investor
Interest Collections with respect to the last day of the related Collection
Period. The Indenture Trustee will bear no responsibility or liability for any
losses resulting from investment or reinvestment of any funds in accordance with
this Section 4.10(b) nor for the selection of Eligible Investments in
30
accordance with the provisions of this Indenture Supplement, the Indenture
or the Transfer and Servicing Agreements.
Section 4.11. RESERVE FUND.
(a) The Indenture Trustee, for the benefit of the Series 2006-3
Noteholders, will establish and maintain with the Indenture Trustee or its
nominee in the name of the Indenture Trustee, on behalf of the Issuer, a
Qualified Account (including any subaccounts thereof) bearing a designation
clearly indicating that the funds and other property credited thereto are held
for the benefit of the Series 2006-3 Noteholders (the "RESERVE FUND"). The
Reserve Fund will consist of two segregated subaccounts: (i) the "RESERVE FUND
SECURITIES SUBACCOUNT" to which financial assets (other than cash and money)
credited to the Reserve Fund will be credited and (ii) the "RESERVE FUND CASH
DEPOSIT SUBACCOUNT" to which cash and money deposited in the Reserve Fund will
be credited. The Indenture Trustee will possess all right, title and interest in
all Eligible Investments and all monies, cash, instruments, securities,
securities entitlements, documents, certificates of deposit and other property
from time to time on deposit in or credited to the Reserve Fund and in all
interest, proceeds, earnings, income, revenue, dividends and other distributions
thereof (including any accrued discount realized on liquidation of any
investment purchased at a discount) for the benefit of the Series 2006-3
Noteholders. Except as expressly provided in this Indenture Supplement and the
Transfer and Servicing Agreements, the Servicer agrees that it has no right of
setoff or banker's lien against, and no right to otherwise deduct from, any
funds and other property held in the Reserve Fund for any amount owed to it by
the Indenture Trustee, the Issuer, any Noteholder or any Series Enhancer. If, at
any time, (x) the Reserve Fund ceases to be a Qualified Account or (y) the
Indenture Trustee no longer maintains the Reserve Fund, then within ten Business
Days (or such longer period as to which each Rating Agency may consent), the
Indenture Trustee (or the Servicer on its behalf) will establish a new Reserve
Fund meeting the conditions specified above, transfer any monies, instruments,
securities, security entitlements, documents, certificates of deposit and other
property to such new Reserve Fund and from the date such new Reserve Fund is
established, it will be the "Reserve Fund." Any Eligible Institution at which
the successor Reserve Fund is established will deliver a written acceptance of
its appointment and will agree to be bound by the provisions in the Indenture
relating to the Securities Intermediary and the Bank as they relate to the
Reserve Fund. The Indenture Trustee, at the written direction of the Servicer,
will make deposits to and withdrawals from the Reserve Fund from time to time,
in the amounts and for the purposes set forth in this Indenture Supplement.
(b) Funds on deposit in the Reserve Fund will, at the written direction of
the Servicer, be invested by the Indenture Trustee or its nominee (including the
Securities Intermediary) in Eligible Investments selected by the Servicer. All
such Eligible Investments will be held by the Indenture Trustee or its nominee
for the benefit of the Series 2006-3 Noteholders. The Indenture Trustee will
cause each Eligible Investment to be delivered to it or its nominee (including a
securities intermediary) and will be credited to the Reserve Fund Securities
Subaccount. Funds on deposit in the Reserve Fund will be invested in Eligible
Investments that will mature so that
31
such funds will be available no later than the following Distribution Date.
On each Distribution Date, all interest and other investment earnings (net of
losses and investment expenses) on funds on deposit in the Reserve Fund will be
treated as Available Investor Interest Collections for such Distribution Date.
The Indenture Trustee will bear no responsibility or liability for any losses
resulting from investment or reinvestment of any funds in accordance with this
Section 4.11(b) nor for the selection of Eligible Investments in accordance with
the provisions of this Indenture Supplement, the Indenture or the Transfer and
Servicing Agreements.
(c) The Reserve Fund will be funded by the Transferors on the Closing Date
in the amount of the Reserve Fund Initial Amount, and will be increased and
decreased thereafter as described herein.
(d) If on any Distribution Date, after giving effect to all withdrawals
from and deposits to the Reserve Fund, the amount on deposit in the Reserve Fund
(excluding amounts relating to investment earnings) exceeds the Reserve Fund
Required Amount then in effect, the Indenture Trustee will, at the written
direction of the Servicer, distribute such excess to the Owner Trustee for
distribution to the holders of the Transferor Interest in accordance with the
Trust Agreement.
(e) Upon the earlier to occur of the date on which the Series 2006-3 Notes
are paid in full and the Series Final Maturity Date, any funds remaining in the
Reserve Fund, after giving effect to any deposits and withdrawals made therefrom
on such date, will be treated as Available Investor Principal Collections. The
Reserve Fund will thereafter be deemed to have terminated for purposes of this
Indenture Supplement.
Section 4.12. DETERMINATION OF LIBOR.
(a) On each LIBOR Determination Date, the Indenture Trustee will determine
LIBOR on the basis of the rate for deposits in United States dollars for a
one-month period which appears on Telerate Page 3750 as of 11:00 a.m., London
time, on such date. If such rate does not appear on Telerate Page 3750, the rate
for that LIBOR Determination Date will be determined on the basis of the rates
at which deposits in United States dollars are offered by the Reference Banks at
approximately 11:00 a.m., London time, on that day to prime banks in the London
interbank market for a one-month period. The Indenture Trustee will request the
principal London office of each of the Reference Banks to provide a quotation of
its rate. If at least two such quotations are provided, the rate for that LIBOR
Determination Date will be the arithmetic mean of the quotations. If fewer than
two quotations are provided as requested, the rate for that LIBOR Determination
Date will be the arithmetic mean of the rates quoted by major banks in New York
City, selected by the Servicer, at approximately 11:00 a.m. (New York City time)
on that day for loans in United States dollars to leading European banks for a
one-month period.
32
(b) On each LIBOR Determination Date, the Indenture Trustee will send
to the Servicer, the Issuer and the Administrator by facsimile
transmission, notification of LIBOR for the following Interest Period.
(c) The Servicer will provide on the Monthly Statement the Class A
Note Interest Rate and the Class B Note Interest Rate applicable to each
Distribution Date. On each Distribution Date, the Class A Note Interest
Rate and the Class B Note Interest Rate applicable to the then current and
the immediately preceding Interest Periods may be obtained by Series 2006-3
Noteholders through the Indenture Trustee's internet website, which
initially is located at xxxx://xxx.xxxxxxxx.xxx/xxx.
(d) Other than the determination of LIBOR as provided for herein, all
other determinations and calculations provided for in this Indenture
Supplement shall be made by the Servicer.
Section 4.13. ACCUMULATION PERIOD RESERVE ACCOUNT.
(a) The Indenture Trustee, for the benefit of the Noteholders, will
establish and maintain with the Indenture Trustee or its nominee in the
name of the Indenture Trustee, on behalf of the Issuer, a Qualified Account
(including any subaccounts thereof) bearing a designation clearly
indicating that the funds and other property credited thereto are held for
the benefit of the Noteholders (the "ACCUMULATION PERIOD RESERVE ACCOUNT").
The Accumulation Period Reserve Account will consist of two segregated
subaccounts: (i) the "ACCUMULATION PERIOD RESERVE ACCOUNT SECURITIES
SUBACCOUNT" to which financial assets (other than cash and money) credited
to the Accumulation Period Reserve Account will be credited and (ii) the
"ACCUMULATION PERIOD RESERVE ACCOUNT CASH DEPOSIT SUBACCOUNT" to which cash
and money deposited in the Accumulation Period Reserve Account will be
credited. The Indenture Trustee will possess all right, title and interest
in all Eligible Investments and all monies, cash, instruments, securities,
securities entitlements, documents, certificates of deposit and other
property from time to time on deposit in or credited to the Accumulation
Period Reserve Account and in all interest, proceeds, earnings, income,
revenue, dividends and other distributions thereof (including any accrued
discount realized on liquidation of any investment purchased at a discount)
for the benefit of the Noteholders. Except as expressly provided in this
Indenture Supplement and the Transfer and Servicing Agreements, the
Servicer agrees that it has no right of setoff or banker's lien against,
and no right to otherwise deduct from, any funds and other property held in
the Accumulation Period Reserve Account for any amount owed to it by the
Indenture Trustee, the Issuer, any Noteholder or any Series Enhancer. If,
at any time, (x) the Accumulation Period Reserve Account ceases to be a
Qualified Account or (y) the Indenture Trustee no longer maintains the
Accumulation Period Reserve Account, then within ten Business Days (or such
longer period as to which each Rating Agency may consent), the Indenture
Trustee (or the Servicer on its behalf) will establish a new Accumulation
Period Reserve Account meeting the conditions specified above, transfer any
monies, instruments, securities, security entitlements, documents,
certificates of deposit and other property to such new Accumulation Period
Reserve Account and from the date such new Accumulation Period Reserve
Account is
33
established, it will be the "Accumulation Period Reserve Account." Any
Eligible Institution at which the successor Accumulation Period Reserve
Account is established shall deliver a written acceptance of its
appointment and shall agree to be bound by the provisions in the Indenture
relating to the Securities Intermediary and the Bank as they relate to the
Accumulation Period Reserve Account. The Indenture Trustee, at the
direction of the Servicer, will (i) make withdrawals from the Accumulation
Period Reserve Account from time to time, in the amounts and for the
purposes set forth in this Indenture Supplement, and (ii) on each
Distribution Date beginning on the Accumulation Period Reserve Account
Funding Date and before the termination of the Accumulation Period Reserve
Account as provided below, make deposits into the Accumulation Period
Reserve Account in the amount of the Accumulation Period Reserve Account
Deposit Amount for such Distribution Date from: (1) Available Investor
Interest Collections for such Distribution Date as applied in accordance
with Section 4.04(a)(viii) and (2) Excess Interest Collections available
from other outstanding Series in Excess Interest Sharing Group One for such
Distribution Date as applied in accordance with Section 4.04(b)(i).
(b) Funds on deposit in the Accumulation Period Reserve Account will,
at the written direction of the Servicer, be invested by the Indenture
Trustee (including the Securities Intermediary) in Eligible Investments
selected by the Servicer. All such Eligible Investments will be held by the
Indenture Trustee or its nominee for the benefit of the Noteholders. The
Indenture Trustee will cause each Eligible Investment to be delivered to it
(including a securities intermediary) and will be credited to the
Accumulation Period Reserve Account Securities Subaccount. Funds on deposit
in the Accumulation Period Reserve Account will be invested in Eligible
Investments that will mature so that such funds will be available no later
than the following Distribution Date. On each Distribution Date, all
interest and other investment earnings (net of losses and investment
expenses) on funds on deposit in the Accumulation Period Reserve Account
will be treated as Available Investor Interest Collections with respect to
the last day of the related Collection Period. The Indenture Trustee will
bear no responsibility or liability for any losses resulting from
investment or reinvestment of any funds in accordance with this Section
4.13(b) nor for the selection of Eligible Investments in accordance with
the provisions of this Indenture Supplement, the Indenture or the Transfer
and Servicing Agreements.
(c) On or before each Distribution Date with respect to the Controlled
Accumulation Period and on or before the first Distribution Date with
respect to the Early Amortization Period beginning after the commencement
of the Controlled Accumulation Period, the Servicer will calculate the
Accumulation Period Reserve Draw Amount; provided, however, that such
amount will be reduced to the extent that funds otherwise would be
available for deposit into the Accumulation Period Reserve Account pursuant
to Sections 4.04(a)(viii) and 4.04(b)(i) on such Distribution Date. If for
any Distribution Date, the Accumulation Period Reserve Draw Amount is
greater than zero, the Accumulation Period Reserve Draw Amount, up to the
Available Accumulation Period Reserve Account Amount, will be withdrawn
from the Accumulation Period Reserve Account on such Distribution Date by
the Indenture Trustee (acting in accordance with the written instructions
of the Servicer) and deposited into the Collection Account for application
as Available Investor Interest Collections.
34
(d) If on any Distribution Date, after giving effect to all
withdrawals from and deposits to the Accumulation Period Reserve Account,
the amount on deposit in the Accumulation Period Reserve Account exceeds
the Accumulation Period Reserve Account Required Amount then in effect, the
Indenture Trustee will, at the written direction of the Servicer,
distribute such excess to the Owner Trustee for distribution to the holders
of the Transferor Interest in accordance with the Trust Agreement.
(e) Upon the earliest to occur of (i) the payment in full of the
Series 2006-3 Notes, (ii) the first Distribution Date relating to the Early
Amortization Period and (iii) the Final Maturity Date, any funds remaining
in the Accumulation Period Reserve Account, after withdrawal of funds
therefrom on such date in accordance with Section 4.13(c), will be treated
as Available Investor Interest Collections. The Accumulation Period Reserve
Account will thereafter be deemed to have terminated for purposes of this
Indenture Supplement.
Section 4.14. INVESTMENT INSTRUCTIONS.
Any investment instructions required to be given to the Indenture Trustee
pursuant to the terms hereof must be given to the Indenture Trustee by no later
than 10:00 a.m. (New York City time) on the date such investment is to be made.
Any such investment instructions may be in the form of standing instructions
given to the Indenture Trustee by the Servicer. In the event the Indenture
Trustee receives such investment instructions later than such time, the
Indenture Trustee may, but is not obligated to, make such investment. In the
event the Indenture Trustee is unable to make an investment required in any
investment instructions received by the Indenture Trustee after 10:00 a.m. (New
York City time) on such day, such investment will be made by the Indenture
Trustee on the next succeeding Business Day. In no event will the Indenture
Trustee be liable for any investment not made pursuant to investment
instructions received after 10:00 a.m. (New York City time) on the day such
investment is requested to be made.
ARTICLE V
DELIVERY OF SERIES 2006-3 NOTES;
DISTRIBUTIONS; REPORTS TO SERIES 2006-3 NOTEHOLDERS
Section 5.01. DELIVERY AND PAYMENT FOR SERIES 2006-3 NOTES.
The Indenture Trustee will authenticate the Series 2006-3 Notes in
accordance with Section 2.03 of the Indenture. The Indenture Trustee will
deliver the Series 2006-3 Notes to the Issuer when so authenticated.
Section 5.02. DISTRIBUTIONS.
(a) On each Distribution Date, the Paying Agent will distribute to
each Class A Noteholder of record on the related Record Date (other than as
provided in Section 11.02 of the Indenture) such Class A Noteholder's pro
rata share of the amounts held by the Paying Agent
35
that are allocated and available on such Distribution Date to pay interest
on the Class A Notes (based solely on the information contained in the
Monthly Statement) pursuant to this Indenture Supplement.
(b) On each Distribution Date, the Paying Agent will distribute to
each Class A Noteholder of record on the related Record Date (other than as
provided in Section 11.02 of the Indenture) such Class A Noteholder's pro
rata share of the amounts held by the Paying Agent that are allocated and
available on such Distribution Date to pay principal of the Class A Notes
(based solely on the information contained in the Monthly Statement)
pursuant to this Indenture Supplement.
(c) On each Distribution Date, the Paying Agent will distribute to
each Class B Noteholder of record on the related Record Date (other than as
provided in Section 11.02 of the Indenture) such Class B Noteholder's pro
rata share of the amounts held by the Paying Agent that are allocated and
available on such Distribution Date to pay interest on the Class B Notes
(based solely on the information contained in the Monthly Statement)
pursuant to this Indenture Supplement.
(d) On each Distribution Date, the Paying Agent will distribute to
each Class B Noteholder of record on the related Record Date (other than as
provided in Section 11.02 of the Indenture) such Class B Noteholder's pro
rata share of the amounts held by the Paying Agent that are allocated and
available on such Distribution Date to pay principal of the Class B Notes
(based solely on the information contained in the Monthly Statement)
pursuant to this Indenture Supplement.
(e) The distributions to be made pursuant to this Section are subject
to the provisions of Sections 2.03(c) and 6.01 of the Transfer and
Servicing Agreements, Section 11.02 of the Indenture and Section 7.01 of
this Indenture Supplement.
(f) Except as provided in Section 11.02 of the Indenture with respect
to a final distribution, distributions to Series 2006-3 Noteholders
hereunder will be made by (i) check mailed to each Series 2006-3 Noteholder
(at such Noteholder's address as it appears in the Note Register), except
that with respect to any Series 2006-3 Notes registered in the name of the
nominee of a Clearing Agency, such distribution will be made in immediately
available funds and (ii) without presentation or surrender of any Series
2006-3 Note or the making of any notation thereon.
(g) The Indenture Trustee will have no duty to make any deposits or
distributions or any other payments under this Indenture Supplement unless
and until it has sufficient cash to make such payments and it has received
written instructions from the Servicer as to such deposits, distributions
and payments.
36
Section 5.03. REPORTS AND STATEMENTS TO SERIES 2006-3 NOTEHOLDERS.
(a) On each Distribution Date, the Paying Agent, on behalf of the
Indenture Trustee, will mail or deliver to each Series 2006-3 Noteholder a
statement substantially in the form of Exhibit B prepared by the Servicer;
provided, however, that, in lieu of the Paying Agent's mailing or
delivering such statement, the Indenture Trustee may make such statement
available to the Series 2006-3 Noteholders through the Indenture Trustee's
internet website, which initially is located at
xxxx://xxx.xxxxxxxx.xxx/xxx.
(b) No later than the second Business Day preceding each Distribution
Date, the Servicer will deliver to the Owner Trustee, the Indenture
Trustee, the Paying Agent and each Rating Agency (i) a statement
substantially in the form of Exhibit B prepared by the Servicer and (ii) a
certificate of an Authorized Officer of the Servicer substantially in the
form of Exhibit C; provided that the Servicer may amend the form of Exhibit
B and Exhibit C from time to time.
(c) A copy of each statement or certificate provided pursuant to
Section 5.03(a) or (b) may be obtained by any Series 2006-3 Noteholder by a
request in writing to the Servicer.
(d) On or before January 31 of each calendar year, beginning with
calendar year 2007, the Paying Agent, on behalf of the Indenture Trustee,
will furnish or cause to be furnished to each Person who at any time during
the preceding calendar year was a Series 2006-3 Noteholder, a statement
prepared by the Servicer containing the information that is required to be
contained in the statements to the Series 2006-3 Noteholders, as set forth
in Section 5.03(a), aggregated for the preceding calendar year, together
with other information as is required to be provided by an issuer of
indebtedness under the Code; provided, however, that, in lieu of the Paying
Agent's mailing or delivering such statement, the Indenture Trustee may
make such statement available to the Series 2006-3 Noteholders through the
Indenture Trustee's internet website, which initially is located at
xxxx://xxx.xxxxxxxx.xxx/xxx. Such obligation of the Servicer will be deemed
to have been satisfied to the extent that substantially comparable
information is provided by the Paying Agent pursuant to any requirements of
the Code as from time to time in effect.
ARTICLE VI
SERIES 2006-3 AMORTIZATION EVENTS
Section 6.01. SERIES 2006-3 AMORTIZATION EVENTS.
If any one of the following events occurs with respect to the Series 2006-3
Notes:
(i) failure by either Transferor (a) to make any payment or
deposit required by the terms of the related Transfer and Servicing
Agreement, the Indenture or this Indenture Supplement on or before the
date occurring five Business Days after the date such payment or
deposit is required to be made therein or herein or (b) to observe or
37
perform in any material respect any other covenants or agreements of
such Transferor set forth in the related Transfer and Servicing
Agreement, the Indenture or this Indenture Supplement that has an
Adverse Effect on the Series 2006-3 Noteholders and continues
unremedied for a period of 60 days after the date on which written
notice of such failure, requiring the same to be remedied, has been
given to such Transferor by the Indenture Trustee, or to such
Transferor and the Indenture Trustee by any Holder of the Series
2006-3 Notes, and, in either case, continues to affect materially and
adversely the interests of the Series 2006-3 Noteholders for the
designated period;
(ii) any representation or warranty made by either Transferor in
the related Transfer and Servicing Agreement, the Indenture or this
Indenture Supplement, or any information contained in a computer file
or other list required to be delivered by such Transferor pursuant to
the related Transfer and Servicing Agreement proves to have been
incorrect in any material respect when made or when delivered, which
continues to be incorrect in any material respect for a period of 60
days after the date on which written notice of such failure, requiring
the same to be remedied, has been given to such Transferor by the
Indenture Trustee, or to such Transferor and the Indenture Trustee by
any Holder of the Series 2006-3 Notes and as a result of which the
interests of the Series 2006-3 Noteholders are materially and
adversely affected and continue to be affected materially and
adversely for the designated period; provided, however, that a Series
2006-3 Amortization Event pursuant to this clause (ii) will not be
deemed to have occurred hereunder if such Transferor has accepted
reassignment of the related Receivable, or all of such Receivables, if
applicable, during such period in accordance with the provisions of
the related Transfer and Servicing Agreement;
(iii) any Servicer Default occurs that has an Adverse Effect on
the Series 2006-3 Noteholders;
(iv) the Note Principal Balance is not paid in full on the
Expected Final Payment Date;
(v) the average of the Monthly Principal Payment Rates for the
three preceding Collection Periods is less than 21%;
(vi) on any Determination Date, the Available Subordinated Amount
for the next succeeding Distribution Date is less than the Required
Subordinated Amount after giving effect to any distributions to be
made on such Distribution Date, and continues unremedied for a period
of five Business Days after such Distribution Date; provided that, for
the purpose of determining whether a Series 2006-3 Amortization Event
has occurred pursuant to this clause (vi), any reduction of the
Available Subordinated Amount resulting from reallocations of the
Available Transferor Collections to pay interest on the Series 2006-3
notes in the event LIBOR is equal to or greater than the prime rate
upon which interest on the receivables is calculated on the applicable
LIBOR Determination Date will be considered a Series 0000-0
Xxxxxxxxxxxx Event only if
38
LIBOR remains equal to or greater than such prime rate for the next 30
consecutive days following such LIBOR determination date;
(vii) the amounts on deposit in the Excess Funding Account exceed
30% of the sum of the adjusted invested amounts of all outstanding
Series (including Series 2006-3) for three consecutive Collection
Periods, after giving effect to any distributions to be made on each
related Distribution Date; or
(viii) the occurrence of an Event of Default with respect to
Series 2006-3 and an acceleration of the maturity of the Series 2006-3
Notes pursuant to Section 5.03 of the Indenture.
then, in the case of any event described in clauses (i) through (iii)
above, after any applicable grace period, either the Indenture Trustee or the
Holders of at least a majority of the Outstanding Amount of Series 2006-3 Notes
by notice then given in writing to the Transferors and the Servicer (and to the
Indenture Trustee if given by the Series 2006-3 Noteholders) may declare that an
amortization event with respect to the Series 2006-3 Notes (a "SERIES 2006-3
AMORTIZATION EVENT") has occurred as of the date of such notice, and, in the
case of any event described in clauses (iv) through (viii) above, a Series
2006-3 Amortization Event, will occur without any notice or other action on the
part of the Indenture Trustee or the Series 2006-3 Noteholders immediately upon
the occurrence of the event.
ARTICLE VII
REDEMPTION OF SERIES 2006-3 NOTES; SERIES FINAL MATURITY; FINAL DISTRIBUTIONS
Section 7.01. OPTIONAL REDEMPTION OF SERIES 2006-3 NOTES.
(a) On any day occurring on or after the date on which the Note
Principal Balance is reduced to 10% or less of the Initial Note Principal
Balance, the Transferors holding an aggregate Percentage Interest of at
least 51% will have the option to purchase the Series 2006-3 Noteholders'
Collateral and thereby cause a redemption of the Series 2006-3 Notes, at a
purchase price equal to (i) if such day is a Distribution Date, the
Reassignment Amount for such Distribution Date or (ii) if such day is not a
Distribution Date, the Reassignment Amount for the Distribution Date
following such day.
(b) Upon any such election, the Transferors will give the Servicer,
the Indenture Trustee, the Issuer and, if applicable, other holders of the
Transferor Interest at least 30 days prior written notice of the date on
which the Transferors intend to exercise such optional redemption as well
as the Reassignment Amount and the Indenture Trustee shall provide notice
to Holders of the Series 2006-3 Notes that it has received such notice from
the Transferors. No later than 11:00 a.m. (New York City time) on such day
the Transferors will deposit the Reassignment Amount into the Collection
Account in immediately available funds. Such redemption option is subject
to payment in full of the Reassignment Amount. Following such
39
deposit into the Collection Amount in accordance with the foregoing, the
Invested Amount of the Series 2006-3 Notes will be deemed reduced to zero
and the Series 2006-3 Noteholders will be deemed to have no further
interest in the Receivables or, if applicable, Interests in Other Floorplan
Assets. The Reassignment Amount will be distributed as set forth in Section
7.02.
Section 7.02. SERIES FINAL MATURITY.
(a) The amount to be paid by the Transferors with respect to Series
2006-3 in connection with a reassignment of the Noteholders' Collateral
pursuant to Section 2.03(c) or 6.01 of the Transfer and Servicing
Agreements will be the Reassignment Amount for the first Distribution Date
following the Collection Period in which the reassignment obligation arises
under the Transfer and Servicing Agreements. With respect to the
Reassignment Amount deposited into the Collection Account pursuant to
Section 2.03(c) or 6.01 of the Transfer and Servicing Agreements or
pursuant to Section 7.01 of this Indenture Supplement or the proceeds from
any Foreclosure Remedy pursuant to Section 5.05 of the Indenture, the
Indenture Trustee will, in accordance with the written direction of the
Servicer, no later than 11:00 a.m. (New York City time) on the related
Distribution Date, make deposits or distributions of the following amounts
(in the priority set forth below and, in each case after giving effect to
any deposits and distributions otherwise to be made on such date) in
immediately available funds:
(i) (A) the Class A Note Principal Balance on such Distribution
Date will be distributed to the Paying Agent for payment to the Class
A Noteholders and (B) an amount equal to the sum of (1) the Class A
Monthly Interest for such Distribution Date, (2) any Class A Monthly
Interest previously due but not paid to the Class A Noteholders on
prior Distribution Dates and (3) any Class A Additional Interest for
such Distribution Date, will be distributed to the Paying Agent for
payment to the Class A Noteholders on such Distribution Date; and
(ii) (A) the Class B Note Principal Balance on such Distribution
Date will be distributed to the Paying Agent for payment to the Class
B Noteholders and (B) an amount equal to the sum of (1) the Class B
Monthly Interest for such Distribution Date, (2) any Class B Monthly
Interest previously due but not paid to the Class B Noteholders on
prior Distribution Dates and (3) any Class B Additional Interest for
such Distribution Date, will be distributed to the Paying Agent for
payment to the Class B Noteholders on such Distribution Date.
(b) Notwithstanding anything to the contrary in this Indenture
Supplement, the Indenture or the Transfer and Servicing Agreements, (i) all
amounts distributed to the Paying Agent pursuant to Section 7.02(a) for
payment to the Series 2006-3 Noteholders will be deemed distributed in full
to the Series 2006-3 Noteholders on the date on which such funds are
distributed to the Paying Agent pursuant to this Section and will be deemed
to be a final distribution pursuant to Section 11.02 of the Indenture and
(ii) in the event that the amounts available for final distribution to the
Series 2006-3 Noteholders and to the Noteholders of any other Series on any
Distribution Date are less than the full amount required to be so
distributed,
40
the available amounts will be allocated to each Series based on the
respective amounts required to be distributed to each such Series
(including Series 2006-3) on such Distribution Date.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. RATIFICATION OF AGREEMENT.
As supplemented by this Indenture Supplement, the Indenture is in all
respects ratified and confirmed and the Indenture as so supplemented by this
Indenture Supplement is to be read, taken and construed as one and the same
instrument.
Section 8.02. FORM OF DELIVERY OF SERIES 2006-3 NOTES.
The Series 2006-3 Notes will be delivered as Registered Notes as provided
in Section 2.01 of the Indenture.
Section 8.03. COUNTERPARTS.
This Indenture Supplement may be executed in two or more counterparts, and
by different parties on separate counterparts, each of which will be an
original, but all of which will constitute one and the same instrument.
Section 8.04. GOVERNING LAW.
This Indenture Supplement and each Series 2006-3 Note are to be construed
in accordance with and governed by the laws of the State of New York without
regard to its conflicts of laws principles.
Section 8.05. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and are not intended to affect the construction hereof.
41
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this
Indenture Supplement to be duly executed by their respective duly authorized
officers, all as of the day and year first above written.
FORD CREDIT FLOORPLAN MASTER OWNER
TRUST A, as Issuer
By THE BANK OF NEW YORK, not in its
individual capacity, but solely as
Owner Trustee
By /s/ Xxxxxxx Xxx
-------------------------------------
Name: Xxxxxxx Xxx
Title: Assistant Vice President
JPMORGAN CHASE BANK, N.A., not in its
individual capacity, but solely as
Indenture Trustee, Securities
Intermediary and Bank
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
42
EXHIBIT A-1
FORM OF CLASS A NOTE
Unless this Note is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC) any
transfer, pledge or other use hereof for value or otherwise by or to any person
is wrongful inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
The holder of this Class A Note, by its acceptance hereof, and the owner of
a beneficial interest in this Class A Note, by its acceptance of such beneficial
interest, covenant and agree that (a) they will not at any time institute
against the Issuer or the Transferors, or join in instituting against the Issuer
or the Transferors, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Notes, the Indenture, the Indenture Supplement or any of the other related
transaction documents and (b) if any Transferor becomes a debtor or debtor in
possession in a case under any applicable United States federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation, rehabilitation
or other similar proceedings, any claim that the holders of the Notes of any
Series may have at any time against the Issuer's assets allocated in accordance
with the Indenture to any Series unrelated to such Notes, and any claim that the
holders of such Notes have at any time against the Transferors that they may
seek to enforce against such Issuer's assets allocated to any unrelated Series,
will be subordinate to the payment in full (including post-petition interest) of
the claims of the holders of any Notes of such unrelated Series and of the
holders of any other notes, bonds, contracts or other obligations relating to
such unrelated Series.
The holder of this Class A Note, by acceptance of this Class A Note, and
each holder of a beneficial interest therein, agree to treat the Class A Notes
as indebtedness of the Issuer for applicable United States federal, state and
local income and franchise tax purposes.
Any holder of this Class A Note, by its acceptance of this Class A Note,
will be deemed to have represented that either (a) it is not, and is not acting
on behalf of or investing the assets of, an employee benefit plan or retirement
arrangement that is subject to the fiduciary responsibility provisions of the
Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of
the Internal Revenue Code of 1986, as
A-1-1
amended, or (b) its acquisition and continued holding of this Class A Note will
be covered by a Department of Labor Prohibited Transaction Class Exemption.
A-1-2
Registered $______________(1)
No. R-__ CUSIP No. 34528Q AA 2
ISIN No. US34528QAA22
Common Code 025989775
FORD CREDIT FLOORPLAN MASTER OWNER TRUST A
SERIES 2006-3 FLOATING RATE ASSET BACKED NOTES, CLASS A
Ford Credit Floorplan Master Owner Trust A (herein referred to as the
"ISSUER"), a Delaware statutory trust governed by the Amended and Restated Trust
Agreement, dated as of August 1, 2001, for value received, hereby promises to
pay to ___________________________, or registered assigns, subject to the
following provisions, the principal sum of ________________________________
______________ DOLLARS, or such greater or lesser amount as determined in
accordance with the Indenture and the Indenture Supplement (each referred to
herein), on the June 2011 Distribution Date (the "SERIES 2006-3 FINAL MATURITY
DATE"), except as otherwise provided below or in the Indenture or the Indenture
Supplement. Beginning on July 17, 2006 and on each Distribution Date thereafter
until the principal amount of this Class A Note is paid in full, the Issuer will
pay interest on the unpaid principal amount of this Class A Note at an annual
rate equal to the sum of LIBOR and 0.18% (the "CLASS A NOTE INTEREST RATE"), as
determined pursuant to the Indenture Supplement. Interest on this Class A Note
will begin accruing from June 28, 2006 (the "CLOSING DATE") and will be payable
in arrears on each Distribution Date, computed on the basis of a 360-day year
and the actual number of days elapsed. The principal of this Class A Note will
be paid in the manner specified on the reverse hereof.
The principal of and interest on this Class A Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is made to the further provisions of this Class A Note set forth
on the reverse hereof, which will have the same effect as though fully set forth
on the face of this Class A Note.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Indenture Trustee, by manual signature, this Class A Note will not
be entitled to any benefit under the Indenture or the Indenture Supplement
referred to on the reverse hereof, or be valid for any purpose.
----------
(1) Denominations of $100,000 and integral multiples of $1,000 in excess
thereof.
A-1-3
IN WITNESS WHEREOF, the Issuer has caused this Class A Note to be duly
executed.
FORD CREDIT FLOORPLAN MASTER OWNER
TRUST A, as Issuer
By THE BANK OF NEW YORK, not in its
individual capacity, but solely as Owner
Trustee
By
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
Dated: ________, _____
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Notes described in the within-mentioned
Indenture.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity, but solely as
Indenture Trustee
By
------------------------------------
Authorized Officer
A-1-4
FORD CREDIT FLOORPLAN MASTER OWNER TRUST A
SERIES 2006-3 FLOATING RATE ASSET BACKED NOTES, CLASS A
Summary of Terms and Conditions
This Class A Note is one of a duly authorized issue of Notes of the Issuer,
designated as the Series 2006-3 Floating Rate Asset Backed Notes (the "NOTES"),
issued under the Indenture, dated as of August 1, 2001 (the "INDENTURE"),
between the Issuer and The Chase Manhattan Bank, (the predecessor entity to
JPMorgan Chase Bank, N.A.), as indenture trustee (the "INDENTURE TRUSTEE"), as
supplemented by the Series 0000-0 Xxxxxxxxx Supplement, dated as of June 1, 2006
(the "INDENTURE SUPPLEMENT" and, together with the Indenture, the "SERIES
AGREEMENT"), and representing the right to receive certain payments from the
Issuer. The Notes are subject to all of the terms of the Series Agreement. All
terms used in this Class A Note that are defined in the Series Agreement have
the meanings assigned to them in or pursuant to the Series Agreement. In the
event of any conflict or inconsistency between the Series Agreement and this
Class A Note, the Series Agreement controls.
The Class B Notes, in an initial aggregate principal amount of $83,800,000,
will also be issued under the Series Agreement. The rights of the holders of the
Class B Notes to receive payments on the Class B Notes are subordinate to the
rights of the holders of the Class A Notes to receive payments as specified in
the Series Agreement.
The Noteholder, by its acceptance of this Class A Note, agrees that it will
look solely to the property of the Issuer allocated to the payment of the Notes
for payment hereunder and under the Series Agreement and that the Indenture
Trustee is not liable to the Noteholders for any amount payable under the Notes
or the Series Agreement or, except as expressly provided in the Series
Agreement, subject to any liability under the Series Agreement.
This Class A Note does not purport to summarize the Series Agreement and
reference is made to the Series Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Indenture Trustee.
The Class A Note Initial Principal Balance is $1,416,200,000. The Class A
Note Principal Balance on any date of determination will be an amount equal to
(a) the Class A Note Initial Principal Balance, minus (b) the aggregate amount
of principal payments made to the Class A Noteholders on or before such date.
The Expected Final Payment Date is the June 2009 Distribution Date, but
principal with respect to the Class A Notes may be paid earlier or later under
certain circumstances described in the Series Agreement. If for one or more
months during the
A-1-5
Controlled Accumulation Period there are not sufficient funds to deposit the
Controlled Deposit Amount into the Principal Funding Account, then to the extent
that excess funds are not available on subsequent Distribution Dates with
respect to the Controlled Accumulation Period to make up for such shortfalls,
the final payment of principal of the Notes will occur later than the Expected
Final Payment Date. Payments of principal of the Notes will be payable in
accordance with the provisions of the Series Agreement.
Subject to the terms and conditions of the Series Agreement, the
Transferors may, from time to time, direct the Owner Trustee, on behalf of the
Issuer, to issue one or more new Series of notes.
On each Distribution Date, the Paying Agent will distribute to each Class A
Noteholder of record on the related Record Date (except for the final
distribution in respect of this Class A Note) such Class A Noteholder's pro rata
share of the amounts held by the Paying Agent that are allocated and available
on such Distribution Date to pay interest and principal on the Class A Notes
pursuant to the Indenture Supplement. Except as provided in the Series Agreement
with respect to a final distribution, distributions to the Noteholders will be
made by (a) check mailed to each Noteholder (at such Noteholder's address as it
appears in the Note Register), except that with respect to any Notes registered
in the name of the nominee of a Clearing Agency, such distribution will be made
in immediately available funds and (b) without presentation or surrender of any
Note or the making of any notation thereon. Final payment of this Class A Note
will be made only upon presentation and surrender of this Class A Note at the
office or agency specified in the notice of final distribution delivered by the
Indenture Trustee to the Noteholders in accordance with the Series Agreement.
On any day occurring on or after the date on which the outstanding
principal balance of the Notes is reduced to 10% or less of the initial
outstanding principal balance of the Notes, the Issuer will have the option to
redeem the Notes, at a purchase price equal to (a) if such day is a Distribution
Date, the Reassignment Amount for such Distribution Date or (b) if such day is
not a Distribution Date, the Reassignment Amount for the Distribution Date
following such day.
This Class A Note does not represent an obligation of, or an interest in,
the Transferors, Ford Motor Credit Company, Ford Motor Company or any Affiliate
of any of them and is not insured or guaranteed by any governmental agency or
instrumentality.
Each Noteholder, by accepting a Note, hereby covenants and agrees that it
will not at any time institute against the Issuer or the Transferors, or join in
instituting against the Issuer or the Transferors, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law.
A-1-6
Except as otherwise provided in the Indenture Supplement, the Class A Notes
are issuable only in minimum denominations of $100,000 and integral multiples of
$1,000. The transfer of this Class A Note will be registered in the Note
Register upon surrender of this Class A Note for registration of transfer at any
office or agency maintained by the Transfer Agent and Registrar accompanied by a
written instrument of transfer, in a form satisfactory to the Indenture Trustee
or the Transfer Agent and Registrar, duly executed by the Class A Noteholder or
such Class A Noteholder's attorney, and duly authorized in writing with such
signature guaranteed, and thereupon one or more new Class A Notes in any
authorized denominations of like aggregate principal amount will be issued to
the designated transferee or transferees.
As provided in the Series Agreement and subject to certain limitations
therein set forth, Class A Notes are exchangeable for new Class A Notes in any
authorized denominations and of like aggregate principal amount, upon surrender
of such Notes to be exchanged at the office or agency of the Transfer Agent and
Registrar. No service charge may be imposed for any such exchange but the Issuer
or 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 Issuer, the Transferors, the Indenture Trustee and any agent of the
Issuer, the Transferors or the Indenture Trustee will treat the person in whose
name this Class A Note is registered as the owner hereof for all purposes, and
none of the Issuer, the Transferors, the Indenture Trustee or any agent of the
Issuer, the Transferors or the Indenture Trustee will be affected by notice to
the contrary.
This Class A Note is to be construed in accordance with 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 are to be determined
in accordance with such laws.
A-1-7
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 note and all rights thereunder, and hereby irrevocably constitutes
and appoints _________________________________________________________,
attorney, to transfer said note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: (1)
------------------- -------------------------------------
Signature Guaranteed:
----------------------------------------
----------
(1) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
X-0-0
XXXXXXX X-0
FORM OF CLASS B NOTE
Unless this Note is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC) any
transfer, pledge or other use hereof for value or otherwise by or to any person
is wrongful inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
The holder of this Class B Note, by its acceptance hereof, and the owner of
a beneficial interest in this Class B Note, by its acceptance of such beneficial
interest, covenant and agree that (a) they will not at any time institute
against the Issuer or the Transferors, or join in instituting against the Issuer
or the Transferors, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Notes, the Indenture, the Indenture Supplement or any of the other related
transaction documents and (b) if any Transferor becomes a debtor or debtor in
possession in a case under any applicable United States federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
otherwise subject to any insolvency, reorganization, liquidation, rehabilitation
or other similar proceedings, any claim that the holders of the Notes of any
Series may have at any time against the Issuer's assets allocated in accordance
with the Indenture to any Series unrelated to such Notes, and any claim that the
holders of such Notes have at any time against the Transferors that they may
seek to enforce against such Issuer's assets allocated to any unrelated Series,
will be subordinate to the payment in full (including post-petition interest) of
the claims of the holders of any Notes of such unrelated Series and of the
holders of any other notes, bonds, contracts or other obligations relating to
such unrelated Series.
The holder of this Class B Note, by acceptance of this Class B Note, and
each holder of a beneficial interest therein, agree to treat the Class B Notes
as indebtedness of the Issuer for applicable United States federal, state and
local income and franchise tax purposes.
The rights of the holders of the Class B Notes to receive payments on the
Class B Notes are subordinate to the rights of the holders of the Class A Notes
to receive payments as specified in the Indenture and the Indenture Supplement.
Any holder of this Class B Note, by its acceptance of this Class B Note,
will be deemed to have represented that either (a) it is not, and is not acting
on behalf of or
A-2-1
investing the assets of, an employee benefit plan or retirement arrangement that
is subject to the fiduciary responsibility provisions of the Employee Retirement
Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue
Code of 1986, as amended, or (b) its acquisition and continued holding of this
Class B Note will be covered by a Department of Labor Prohibited Transaction
Class Exemption.
A-2-2
Registered $______________(1)
No. R-__ CUSIP No. 34528Q AB 0
ISIN No. US34528QAB05
Common Code 025989899
FORD CREDIT FLOORPLAN MASTER OWNER TRUST A
SERIES 2006-3 FLOATING RATE ASSET BACKED NOTES, CLASS B
Ford Credit Floorplan Master Owner Trust A (herein referred to as the
"ISSUER"), a Delaware statutory trust governed by the Amended and Restated Trust
Agreement, dated as of August 1, 2001, for value received, hereby promises to
pay to ___________________________, or registered assigns, subject to the
following provisions, the principal sum of ________________________________
______________ DOLLARS, or such greater or lesser amount as determined in
accordance with the Indenture and the Indenture Supplement (each referred to
herein), on the June 2011 Distribution Date (the "SERIES 2006-3 FINAL MATURITY
DATE"), except as otherwise provided below or in the Indenture or the Indenture
Supplement. Beginning on July 17, 2006 and on each Distribution Date thereafter
until the principal amount of this Class B Note is paid in full, the Issuer will
pay interest on the unpaid principal amount of this Class B Note at an annual
rate equal to the sum of LIBOR and 0.45% (the "CLASS B NOTE INTEREST RATE"), as
determined pursuant to the Indenture Supplement. Interest on this Class B Note
will begin accruing from June 28, 2006 (the "CLOSING DATE") and will be payable
in arrears on each Distribution Date, computed on the basis of a 360-day year
and the actual number of days elapsed. The principal of this Class B Note will
be paid in the manner specified on the reverse hereof.
The principal of and interest on this Class B Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is made to the further provisions of this Class B Note set forth
on the reverse hereof, which have the same effect as though fully set forth on
the face of this Class B Note.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Indenture Trustee, by manual signature, this Class B Note will not
be entitled to any benefit under the Indenture or the Indenture Supplement
referred to on the reverse hereof, or be valid for any purpose.
----------
(1) Denominations of $100,000 and integral multiples of $1,000 in excess
thereof.
A-2-3
IN WITNESS WHEREOF, the Issuer has caused this Class B Note to be duly
executed.
FORD CREDIT FLOORPLAN MASTER OWNER
TRUST A, as Issuer
By THE BANK OF NEW YORK, not in its
individual capacity, but solely as Owner
Trustee
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated: ,
-------- ----
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes described in the within-mentioned
Indenture.
JPMORGAN CHASE BANK, N.A, not in its
individual capacity, but solely as
Indenture Trustee
By
------------------------------------
Authorized Officer
A-2-4
FORD CREDIT FLOORPLAN MASTER OWNER TRUST A
SERIES 2006-3 FLOATING RATE ASSET BACKED NOTES, CLASS B
Summary of Terms and Conditions
This Class B Note is one of a duly authorized issue of Notes of the Issuer,
designated as the Series 2006-3 Floating Rate Asset Backed Notes (the "NOTES"),
issued under the Indenture, dated as of August 1, 2001 (the "INDENTURE"),
between the Issuer and The Chase Manhattan Bank, (the predecessor entity to
JPMorgan Chase Bank, N.A.), as indenture trustee (the "INDENTURE TRUSTEE"), as
supplemented by the Series 0000-0 Xxxxxxxxx Supplement, dated as of June 1, 2006
(the "INDENTURE SUPPLEMENT" and, together with the Indenture, the "SERIES
AGREEMENT"), and representing the right to receive certain payments from the
Issuer. The Notes are subject to all of the terms of the Series Agreement. All
terms used in this Class B Note that are defined in the Series Agreement have
the meanings assigned to them in or pursuant to the Series Agreement. In the
event of any conflict or inconsistency between the Series Agreement and this
Class B Note, the Series Agreement controls.
The Class A Notes, in an initial aggregate principal amount of
$1,416,200,000, will also be issued under the Series Agreement.
The Noteholder, by its acceptance of this Class B Note, agrees that it will
look solely to the property of the Issuer allocated to the payment of the Notes
for payment hereunder and under the Series Agreement and that the Indenture
Trustee is not liable to the Noteholders for any amount payable under the Notes
or the Series Agreement or, except as expressly provided in the Series
Agreement, subject to any liability under the Series Agreement.
This Class B Note does not purport to summarize the Series Agreement and
reference is made to the Series Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Indenture Trustee.
The Class B Note Initial Principal Balance is $83,800,000. The Class B Note
Principal Balance on any date of determination will be an amount equal to (a)
the Class B Note Initial Principal Balance, minus (b) the aggregate amount of
principal payments made to the Class B Noteholders on or before such date.
The Expected Final Payment Date is the June 2009 Distribution Date, but
principal with respect to the Class B Notes may be paid earlier or later under
certain circumstances described in the Series Agreement. If for one or more
months during the Controlled Accumulation Period there are not sufficient funds
to deposit the Controlled Deposit Amount into the Principal Funding Account,
then to the extent that excess funds
A-2-5
are not available on subsequent Distribution Dates with respect to the
Controlled Accumulation Period to make up for such shortfalls, the final payment
of principal of the Notes will occur later than the Expected Final Payment Date.
Payments of principal of the Notes will be payable in accordance with the
provisions of the Series Agreement.
Subject to the terms and conditions of the Series Agreement, the
Transferors may, from time to time, direct the Owner Trustee, on behalf of the
Issuer, to issue one or more new Series of notes.
On each Distribution Date, the Paying Agent will distribute to each Class B
Noteholder of record on the related Record Date (except for the final
distribution in respect of this Class B Note) such Class B Noteholder's pro rata
share of the amounts held by the Paying Agent that are allocated and available
on such Distribution Date to pay interest and principal on the Class B Notes
pursuant to the Indenture Supplement. Except as provided in the Series Agreement
with respect to a final distribution, distributions to the Noteholders will be
made by (a) check mailed to each Noteholder (at such Noteholder's address as it
appears in the Note Register), except that with respect to any Notes registered
in the name of the nominee of a Clearing Agency, such distribution will be made
in immediately available funds and (b) without presentation or surrender of any
Note or the making of any notation thereon. Final payment of this Class B Note
will be made only upon presentation and surrender of this Class B Note at the
office or agency specified in the notice of final distribution delivered by the
Indenture Trustee to the Noteholders in accordance with the Series Agreement.
On any day occurring on or after the date on which the outstanding
principal balance of the Notes is reduced to 10% or less of the initial
outstanding principal balance of the Notes, the Issuer will have the option to
redeem the Notes, at a purchase price equal to (a) if such day is a Distribution
Date, the Reassignment Amount for such Distribution Date or (b) if such day is
not a Distribution Date, the Reassignment Amount for the Distribution Date
following such day.
This Class B Note does not represent an obligation of, or an interest in,
the Transferors, Ford Motor Credit Company, Ford Motor Company or any Affiliate
of any of them and is not insured or guaranteed by any governmental agency or
instrumentality.
Each Noteholder, by accepting a Note, hereby covenants and agrees that it
will not at any time institute against the Issuer or the Transferors, or join in
instituting against the Issuer or the Transferors, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law.
Except as otherwise provided in the Indenture Supplement, the Class B Notes
are issuable only in minimum denominations of $100,000 and integral multiples of
$1,000. The transfer of this Class B Note will be registered in the Note
Register upon surrender of
A-2-6
this Class B Note for registration of transfer at any office or agency
maintained by the Transfer Agent and Registrar accompanied by a written
instrument of transfer, in a form satisfactory to the Indenture Trustee or the
Transfer Agent and Registrar, duly executed by the Class B Noteholder or such
Class B Noteholder's attorney, and duly authorized in writing with such
signature guaranteed, and thereupon one or more new Class B Notes in any
authorized denominations of like aggregate principal amount will be issued to
the designated transferee or transferees.
As provided in the Series Agreement and subject to certain limitations
therein set forth, Class B Notes are exchangeable for new Class B Notes in any
authorized denominations and of like aggregate principal amount, upon surrender
of such Notes to be exchanged at the office or agency of the Transfer Agent and
Registrar. No service charge may be imposed for any such exchange but the Issuer
or 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 Issuer, the Transferors, the Indenture Trustee and any agent of the
Issuer, the Transferors or the Indenture Trustee will treat the person in whose
name this Class B Note is registered as the owner hereof for all purposes, and
none of the Issuer, the Transferors, the Indenture Trustee or any agent of the
Issuer, the Transferors or the Indenture Trustee with be affected by notice to
the contrary.
This Class B Note is to be construed in accordance with 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 are to be determined
in accordance with such laws.
A-2-7
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 note and all rights thereunder, and hereby irrevocably constitutes
and appoints _________________________________________________________,
attorney, to transfer said note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: (1)
------------------- -------------------------------------
Signature Guaranteed:
----------------------------------------
----------
(1) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-2-8
EXHIBIT B
FORM OF MONTHLY STATEMENT
----------
FORD CREDIT FLOORPLAN MASTER OWNER TRUST A
SERIES 2006-3 FLOATING RATE ASSET BACKED NOTES
----------
Pursuant to the Indenture, dated as of August 1, 2001 (as amended and
supplemented, the "INDENTURE"), between Ford Credit Floorplan Master Owner Trust
A (the "ISSUER") and JPMorgan Chase Bank, N.A., as indenture trustee (the
"INDENTURE TRUSTEE"), as supplemented by the Series 0000-0 Xxxxxxxxx Supplement,
dated as of June 1, 2006 (as amended and supplemented, the "INDENTURE
SUPPLEMENT" and, together with the Indenture, the "SERIES AGREEMENT"), Ford
Motor Credit Company ("FORD CREDIT") as Servicer under the Transfer and
Servicing Agreements (as defined in the Series Agreement) is required to prepare
certain information each month regarding current distributions to the Series
2006-3 Noteholders and the performance of the Issuer during the previous month.
The information that is required to be prepared with respect to the
Distribution Date of __________, and with respect to the performance of the
Issuer during the month of __________ is set forth below.
Capitalized terms used in this Monthly Statement have their respective
meanings set forth in the Series Agreement.
[TO BE PROVIDED]
IN WITNESS WHEREOF, the undersigned has caused this Monthly Statement to be
duly executed by the its duly authorized officer as of [______________], 200[_].
FORD MOTOR CREDIT COMPANY,
as Servicer
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-1
EXHIBIT C
FORM OF MONTHLY ALLOCATION AND PAYMENT
INSTRUCTIONS TO INDENTURE TRUSTEE
----------
FORD CREDIT FLOORPLAN MASTER OWNER TRUST A
SERIES 2006-3 FLOATING RATE ASSET BACKED NOTES
----------
The undersigned, a duly authorized representative of Ford Motor Credit
Company ("FORD CREDIT"), as Servicer pursuant to (i) the Second Amended and
Restated Transfer and Servicing Agreement, dated as of September 1, 2005 (as
amended and supplemented, the "FCF CORP TRANSFER AND SERVICING AGREEMENT"),
among Ford Credit, Ford Credit Floorplan Master Owner Trust A (the "ISSUER") and
Ford Credit Floorplan Corporation and (ii) the Second Amended and Restated
Transfer and Servicing Agreement, dated as of September 1, 2005 (as amended and
supplemented, the "FCF LLC TRANSFER AND SERVICING AGREEMENT"), among Ford
Credit, the Issuer and Ford Credit Floorplan LLC, does hereby certify as
follows:
1. Capitalized terms used in this Certificate have their respective
meanings set forth in the FCF Corp Transfer and Servicing Agreement and the FCF
LLC Transfer and Servicing Agreement (collectively, the "TRANSFER AND SERVICING
AGREEMENTS") or the Indenture, dated as of August 1, 2001 (as amended and
supplemented, the "INDENTURE"), between the Issuer and JPMorgan Chase Bank,
N.A., as indenture trustee (the "INDENTURE TRUSTEE"), as supplemented by the
Series 0000-0 Xxxxxxxxx Supplement, dated as of June 1, 2006 (as amended and
supplemented, the "INDENTURE SUPPLEMENT" and, together with the Indenture, the
"SERIES AGREEMENT"), as applicable.
2. Ford Credit is the Servicer.
3. The undersigned is an Authorized Officer of the Servicer.
4. As of the date hereof, to the best knowledge of the undersigned, the
Servicer has performed in all material respects all its obligations under the
Transfer and Servicing Agreements and the Series Agreement through the
Collection Period preceding such Distribution Date [or, if there has been a
default in the performance of any such obligation, set forth in detail the (i)
nature of such default, (ii) the action taken by the Servicer, if any, to remedy
such default and (iii) the current status of each such default]; if applicable,
insert "None".
C-1
5. As of the date hereof, to the best knowledge of the undersigned, no
Amortization Event occurred on or before such date.
6. The Monthly Allocation and Payment Instructions are as follows: [TO BE
PROVIDED]
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be duly
executed by the its duly authorized officer as of [______________], 200[_].
FORD MOTOR CREDIT COMPANY,
as Servicer
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-2
