Exhibit 4.1
SERIES
2006-A SUPPLEMENT
Dated as of April 19, 2006
among
TEXTRON
FINANCIAL FLOORPLAN MASTER NOTE TRUST,
as Issuer
TEXTRON
FINANCIAL CORPORATION,
as Servicer
and
THE
BANK OF NEW YORK,
as Indenture Trustee
to
AMENDED AND RESTATED INDENTURE
Dated as of May 26, 2005
between
TEXTRON FINANCIAL FLOORPLAN MASTER NOTE TRUST,
as Issuer
and
THE BANK OF NEW YORK,
as Indenture Trustee
TEXTRON
FINANCIAL FLOORPLAN MASTER NOTE TRUST
SERIES 2006-A NOTES
ARTICLE I |
|
|
|
|
|
Definitions |
1 |
|
Section 1.01 |
Definitions |
1 |
|
|
|
ARTICLE II |
|
|
|
|
|
Creation of the Series 2006-A Notes |
10 |
|
|
|
|
Section 2.01 |
Designation |
10 |
Section 2.02 |
Form, Execution, Authentication and Delivery of Series 2006-A Notes |
10 |
Section 2.03 |
Regulation S Permanent Book-Entry Notes |
11 |
Section 2.04 |
Class C Notes; Transfer Restrictions |
11 |
|
|
|
ARTICLE III |
|
|
|
|
|
Servicing Fee |
|
12 |
|
|
|
Section 3.01 |
Servicing Compensation |
12 |
|
|
|
ARTICLE IV |
|
|
|
|
|
Rights of Series 2006-A Noteholders and Allocation and Application of Collections |
12 |
|
|
|
|
Section 4.01 |
Daily Allocations; Payments to Residual Interestholder |
12 |
Section 4.02 |
Monthly Interest |
13 |
Section 4.03 |
Determination of Monthly Principal |
14 |
Section 4.04 |
Establishment of Accounts |
15 |
Section 4.05 |
Application of Collections |
15 |
Section 4.06 |
Distributions to Series 2006-A Noteholders |
17 |
Section 4.07 |
Investor Charge-Offs |
17 |
Section 4.08 |
Excess Funding Account |
17 |
Section 4.09 |
Reallocated Principal Collections |
17 |
Section 4.10 |
Excess Non-Principal Collections |
18 |
Section 4.11 |
Excess Principal Collections |
18 |
Section 4.12 |
Reserve Account |
18 |
Section 4.13 |
Investment of Amounts on Deposit in Series Accounts |
19 |
Section 4.14 |
Controlled Accumulation Period |
19 |
Section 4.15 |
Determination of LIBOR |
19 |
|
|
|
ARTICLE V |
|
|
|
|
|
Distributions and Reports to Series 2006-A Noteholders |
20 |
|
|
|
|
Section 5.01 |
Distributions |
20 |
i
Section 5.02 |
Reports and Statements to Series 2006-A Noteholders |
20 |
|
|
|
ARTICLE VI |
|
|
|
|
|
Early Amortization Events |
21 |
|
|
|
|
Section 6.01 |
Additional Early Amortization Events |
21 |
Section 6.02 |
Recommencement of the Revolving Period |
22 |
|
|
|
ARTICLE VII |
|
|
|
|
|
Optional Purchase |
|
22 |
|
|
|
Section 7.01 |
Optional Purchase |
22 |
|
|
|
ARTICLE VIII |
|
|
|
|
|
Final Distributions |
|
23 |
|
|
|
Section 8.01 |
Acquisition of Notes Pursuant to Section 10.1 of the Indenture; Distributions pursuant to Section 7.01 of this Series Supplement or Section 5.4 of the Indenture |
23 |
Section 8.02 |
Series Termination |
23 |
|
|
|
ARTICLE IX |
|
|
|
|
|
Other Series Provisions |
24 |
|
|
|
|
Section 9.01 |
Additional Covenants |
24 |
Section 9.02 |
Tax Treatment of the Series 2006-A Notes |
24 |
Section 9.03 |
Supplemental Indentures |
24 |
Section 9.04 |
Waiver of Past Defaults |
24 |
Section 9.05 |
Restrictions on Transfer |
24 |
|
|
|
ARTICLE X |
|
|
|
|
|
Miscellaneous Provisions |
26 |
|
|
|
|
Section 10.01 |
Ratification of Agreement |
26 |
Section 10.02 |
Counterparts |
26 |
Section 10.03 |
GOVERNING LAW |
26 |
ii
EXHIBITS |
|
|
|
|
|
Exhibit A-1 |
Form of Class A Note |
|
Exhibit A-2 |
Form of Class B Note |
|
Exhibit A-3 |
Form of Class C Note |
|
Exhibit B |
[Reserved] |
|
Exhibit C |
Form of Regulation S Certificate |
|
Exhibit D |
Form of Regulation S Book-Entry Note to U.S. Restricted Book-Entry Note Transfer Certificate |
|
Exhibit E |
Form of U.S. Restricted Book-Entry Note to Regulation S Book-Entry Note Transfer Certificate |
|
iii
SERIES SUPPLEMENT, dated as of April 19, 2006 (as amended from time to time, this “Series Supplement”) between TEXTRON FINANCIAL FLOORPLAN MASTER NOTE TRUST (the “Issuer” or the “Trust”), TEXTRON FINANCIAL CORPORATION (the “Servicer”) and THE BANK OF NEW YORK, as Indenture Trustee (as indenture trustee and not in its individual capacity, the “Indenture Trustee”) to the Amended and Restated Indenture, dated as of the date hereof, between the Issuer and the Indenture Trustee (as amended, restated, supplemented or otherwise modified from time to time, the “Indenture”).
Section 2.1 of the Indenture provides that the Issuer may from time to time issue one or more new Series of Investor Interests. The Principal Terms of any new Series of Investor Interests are to be set forth in a Series Supplement. Pursuant to this Series Supplement, the Issuer and the Indenture Trustee shall create the Series 2006-A Notes and specify the Principal Terms thereof. The Servicer is acknowledging this Series Supplement to agree to the terms hereof applicable to the Servicer. The parties hereto acknowledge that the Issuer is not a separate entity for tax purposes and that the overall transaction is being structured so that the Class A Notes and Class B Notes, if held by Persons other than the Seller, will be characterized as debt for federal income tax purposes.
“Agreement” means the Amended and Restated Sale and Servicing Agreement, dated as of May 26, 2005, among Textron Financial Corporation, as Servicer, Textron Receivables Corporation III, as Seller, the Indenture Trustee and Textron Financial Floorplan Master Note Trust, as amended, restated, supplemented or otherwise modified from time to time.
“Allocable Defaulted Amount” means for any Collection Period, the product of (a) the average daily Series 2006-A Allocation Percentage for that Collection Period and (b) the Defaulted Amount for that Collection Period (after giving effect to any allocation of a portion of the Defaulted Amount to the Residual Interestholder pursuant to Section 4.2 of the Agreement).
“Allocable Miscellaneous Payments” means, with respect to any day, an amount equal to the product of (i) the Series 2006-A Allocation Percentage for such day and (ii) Miscellaneous Payments on such day.
“Allocable Non-Principal Collections” means, with respect to any day, an amount equal to the product of (i) the Series 2006-A Allocation Percentage for such day and (ii) the aggregate amount of Non-Principal Collections deposited in the Collection Account on such day (after giving effect to any allocation of a portion of Non-Principal Collections to the Residual Interestholder pursuant to Section 4.2 of the Agreement).
“Allocable Principal Collections” means, with respect to any day, an amount equal to the product of (i) the Series 2006-A Allocation Percentage for such day and (ii) the aggregate amount of Principal Collections deposited in the Collection Account on such day (after giving effect to any allocation of a portion of Principal Collections to the Residual Interestholder pursuant to Section 4.2 of the Agreement).
“Available Investor Non-Principal Collections” means, with respect to any Payment Date, the Investor Non-Principal Collections for the related Collection Period.
“Available Investor Principal Collections” means, with respect to any Payment Date, the sum of the Investor Principal Collections for the related Collection Period and the amount, if any, of Available Investor Non-Principal Collections and Investment Proceeds allocated to cover the Investor Defaulted Amount, Investor Dilution Amount or to reverse Investor Charge-Offs on such Payment Date.
“Available Reserve Account Amount” means, with respect to any Payment Date, an amount equal to the lesser of (a) the amount on deposit in the Reserve Account (exclusive of Investment Proceeds on such date and before giving effect to any deposit to, or withdrawal from, the Reserve Account made or to be made with respect to such date) and (b) the Required Reserve Account Amount, in each case on such Payment Date.
“Base Rate” means, with respect to any Determination Date, a fraction (expressed as a percentage (annualized)), the numerator of which is the sum of (a) the amount of interest on the Class A Notes and the Class B Notes due on the related Payment Date plus (b) the Investor Monthly Servicing Fee due on the related Payment Date, and the denominator of which is the Outstanding Amount of the Series 2006-A Notes as of the beginning of the related Collection Period.
“Calculation Agent” means the Indenture Trustee or any other Calculation Agent selected by the Residual Interestholder which is reasonably acceptable to the Indenture Trustee.
“Class A Additional Interest” has the meaning specified in Section 4.02(a).
“Class A Interest Rate” means, with respect to any Interest Period, LIBOR as determined on the LIBOR Determination Date plus 0.07% per annum; provided that with respect to the first Interest Period following the Closing Date, the Class A Interest Rate shall be 4.98000%.
“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” has the meaning specified in Section 2.01(a).
“Class A Noteholder” means any Holder of a Class A Note, and “Class A Noteholders” means the Holders of the Class A Notes.
“Class A Note Principal Balance” means, on any date of determination, an amount equal to (a) $574,300,000, minus (b) the aggregate amount of principal payments made to the Class A Noteholders on or prior to such date.
“Class B Additional Interest” has the meaning specified in Section 4.02(b).
“Class B Interest Rate” means, with respect to any Interest Period, LIBOR as determined on the LIBOR Determination Date plus 0.24% per annum; provided that with respect to the first Interest Period following the Closing Date, the Class B Interest Rate shall be 5.15000%.
“Class B Interest Shortfall” has the meaning specified in Section 4.02(b).
“Class B Monthly Interest” has the meaning specified in Section 4.02(b).
“Class B Note” has the meaning specified in Section 2.01(a).
2
“Class B Noteholder” means any Holder of a Class B Note, and “Class B Noteholders” means the Holders of the Class B Notes.
“Class B Note Principal Balance” means, on any date of determination, an amount equal to (a) $25,700,000, minus (b) the aggregate amount of principal payments made to the Class B Noteholders on or prior to such date.
“Class C Note” has the meaning specified in Section 2.01(a).
“Class C Noteholder” means any Holder of a Class C Note, and “Class C Noteholders” means the Holders of the Class C Notes.
“Class C Note Principal Balance” means, on any date of determination, an amount equal to (a) $41,700,000, minus (b) the aggregate amount of principal payments made to the Class C Noteholders on or prior to such date.
“Clearstream, Luxembourg” means Clearstream Banking, société anonyme.
“Closing Date” means April 19, 2006.
“Control Investors” means (i) Class A Noteholders and Class B Noteholders representing at least a majority of the Outstanding Amount of the Class A Notes and Class B Notes, voting together, and (ii) from and after the payment in full of the Class A Notes and the Class B Notes, Class C Noteholders representing at least a majority of the Outstanding Amount of the Class C Notes. For purposes of clause (i) above, any Class A Notes or Class B Notes owned or beneficially owned by the Seller or its Affiliates will be disregarded and deemed not Outstanding.
“Controlled Accumulation Date” means September 1, 2008, subject to adjustment pursuant to Section 4.14.
“Controlled Accumulation Period” means, unless an Early Amortization Event shall have occurred prior thereto, the period commencing at the opening of business on the Controlled Accumulation Date and ending on the earliest to occur of (a) the commencement of the Early Amortization Period, (b) the Series 2006-A Stated Maturity Date, and (c) the date on which the Outstanding Amount of the Series 2006-A Notes has been reduced to zero.
“Controlled Accumulation Period Length” is defined in Section 4.14.
“Distribution Compliance Period” has the meaning specified in Section 2.03.
“Early Amortization Event” means any Early Amortization Event specified in Section 5.17 of the Indenture, together with any additional Early Amortization Event specified in Section 6.01 of this Series Supplement.
“Early Amortization Period” means a period beginning on the date on which an Early Amortization Event specified in Section 5.17 of the Indenture or Section 6.01 of this Series Supplement shall have occurred with respect to the Series 2006-A Notes and terminating on the earliest of: (a) the payment in full of the outstanding principal amount of and all accrued and unpaid interest on the Series 2006-A Notes; and (b) the Series 2006-A Stated Maturity Date. Notwithstanding anything to the contrary in this Series Supplement, an Early Amortization Period that commences before the scheduled end of the
3
Revolving Period shall be terminated, and the Revolving Period may recommence, if the Rating Agency Condition is satisfied and the Control Investors consent thereto.
“Enhancement Trigger Event” means the occurrence of any of the following event(s): (a)(i) on any Determination Date, the average of the Monthly Payment Rates for the three preceding Collection Periods is less than 14% for the Determination Dates falling in February through May, less than 16% for the Determination Date falling in June, less than 18% for the Determination Dates falling in July through October or less than 16% for the Determination Dates falling in November through January or (ii) on any Determination Date, the Portfolio Yield is less than the sum of the Base Rate plus 1.00% or (b) on any Determination Date, the average of the Monthly Payment Rates for the three preceding Collection Periods is less than 13% for the Determination Dates falling in February through May, less than 15% for the Determination Date falling in June, less than 17% for the Determination Dates falling in July through October or less than 15% for the Determination Dates falling in November through January.
“Enhancement Trigger Period” means a period beginning on the date on which an Enhancement Trigger Event shall have occurred and terminating on the date on which no Enhancement Trigger Event shall be continuing; provided that if the Early Amortization Period has commenced during the continuance of an Enhancement Trigger Period, such Enhancement Trigger Period shall be deemed to be continuing during the Early Amortization Period.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System.
“Expected Principal Payment Date” means the Payment Date in April 2009.
“Final Payment Date” means the earlier of (i) the Series 2006-A Stated Maturity Date and (ii) the first Payment Date on which, after giving effect to all payments to be made on that Payment Date, the outstanding principal amount of the Series 2006-A Notes will be paid in full.
“Fixed Allocation Percentage” means, with respect to any day, the percentage equivalent (which percentage shall never exceed 100%) of a fraction, the numerator of which is the Invested Amount as of the last day of the Revolving Period, and the denominator of which is the product of the Series 2006-A Allocation Percentage for the day for which the Fixed Allocation Percentage is being calculated times the greater of (A) the sum of (x) the Net Pool Balance as of the most recent Reset Date and (y) the Series 2006-A Excess Funding Amount at the end of such most recent Reset Date and (B) the sum of the numerators used to calculate the allocation percentage for all outstanding Series of Investor Interests as of the date of determination.
“Floating Allocation Percentage” means, with respect to any day, the percentage equivalent (which percentage shall never exceed 100%) of a fraction, the numerator of which is the Invested Amount as of the most recent Reset Date and the denominator of which is the product of the Series 2006-A Allocation Percentage for the day for which the Floating Allocation Percentage is being calculated times the greater of (A) the sum of (x) the Net Pool Balance as of the most recent Reset Date and (y) the Excess Funding Amount at the end of such most recent Reset Date and (B) the sum of the numerators used to calculate the allocation percentage for all outstanding Series of Investor Interests as of the date of determination.
“Group One” means Series 2005-A, Series 2006-A and each other outstanding Series hereafter specified in the related Series Supplement to be included in Group One.
“Indenture” has the meaning set forth in the recitals to this Series Supplement.
4
“Indenture Trustee” has the meaning set forth in the recitals to this Series Supplement.
“Initial Invested Amount” means, with respect to the Series 2006-A Notes, $641,700,000, $574,300,000 of which is the Initial Invested Amount of the Class A Notes, $25,700,000 of which is the Initial Invested Amount of the Class B Notes and $41,700,000 of which is the Initial Invested Amount of the Class C Notes.
“Initial Payment Date” means May 15, 2006.
“Initial Purchasers” means, collectively, Citigroup Global Markets Inc. and Merrill Lynch, Pierce Fenner & Smith Incorporated.
“Interest Period” means, for any Payment Date, the period from and including the Payment Date preceding such Payment Date to but excluding such Payment Date (or in the case of the Initial Payment Date, the period from and including the Closing Date to but excluding the Initial Payment Date).
“Interest Rate” means, with respect to the Class A Notes, the Class A Interest Rate and with respect to the Class B Notes, the Class B Interest Rate.
“Invested Amount” means, when used with respect to any date, an amount equal to (a) the Initial Invested Amount of the Series 2006-A Notes, minus (b) the amount, without duplication, of principal payments made to Series 2006-A Noteholders prior to such date, minus (c) the excess, if any, of the aggregate amount of Investor Charge-Offs prior to such date over Investor Charge-Offs reimbursed pursuant to Section 4.05 prior to such date, provided that the Invested Amount shall in no event be less than zero.
“Investment Proceeds” means, with respect to any Determination Date and any Payment Date, an amount equal to all interest and other investment earnings (net of losses and investment expenses) on funds held in the Principal Account and the Reserve Account and the Series 2006-A Allocation Percentage of the interest and other investment earnings (net of losses and investment expenses) on funds held in the Collection Account and the Excess Funding Account credited to the Collection Account pursuant to Section 4.1 of the Agreement.
“Investor Charge-Offs” has the meaning specified in Section 4.07.
“Investor Defaulted Amount” means, with respect to any Payment Date, an amount equal to the product of (a) the Allocable Defaulted Amount for the related Collection Period and (b) the average daily Floating Allocation Percentage for the related Collection Period.
“Investor Dilution Amount” means, with respect to any Payment Date, an amount equal to the average daily Series 2006-A Allocation Percentage for the related Collection Period of any Dilution Amount.
“Investor Monthly Servicing Fee” has the meaning specified in Section 3.01.
“Investor Non-Principal Collections” means, with respect to any Deposit Date, an amount equal to the sum of (a) the product of the Floating Allocation Percentage and Allocable Non-Principal Collections for such day plus (b) any Allocable Miscellaneous Payments that are treated as Investor Non-Principal Collections pursuant to Section 4.01(e).
5
“Investor Principal Collections” means, with respect to any Deposit Date, (i) falling in the Revolving Period, the sum of (a) the product of the Floating Allocation Percentage and Allocable Principal Collections for such day plus (b) any Allocable Miscellaneous Payments that are treated as Investor Principal Collections for such day and (ii) occurring after the last day of the Revolving Period, the sum of (a) the product of the Fixed Allocation Percentage and Allocable Principal Collections for such day plus (b) any Allocable Miscellaneous Payments that are treated as Investor Principal Collections for such day.
“Issuer” has the meaning set forth in the recitals to this Series Supplement.
“LIBOR” means, for any Interest Period, the London interbank offered rate for one-month United States dollar deposits determined by The Bank of New York, as Paying Agent, for each Interest Period in accordance with the provisions of Section 4.15.
“LIBOR Determination Date” means (i) with respect to the first Interest Period, the second London Business Day prior to the Closing Date, and (ii) with respect to any Interest Period thereafter, the second London Business Day prior to the commencement of such Interest Period.
“London Business Day” means any day on which dealings in deposits in United States dollars are transacted in the London interbank market.
“Monthly Payment Rate” means, for any Collection Period, the percentage derived from dividing (a) Principal Collections for such Collection Period minus Principal Collections allocated to the Residual Interestholder pursuant to Sections 4.2(f), (g) and (h) of the Agreement by (b) the beginning Net Pool Balance for such Collection Period.
“Monthly Principal” has the meaning specified in Section 4.03.
“Monthly Principal Reallocation Amount” means, for any Collection Period, an amount equal to the sum of:
(A) the lesser of (i) the excess of (x) the amount needed to make the payments described in Sections 4.05(a)(i) and (ii) over (y) the amount of Non-Principal Collections, Investment Proceeds and amounts withdrawn from the Reserve Account that are available to cover the payments described in Sections 4.05(a)(i) and (ii), and (ii) the excess, if any, of (x) $67,400,000 over (y) the amount of unreimbursed Investor Charge-Offs after giving effect to Investor Charge-Offs for the related Collection Period; and
(B) the lesser of (i) the excess of (x) the amount needed to make the payments described in Section 4.05(a)(iii) over (y) the amount of Non-Principal Collections, Investment Proceeds and amounts withdrawn from the Reserve Account that are available to cover the payments described in Section 4.05(a)(iii) and (ii) the excess, if any, of (x) $41,700,000 over (y) the amount of unreimbursed Investor Charge-Offs after giving effect to Investor Charge-Offs for the related Collection Period and after giving effect to the reallocation of Principal Collections to make the payments described in Sections 4.05(a)(i) and (ii) in respect of the then-current Payment Date.
“Monthly Servicing Fee” has the meaning specified in Section 3.2 of the Agreement.
“Note Purchase Agreement” means the Purchase Agreement, dated as of April 11, 2006, by and among the Issuer, TFC and the Initial Purchasers.
6
“Offering Memorandum” means the confidential Offering Memorandum dated April 11, 2006 (including any exhibits, amendments or supplements thereto) relating to the Series 2006-A Notes.
“Payment Date Statement” has the meaning specified in Section 5.02.
“Portfolio Yield” means, with respect to any Determination Date, a fraction (expressed as a percentage (annualized)), the numerator of which is an amount equal to Allocable Non-Principal Collections for the related Collection Period, and the denominator of which is the Invested Amount less amounts on deposit in the Principal Account and the Series 2006-A Excess Funding Amount, in each case as of the beginning of the related Collection Period.
“Principal Account” means the account designated as such, established and maintained pursuant to Section 4.04.
“Qualified Institutional Buyer” has the meaning ascribed to that term in Rule 144A.
“Reallocated Principal Collections” means, for any Payment Date, Investor Principal Collections applied in accordance with Section 4.09 in an amount not to exceed the Monthly Principal Reallocation Amount for the related Collection Period.
“Record Date” means, with respect to any Payment Date, the close of business on the last day of the Collection Period preceding such Payment Date.
“Redemption Price” means, with respect to any Payment Date, the sum of (a) the aggregate Outstanding Amount of the Series 2006-A Notes to be redeemed on the Determination Date preceding the Payment Date on which such redemption is to be made, (b) accrued and unpaid interest on the unpaid balance of the Series 2006-A Notes (calculated on the basis of the Outstanding Amount of each Class of the Series 2006-A Notes at the Interest Rate as in effect during the applicable Interest Periods through the day preceding such Payment Date), (c) without duplication with respect to any amounts due under clause (b) of this definition, any Class A Additional Interest with respect to the Class A Notes to be repurchased and any Class B Additional Interest with respect to the Class B Notes to be repurchased, (d) the aggregate amount of unreimbursed Investor Charge-Offs and Investor Defaulted Amounts with respect to the Series 2006-A Notes to be redeemed and (e) accrued and unpaid Investor Monthly Servicing Fees.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Book-Entry Note” means, collectively, the Regulation S Permanent Book-Entry Note and the Regulation S Temporary Book-Entry Note.
“Regulation S Permanent Book-Entry Note” has the meaning specified in Section 2.03.
“Regulation S Temporary Book-Entry Note” has the meaning specified in Section 2.02(e).
“Required Reserve Account Amount” means, for any day, an amount equal to (a) the product of (i) the Required Reserve Account Percentage and (ii) the Initial Invested Amount or (b) any other amount designated by the Seller; provided, however, that if such designation is of a lesser amount, the Seller shall (i) provide the Indenture Trustee with evidence that the Rating Agency Condition shall have been satisfied and (ii) deliver to the Indenture Trustee a certificate of an Authorized Officer to the effect that, based on the facts known to such officer at such time, in the reasonable belief of the Seller, such designation will not cause an Early Amortization Event to occur with respect to Series 2006-A.
7
“Required Reserve Account Percentage” means (i) 0% so long as an Enhancement Trigger Period has not occurred and (ii) if an Enhancement Trigger Event has occurred, the Required Reserve Account Percentage shall be the aggregate of (i) 0.75%, if an Enhancement Trigger Event under clause (a)(i) of the definition thereof has occurred, (ii) 1.00%, if an Enhancement Trigger Event under clause (a)(ii) of the definition thereof has occurred, plus (iii) 1.00%, if an Enhancement Trigger Event under clause (b) of the definition thereof has occurred.
“Required Residual Percentage” means, with respect to Series 2006-A, 103%.
“Reserve Account” means the account designated as such, established and maintained pursuant to Section 4.04.
“Reserve Account Deficiency” means the excess, if any, of the Required Reserve Account Amount over the Available Reserve Account Amount.
“Reset Date” means (a) the last day of a Collection Period, (b) any Addition Date, (c) any date of issuance of an additional Series of Investor Interests (including the Closing Date) or any date of issuance of additional Investor Interests of any outstanding Series occurs or (d) any Removal Commencement Date.
“Residual Interestholder” means the holder of the Residual Interest.
“Residual Interestholder’s Percentage” means, with respect to any day, a percentage (which percentage shall never be less than 0% nor more than 100%) equal to 100% minus (a) the Floating Allocation Percentage on such day, when used with respect to Allocable Non-Principal Collections and Allocable Defaulted Amounts and with respect to Allocable Principal Collections during the Revolving Period, and (b) the Fixed Allocation Percentage on such day, when used with respect to Allocable Principal Collections during the Controlled Accumulation Period or an Early Amortization Period.
“Revolving Period” means the period beginning on the Closing Date and ending at the close of business on the day immediately preceding the earlier of the day the Controlled Accumulation Period commences or the day the Early Amortization Period commences.
“Rule 144A” means Rule 144A under the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended.
“Series 2005-A” means the Series 2005-A Notes, the Principal Terms of which are specified in the Series Supplement dated as of May 26, 2005, by and among the Issuer, the Servicer and the Indenture Trustee.
“Series 2006-A” means the Series 2006-A Notes, the Principal Terms of which are specified in this Series Supplement.
“Series 2006-A Allocation Percentage” means the Series Allocation Percentage with respect to Series 2006-A.
“Series 2006-A Excess Funding Amount” means, with respect to the Series 2006-A Notes, for any day, the product of (a) the Series 2006-A Allocation Percentage on such day and (b) the amount on deposit in the Excess Funding Account (other than Investment Proceeds) on such day.
8
“Series 2006-A Excess Non-Principal Collections” means Excess Non-Principal Collections allocated from other Series in Group One to Series 2006-A pursuant to Section 4.3 of the Sale and Servicing Agreement.
“Series 2006-A Noteholder” means the Person in whose name a Series 2006-A Note is registered in the Note Register.
“Series 2006-A Notes” has the meaning specified in Section 2.01(a).
“Series 2006-A Non-Principal Shortfall” means, with respect to any Payment Date, an amount equal to the excess, if any, of (a) the full amount required to be paid, without duplication, pursuant to Sections 4.05(a)(i) through (vii) on such Payment Date over (b) the Available Investor Non-Principal Collections (excluding any portion thereof attributable to Excess Non-Principal Collections) and Investment Proceeds with respect to such Payment Date.
“Series 2006-A Principal Shortfall” means, with respect to any Payment Date prior to the Expected Principal Payment Date, an amount equal to the excess, if any, of (a) the full amount required to be paid, without duplication, pursuant to Sections 4.05(a)(i) through (iii) on such Payment Date over (b) the Available Investor Principal Collections with respect to such Payment Date (excluding any portion thereof attributable to Reallocated Principal Collections) and, with respect to any Payment Date thereafter, the Outstanding Amount of the Series 2006-A Notes.
“Series 2006-A Stated Maturity Date” means the Payment Date in April 2011.
“Series Supplement” has the meaning set forth in the recitals to this Series Supplement.
“Servicer” has the meaning set forth in the recitals to this Series Supplement.
“Termination Date” means, with respect to Series 2006-A, the day after the Payment Date falling in the 2nd calendar month after the Series 2006-A Stated Maturity Date.
“Transferable Notes” has the meaning specified in Section 9.05.
“Trust” has the meaning set forth in the recitals to this Series Supplement.
“U.S. Person” has the meaning specified in Regulation S.
“U.S. Resale Restriction Termination Date” means (i) the date which is two years (or such shorter period of time as permitted by Rule 144(k) under the Securities Act) after the later of the date of original issue of the Class A Notes and Class B Notes and the last date on which the Issuer or any affiliate of the Seller was the owner of such Class A Notes or Class B Notes (or any predecessor thereto) or (ii) such later date, if any, as may be required by any subsequent change in applicable law.
“U.S. Restricted Book-Entry Note” has the meaning specified in Section 2.02(d).
9
10
11
Transfer or purported Transfer of a Class C Note in violation of the preceding sentence shall be void ab initio and of no effect.
12
(d) Principal Collections — Early Amortization Period. On each Deposit Date during the Early Amortization Period, the Servicer shall cause an amount equal to the Investor Principal Collections for such Deposit Date to be allocated to Series 2006-A for application as provided in Section 4.05(c) and first, an amount equal to the Reallocated Principal Collections for the related Payment Date shall be made available on that Payment Date for application in accordance with Section 4.09, second, if any other Principal Sharing Series is outstanding and in its accumulation period or amortization period, shall be retained in the Principal Account for application, to the extent necessary, as Excess Principal Collections to other Principal Sharing Series on the related Payment Date, third, shall be deposited in the Excess Funding Account to the extent necessary so that the Net Pool Balance is not less than the Required Net Pool Balance, and fourth, shall be released to the Residual Interestholder.
The withdrawals to be made from the Collection Account pursuant to this Section 4.01 do not apply to deposits into the Collection Account that do not represent Collections, including payment of the Redemption Price for the Series 2006-A Notes pursuant to Section 10.1(b) of the Indenture and Section 7.01 of this Series Supplement and proceeds from the sale, disposition or liquidation of Conveyed Receivables pursuant to Section 5.4 of the Indenture.
13
14
during the Controlled Accumulation Period and the Early Amortization Period, Investor Principal Collections shall be deposited into the Collection Account on a daily basis in accordance with and subject to the provisions of Section 4.2 of the Agreement.
(i) first, an amount equal to the Investor Monthly Servicing Fee for such Payment Date (to the extent not previously paid), plus any unpaid Servicer Advances and accrued and unpaid interest thereon, shall be distributed to the Servicer;
(ii) second, an amount equal to
Class A Monthly Interest for such Payment Date, plus the amount of
any Class A Monthly Interest previously due but not distributed to the
Class A Noteholders on a prior Payment Date, plus the amount of any
Class A Additional Interest for such Payment Date and any Class A
Additional Interest previously due but not distributed to the Class A
Noteholders on a prior Payment Date, shall be paid to the Class A Noteholders,
pro rata;
(iii) third, an amount equal to Class B Monthly Interest for such Payment Date, plus the amount of any Class B Monthly Interest previously due but not distributed to the Class B Noteholders on a prior Payment Date, plus the amount of any Class B Additional Interest for such Payment Date and any Class B Additional Interest previously due but not distributed to the Class B Noteholders on a prior Payment Date, shall be paid to the Class B Noteholders, pro rata;
(iv) fourth, an amount equal to the Investor Defaulted Amount and the Investor Dilution Amount, if any, for such Payment Date shall be treated as a portion of Available Investor Principal Collections for such day and, during the Controlled Accumulation Period or the Early Amortization Period, shall be deposited into the Principal Account;
(v) fifth, an amount equal to the aggregate amount of Investor Charge-Offs that have not been previously reimbursed as provided in Section 4.07 and this Section 4.05(a)(v) shall be treated as Available Investor Principal Collections with respect to such day and shall increase the Invested Amount and, during the Controlled Accumulation Period or the Early Amortization Period, shall be deposited into the Principal Account;
(vi) sixth, an amount, if any, equal to the amount required to be deposited in the Reserve Account pursuant to Section 4.12 shall be deposited into the Reserve Account during the Revolving Period and the Controlled Accumulation Period;
15
(vii) seventh, to deposit into the Principal Account, during the Controlled Accumulation Period, any deficiency in the amount otherwise required to be deposited into the Principal Account at that time;
(viii) eighth, if the Early Amortization Period has not occurred and is not continuing, the balance, if any, will constitute a portion of Excess Non-Principal Collections for such Payment Date and will be applied in accordance with Section 4.3 of the Agreement; and
(ix) ninth, during the Early Amortization Period, the remaining balance, if any, will be used to make principal payments first, to the Class A Notes until the Class A Note Principal Balance is paid in full, second, to the Class B Notes until the Class B Note Principal Balance is paid in full, and, third, to the Class C Notes until the Class C Note Principal Balance is paid in full.
On each Payment Date, to the extent that there is a shortfall (a “Payment Date Shortfall”) in the amounts to be paid or deposited pursuant to clauses(a)(ii) and (a)(iii) of this Section 4.05, the Paying Agent on behalf of the Issuer, shall withdraw from the Collection Account, from any Servicer Advance on deposit therein, an amount equal to the lesser of (i) the Payment Date Shortfall for such Payment Date and (ii) the product of (x) such Servicer Advance and (y) the Floating Allocation Percentage for the previous Collection Period, and apply such withdrawn amount to make the payments and deposits contemplated by such clauses of this Section 4.05.
(i) during the Controlled Accumulation Period, an amount equal to the least of (a) the Available Investor Principal Collections on deposit in the Collection Account for the related Collection Period and (b) the Monthly Principal for each Payment Date shall be deposited into the Principal Account on such Payment Date;
(ii) during the Early Amortization Period, an amount equal to the least of (a) the Available Investor Principal Collections on deposit in the Collection Account for the related Collection Period and (b) the Monthly Principal for such Payment Date shall be distributed on each Payment Date and on the related Payment Date, first, to the Class A Noteholders on the related Payment Date until the Class A Note Principal Balance has been paid in full; second, to the Class B Noteholders until the Class B Note Principal Balance has been paid in full; and third, to the Class C Noteholders until the Class C Note Principal Balance has been paid in full; and
(iii) in the case of each of the Controlled Accumulation Period and the Early Amortization Period, the balance of such Available Investor Principal Collections remaining after application in accordance with clauses (i) and (ii) above shall be treated as Excess Principal Collections and applied in accordance with Section 4.3 of the Agreement.
16
17
18
19
20
(i) on any Determination Date, the average of the Monthly Payment Rates for the three preceding Collection Periods is less than 12% for the Determination Dates falling in February through May, less than 14% for the Determination Date falling in June, less than 16% for the Determination Dates falling in July through October, or less than 14% for the Determination Dates falling in November through January (or a lower percentage if the Rating Agency Condition has been satisfied with respect to that lower percentage);
(ii) any Servicing Default occurs;
(iii) the occurrence of an Event of Default with respect to the Series 2006-A Notes and the declaration that the Series 2006-A Notes are due and payable pursuant to Section 5.2 of the Indenture;
(iv) on the Expected Principal Payment Date, the Series 2006-A Notes are not paid in full;
(v) the sum of all investments (other than Receivables) held in Trust Accounts of the Issuer and, without duplication, amounts held in the Excess Funding Account, represents more than fifty percent (50%) of the dollar amount of the assets of the Issuer on each of six (6) or more consecutive monthly Determination Dates, after giving effect to all payments made or to be made on the Payment Dates relating to those Determination Dates;
(vi) on any Payment Date, there exists (a) Investor Charge-Offs or (b) a withdrawal from the Reserve Account, in each case relating to a shortfall in Non-Principal Collections on a prior Payment Date that has not been reimbursed as of such Payment Date after application of all Collections on such date or (ii) there exists (a) Investor Charge-Offs or (b) a withdrawal from the Reserve Account, in an aggregate amount in excess of 0.25% of the Initial Invested Amount, in each case relating to a shortfall in Non-Principal Collections on such Payment Date;
21
(vii) on any Payment Date after the occurrence of an Enhancement Trigger Event under clause (b) of the definition thereof, the Seller has not deposited an amount into the Reserve Account equal to 1.0% of the Initial Invested Amount; or
(viii) on any Payment Date, the amount on deposit in the Reserve Account is less than the Required Reserve Account Amount for such Payment Date after application of all Collections on such date and for the two consecutive Payment Dates immediately preceding such Payment Date.
22
Section 8.02 Series Termination. On the Series 2006-A Stated Maturity Date, if the Invested Amount is greater than zero (after giving effect to deposits and distributions otherwise to be made on such Series 2006-A Stated Maturity Date), the Indenture Trustee will sell or cause to be sold on such Series 2006-A Stated Maturity Date in accordance with the Indenture an amount of Principal Receivables (or interests therein) equal to 110% of the Invested Amount on such Series 2006-A Stated Maturity Date
23
(after giving effect to such deposits and distributions); provided, however, that in no event shall the amount of Principal Receivables sold exceed the product of the Series 2006-A Allocation Percentage (for the Collection Period in which such Payment Date occurs) and Principal Receivables on such Payment Date. The proceeds from such sale shall be paid first, to the Class A Noteholders until the outstanding principal amount and unpaid interest on the Class A Notes is paid in full; second, to the Class B Noteholders until the outstanding principal amount and unpaid interest on the Class B Notes is paid in full; third, to the Class C Noteholders until the outstanding principal amount and unpaid interest on the Class C Notes is paid in full; and then any remaining proceeds shall be allocated and distributed as Principal Collections in accordance with the terms of Section 4.06. On and after the Termination Date, no distributions will be made pursuant to this Supplement except as otherwise expressly provided for in the Indenture.
24
25
[signature pages follow]
26
IN WITNESS WHEREOF, the Issuer, the Servicer and the Indenture Trustee have caused this Series Supplement to be duly executed by their respective officers as of the day and year first above written.
|
TEXTRON FINANCIAL FLOORPLAN MASTER NOTE TRUST, as Issuer |
|
|
|
|
|
By: |
SUNTRUST DELAWARE TRUST |
|
|
|
|
|
|
|
By: |
/s/ Jack Ellerin |
|
|
Name: Jack Ellerin |
|
|
Title: Trust Officer |
|
|
|
|
|
|
|
TEXTRON FINANCIAL CORPORATION, as |
|
|
|
Servicer |
|
|
|
|
|
|
|
By: |
/s/ Eric J. Karlson |
|
|
Name: Eric J. Karlson |
|
|
Title: Managing Director Capital Markets |
|
|
|
|
|
|
|
THE BANK OF NEW YORK, not in its individual |
|
|
|
capacity but solely as Indenture Trustee |
|
|
|
|
|
|
|
By: |
/s/ Ryan Bittner |
|
|
Name: Ryan Bittner |
EXHIBIT A-1
FORM
OF CLASS A SERIES 2006-A FLOATING RATE TERM NOTE
[REGULATION S TEMPORARY BOOK-ENTRY NOTE]
[REGULATION S PERMANENT BOOK-ENTRY NOTE]
[U.S. RESTRICTED BOOK-ENTRY 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 UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS NOTE 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.
[Insert the following for U.S. Restricted Book-Entry Note]
[THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY BENEFICIAL INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY OTHER APPLICABLE JURISDICTION. BY ITS ACCEPTANCE HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS EITHER A “QUALIFIED INSTITUTIONAL BUYER” (A “QUALIFIED INSTITUTIONAL BUYER”) (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)), (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE OR ANY INTEREST OR PARTICIPATION HEREIN, PRIOR TO THE DATE WHICH IS THE LATER OF (X) TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF THE SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH TEXTRON FINANCIAL FLOORPLAN MASTER NOTE TRUST (THE “ISSUER”) OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) OR SUCH INTEREST OR PARTICIPATION AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE LAW, ONLY (A) THE ISSUER OR ANY OF THE INITIAL PURCHASERS, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER PURCHASING THIS NOTE OR SUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, IN EACH CASE IN A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000, (D) TO A PURCHASER THAT IS NOT A U.S. PERSON IN AN “OFFSHORE TRANSACTION” WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT IN A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000 OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN A PRINCIPAL AMOUNT
OF NOT LESS THAN $100,000, SUBJECT TO, IN EACH OF (A)-(E), ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF THIS NOTE OR SUCH INTEREST OR PARTICIPATION BE AT ALL TIMES WITHIN ITS CONTROL, AND COMPLIANCE WITH THE SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND WITH THE PROCEDURES SPECIFIED IN THE INDENTURE AND THE INDENTURE SUPPLEMENT. ANY OFFER, SALE, OR TRANSFER PURSUANT TO (E) IS SUBJECT TO TE RIGHT OF THE ISSUER AND THE INDENTURE TRUSTEE TO REQUIRE THE DELIVERY OF ANY OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.]
THIS NOTE (OR A BENEFICIAL INTEREST OR PARTICIPATION HEREIN) MAY NOT BE TRANSFERRED UNLESS, AFTER GIVING EFFECT TO THE TRANSFER, THE TRANSFEREE IS HOLDING A PRINCIPAL AMOUNT WHICH IS EQUAL TO U.S.$100,000 OR INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF A BENEFICIAL INTEREST OR PARTICIPATION HEREIN, AGREE TO TREAT THIS NOTE AS INDEBTEDNESS OF THE ISSUER FOR PURPOSES OF APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.
THE HOLDER OF THIS NOTE (AND EACH HOLDER OF A BENEFICIAL INTEREST OR PARTICIPATION HEREIN) SHALL BE DEEMED TO REPRESENT AND WARRANT THAT EITHER (I) IT IS NOT ACQUIRING THIS NOTE (OR ANY BENEFICIAL INTEREST OR PARTICIPATION HEREIN) WITH THE PLAN ASSETS OF AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), WHICH IS SUBJECT TO TITLE I OF ERISA, A “PLAN” AS DEFINED IN SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AN ENTITY DEEMED TO HOLD THE PLAN ASSETS OF ANY OF THE FOREGOING BY REASON OF INVESTMENT BY AN EMPLOYEE BENEFIT PLAN OR PLAN IN SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE; OR (II) THE ACQUISITION AND HOLDING OF THIS NOTE (OR ANY BENEFICIAL INTEREST OR PARTICIPATION HEREIN) WILL NOT GIVE RISE TO A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR APPLICABLE LAW).
[Insert the following for Regulation S Temporary Book-Entry Note]
[PRIOR TO THE EXPIRATION OF THE 40-DAY ‘DISTRIBUTION COMPLIANCE PERIOD’ (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”)), THIS NOTE OR ANY BENEFICIAL INTEREST OR PARTICIPATION HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON WITHIN THE MEANING OF REGULATION S, EXCEPT TO A PERSON REASONABLY BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND THE INDENTURE AND THE INDENTURE SUPPLEMENT OR OTHERWISE IN ACCORDANCE WITH REGULATION S.
THIS NOTE (OR A BENEFICIAL INTEREST OR PARTICIPATION HEREIN) MAY NOT BE TRANSFERRED UNLESS, AFTER GIVING EFFECT TO THE TRANSFER, THE TRANSFEREE IS HOLDING A PRINCIPAL AMOUNT WHICH IS EQUAL TO U.S.$100,000 OR INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.]
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER OR US OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE ANY INSTITUTION IN INSTITUTING AGAINST US OR THE ISSUER, 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 OBLIGATION RELATING TO THE NOTES, THE INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS UNLESS THE HOLDERS OF NOT LESS THAN SIXTY-SIX AND TWO-THIRDS PERCENT (662/3%) OF THE OUTSTANDING PRINCIPAL AMOUNT OF EACH CLASS AND EACH SERIES OF NOTES ISSUED BY THE ISSUER HAVE APPROVED SUCH ACTION.
TEXTRON FINANCIAL FLOORPLAN MASTER NOTE TRUST
Note Number: |
|
$ |
CUSIP Number: |
|
|
ISIN Number: |
|
|
Textron Financial Floorplan Master Note Trust (herein referred to as the “Issuer”), a Delaware statutory trust, for value received, hereby promises to pay to Cede & Co., or registered assigns, subject to the following provisions, the principal sum of [ ] ($[ ]), or such greater or lesser amount as determined in accordance with the Indenture, at such times and in such amounts provided below or in the Indenture.
This Note is one of a duly authorized issue of Class A Floating Rate Term Notes, Series 2006-A (the “Class A Notes”) issued and to be issued under the Amended and Restated Indenture dated as of May 26, 2005 (as supplemented by the Series 2006-A Supplement dated as of April 19, 2006 (as such Series 2006-A Supplement may be amended, restated, supplemented or otherwise modified from time to time, the “Supplement”) and as it may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Indenture”) among the Issuer and The Bank of New York, a New York banking corporation, as Indenture Trustee (the “Indenture Trustee”, which term includes any successor trustee as permitted under the Indenture). Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Indenture Trustee and the Holders of the Class A Notes and the terms upon which the Class A Notes are, and are to be, authenticated and delivered. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Indenture or the Supplement, as the case may be.
The Issuer promises to pay interest, if any, at the Class A Interest Rate from time to time, on each Payment Date in each case on the outstanding principal balance hereunder until such outstanding principal balance is paid or until the Termination Date as provided in the Supplement. To the extent lawful and enforceable, interest on any Class A Interest Shortfall shall accrue hereon to the extent provided in the Supplement. The interest and other amounts so payable, and punctually paid, on any Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Record Date for such interest, which shall be the last day of the Collection Period preceding such Payment Date.
The principal of this Note shall be payable on each Payment Date on which funds are permitted or required to be used for such purpose in accordance with the Supplement and the Indenture. The principal of this Note shall be due and payable no later than the Series 2006-A Stated Maturity Date, unless previously repaid prior thereto as described in the Indenture.
The obligations of the Issuer under this Note and the Indenture are limited recourse obligations of the Issuer as provided in the Indenture. The payments of principal of, and interest and other amounts with respect to, this Note are subject to the priority of payments as provided in the Indenture and Supplement.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee by the manual signature of one of its Authorized Officers, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
If an Event of Default shall occur and be continuing, this Note may become or be declared due and payable in the manner and with the effect provided in the Indenture.
Title to Notes shall pass solely by registration in the Register kept by the Registrar, which for the Class A Notes initially shall be the Indenture Trustee.
No service charge shall be made for any registration of transfer or exchange of this Note, but the Indenture Trustee or any Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including all fees and expenses of the Indenture Trustee) connected therewith.
The Issuer has structured the Indenture and the Class A Notes with the intention that the Class A Notes will qualify under applicable tax law as indebtedness, and the Issuer, the Residual Interestholder, the Servicer and each Holder of a Class A Note or holder of any interest in a Class A Note by acceptance of its Class A Note (or interest therein), agrees to treat and to take no action inconsistent with the treatment of the Class A Notes (or interest therein) for purposes of federal, state, local and foreign income or franchise taxes and any other tax imposed on or measure by income, as indebtedness. Each Holder of a Class A Note agrees that it will cause any holder of an interest therein acquiring such interest through it to comply with the Indenture as to treatment as indebtedness for certain tax purposes.
AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATION LAW OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
IN WITNESS WHEREOF, the Issuer has caused this Note to be executed by its officer thereunto duly authorized.
|
TEXTRON FINANCIAL FLOORPLAN MASTER NOTE TRUST, as Issuer |
|||
|
|
|||
|
By:
SUNTRUST DELAWARE TRUST |
|||
|
|
|||
|
By: |
|
||
|
|
Name: |
|
|
|
|
Title: |
|
|
INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
Dated: April 19, 2006
|
THE BANK OF NEW YORK, not
in its individual |
|||
|
|
|||
|
By: |
|
||
|
|
Name: |
|
|
|
|
Title: |
|
|
ASSIGNMENT
Social Security or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto (name and address of assignee) the within certificate and all rights thereunder, and hereby irrevocably constitutes and appoints attorney, to transfer said certificate on the books kept for registration thereof, with full power of substitution in the premises.
Dated: |
|
|
|
** |
|
|
Signature Guaranteed: |
** 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.
EXHIBIT A-2
FORM OF CLASS B SERIES 2006-A FLOATING RATE TERM NOTE
[REGULATION S TEMPORARY BOOK-ENTRY NOTE]
[REGULATION S PERMANENT BOOK-ENTRY NOTE]
[U.S. RESTRICTED BOOK-ENTRY 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 UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS NOTE 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.
[Insert the following for U.S. Restricted Book-Entry Note]
[THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY BENEFICIAL INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY OTHER APPLICABLE JURISDICTION. BY ITS ACCEPTANCE HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS EITHER A “QUALIFIED INSTITUTIONAL BUYER” (A “QUALIFIED INSTITUTIONAL BUYER”) (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)), (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE OR ANY INTEREST OR PARTICIPATION HEREIN, PRIOR TO THE DATE WHICH IS THE LATER OF (X) TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF THE SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH TEXTRON FINANCIAL FLOORPLAN MASTER NOTE TRUST (THE “ISSUER”) OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) OR SUCH INTEREST OR PARTICIPATION AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE LAW, ONLY (A) THE ISSUER OR ANY OF THE INITIAL PURCHASERS, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER PURCHASING THIS NOTE OR SUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, IN EACH CASE IN A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000, (D) TO A PURCHASER THAT IS NOT A U.S. PERSON IN AN “OFFSHORE TRANSACTION” WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT IN A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000 OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN A PRINCIPAL AMOUNT
OF NOT LESS THAN $100,000, SUBJECT TO, IN EACH OF (A)-(E), ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF THIS NOTE OR SUCH INTEREST OR PARTICIPATION BE AT ALL TIMES WITHIN ITS CONTROL, AND COMPLIANCE WITH THE SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND WITH THE PROCEDURES SPECIFIED IN THE INDENTURE AND THE INDENTURE SUPPLEMENT. ANY OFFER, SALE, OR TRANSFER PURSUANT TO (E) IS SUBJECT TO TE RIGHT OF THE ISSUER AND THE INDENTURE TRUSTEE TO REQUIRE THE DELIVERY OF ANY OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.]
THIS NOTE (OR A BENEFICIAL INTEREST OR PARTICIPATION HEREIN) MAY NOT BE TRANSFERRED UNLESS, AFTER GIVING EFFECT TO THE TRANSFER, THE TRANSFEREE IS HOLDING A PRINCIPAL AMOUNT WHICH IS EQUAL TO U.S.$100,000 OR INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF A BENEFICIAL INTEREST OR PARTICIPATION HEREIN, AGREE TO TREAT THIS NOTE AS INDEBTEDNESS OF THE ISSUER FOR PURPOSES OF APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.
THE HOLDER OF THIS NOTE (AND EACH HOLDER OF A BENEFICIAL INTEREST OR PARTICIPATION HEREIN) SHALL BE DEEMED TO REPRESENT AND WARRANT THAT EITHER (I) IT IS NOT ACQUIRING THIS NOTE (OR ANY BENEFICIAL INTEREST OR PARTICIPATION HEREIN) WITH THE PLAN ASSETS OF AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), WHICH IS SUBJECT TO TITLE I OF ERISA, A “PLAN” AS DEFINED IN SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AN ENTITY DEEMED TO HOLD THE PLAN ASSETS OF ANY OF THE FOREGOING BY REASON OF INVESTMENT BY AN EMPLOYEE BENEFIT PLAN OR PLAN IN SUCH ENTITY, OR A GOVERNMENTAL PLAN SUBJECT TO APPLICABLE LAW THAT IS SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE; OR (II) THE ACQUISITION AND HOLDING OF THIS NOTE (OR ANY BENEFICIAL INTEREST OR PARTICIPATION HEREIN) WILL NOT GIVE RISE TO A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR APPLICABLE LAW).
[Insert the following for Regulation S Temporary Book-Entry Note]
[PRIOR TO THE EXPIRATION OF THE 40-DAY ‘DISTRIBUTION COMPLIANCE PERIOD’ (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”)), THIS NOTE OR ANY BENEFICIAL INTEREST OR PARTICIPATION HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON WITHIN THE MEANING OF REGULATION S, EXCEPT TO A PERSON REASONABLY BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND THE INDENTURE AND THE INDENTURE SUPPLEMENT OR OTHERWISE IN ACCORDANCE WITH REGULATION S.
THIS NOTE (OR A BENEFICIAL INTEREST OR PARTICIPATION HEREIN) MAY NOT BE TRANSFERRED UNLESS, AFTER GIVING EFFECT TO THE TRANSFER, THE TRANSFEREE IS HOLDING A PRINCIPAL AMOUNT WHICH IS EQUAL TO U.S.$100,000 OR INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.]
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER OR US OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE ANY INSTITUTION IN INSTITUTING AGAINST US OR THE ISSUER, 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 OBLIGATION RELATING TO THE NOTES, THE INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS UNLESS THE HOLDERS OF NOT LESS THAN SIXTY-SIX AND TWO-THIRDS PERCENT (662/3%) OF THE OUTSTANDING PRINCIPAL AMOUNT OF EACH CLASS AND EACH SERIES OF NOTES ISSUED BY THE ISSUER HAVE APPROVED SUCH ACTION.
TEXTRON FINANCIAL FLOORPLAN MASTER NOTE TRUST
Note Number: |
|
$ |
CUSIP Number: |
|
|
ISIN Number: |
|
|
Textron Financial Floorplan Master Note Trust (herein referred to as the “Issuer”), a Delaware statutory trust, for value received, hereby promises to pay to Cede & Co., or registered assigns, subject to the following provisions, the principal sum of [ ] ($[ ]), or such greater or lesser amount as determined in accordance with the Indenture, at such times and in such amounts provided below or in the Indenture.
This Note is one of a duly authorized issue of Class B Floating Rate Term Notes, Series 2006-A (the “Class B Notes”) issued and to be issued under the Amended and Restated Indenture dated as of May 26, 2005 (as supplemented by the Series 2006-A Supplement dated as of April 19, 2006 (as such Series 2006-A Supplement may be amended, restated, supplemented or otherwise modified from time to time, the “Supplement”) and as it may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Indenture”) among the Issuer and The Bank of New York, a New York banking corporation, as Indenture Trustee (the “Indenture Trustee”, which term includes any successor trustee as permitted under the Indenture). Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Indenture Trustee and the Holders of the Class B Notes and the terms upon which the Class B Notes are, and are to be, authenticated and delivered. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Indenture or the Supplement, as the case may be.
The Issuer promises to pay interest, if any, at the Class B Interest Rate from time to time, on each Payment Date in each case on the outstanding principal balance hereunder until such outstanding principal balance is paid or until the Termination Date as provided in the Supplement. To the extent lawful and enforceable, interest on any Class B Interest Shortfall shall accrue hereon to the extent provided in the Supplement. The interest and other amounts so payable, and punctually paid, on any Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Record Date for such interest, which shall be the last day of the Collection Period preceding such Payment Date.
The principal of this Note shall be payable on each Payment Date on which funds are permitted or required to be used for such purpose in accordance with the Supplement and the Indenture. The principal of this Note shall be due and payable no later than the Series 2006-A Stated Maturity Date, unless previously repaid prior thereto as described in the Indenture.
The obligations of the Issuer under this Note and the Indenture are limited recourse obligations of the Issuer as provided in the Indenture. The payments of principal of, and interest and other amounts with respect to, this Note are subject to the priority of payments as provided in the Indenture and Supplement.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee by the manual signature of one of its Authorized Officers, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
If an Event of Default shall occur and be continuing, this Note may become or be declared due and payable in the manner and with the effect provided in the Indenture.
Title to Notes shall pass solely by registration in the Register kept by the Registrar, which for the Class B Notes initially shall be the Indenture Trustee.
No service charge shall be made for any registration of transfer or exchange of this Note, but the Indenture Trustee or any Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including all fees and expenses of the Indenture Trustee) connected therewith.
The Issuer has structured the Indenture and the Class B Notes with the intention that the Class B Notes will qualify under applicable tax law as indebtedness, and the Issuer, the Residual Interestholder, the Servicer and each Holder of a Class B Note or holder of any interest in a Class B Note by acceptance of its Class B Note (or interest therein), agrees to treat and to take no action inconsistent with the treatment of the Class B Notes (or interest therein) for purposes of federal, state, local and foreign income or franchise taxes and any other tax imposed on or measure by income, as indebtedness. Each Holder of a Class B Note agrees that it will cause any holder of an interest therein acquiring such interest through it to comply with the Indenture as to treatment as indebtedness for certain tax purposes.
AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATION LAW OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
IN WITNESS WHEREOF, the Issuer has caused this Note to be executed by its officer thereunto duly authorized.
|
TEXTRON
FINANCIAL FLOORPLAN MASTER |
|||
|
|
|||
|
By: SUNTRUST
DELAWARE TRUST |
|||
|
|
|||
|
By: |
|
||
|
|
Name: |
|
|
|
|
Title: |
|
|
INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
Dated: April 19, 2006
|
THE BANK OF NEW YORK, not
in its individual |
|||
|
|
|||
|
By: |
|
||
|
|
Name: |
|
|
|
|
Title: |
|
|
ASSIGNMENT
Social Security or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto (name and address of assignee) the within certificate and all rights thereunder, and hereby irrevocably constitutes and appoints attorney, to transfer said certificate on the books kept for registration thereof, with full power of substitution in the premises.
Dated: |
|
|
** |
|
Signature Guaranteed: |
** 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.
FORM OF CLASS C SERIES 2006-A PRINCIPAL ONLY TERM NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY BENEFICIAL INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY OTHER APPLICABLE JURISDICTION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER OR US OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE ANY INSTITUTION IN INSTITUTING AGAINST US OR THE ISSUER, 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 OBLIGATION RELATING TO THE NOTES, THE INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS UNLESS THE HOLDERS OF NOT LESS THAN SIXTY-SIX AND TWO-THIRDS PERCENT (662/3%) OF THE OUTSTANDING PRINCIPAL AMOUNT OF EACH CLASS AND EACH SERIES OF NOTES ISSUED BY THE ISSUER HAVE APPROVED SUCH ACTION.
TEXTRON FINANCIAL FLOORPLAN MASTER NOTE TRUST
Note Number: |
|
$ |
CUSIP Number: |
|
|
ISIN Number: |
|
Textron Financial Floorplan Master Note Trust (herein referred to as the “Issuer”), a Delaware statutory trust, for value received, hereby promises to pay to Cede & Co., or registered assigns, subject to the following provisions, the principal sum of [ ] ($[ ]), or such greater or lesser amount as determined in accordance with the Indenture, at such times and in such amounts provided below or in the Indenture.
This Note is one of a duly authorized issue of Class C Principal Only Term Notes, Series 2006-A (the “Class C Notes”) issued and to be issued under the Amended and Restated Indenture dated as of May 26, 2005 (as supplemented by the Series 2006-A Supplement dated as of April 19, 2006 (as such Series 2006-A Supplement may be amended, restated, supplemented or otherwise modified from time to time, the “Supplement”) and as it may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Indenture”) among the Issuer and The Bank of New York, a New York banking corporation, as Indenture Trustee (the “Indenture Trustee”, which term includes any successor trustee as permitted under the Indenture). Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Indenture Trustee and the Holders of the Class C Notes and the terms upon which the Class C Notes are, and are to be, authenticated and delivered. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Indenture or the Supplement, as the case may be.
This Note shall not bear interest.
The principal of this Note shall be payable on each Payment Date on which funds are permitted or required to be used for such purpose in accordance with the Supplement and the Indenture. The principal of this Note shall be due and payable no later than the Series 2006-A Stated Maturity Date, unless previously repaid prior thereto as described in the Indenture.
The obligations of the Issuer under this Note and the Indenture are limited recourse obligations of the Issuer as provided in the Indenture. The payments of principal of, and other amounts with respect to, this Note are subject to the priority of payments as provided in the Indenture and Supplement.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee by the manual signature of one of its Authorized Officers, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
If an Event of Default shall occur and be continuing, this Note may become or be declared due and payable in the manner and with the effect provided in the Indenture.
Title to Notes shall pass solely by registration in the Register kept by the Registrar, which for the Class C Notes initially shall be the Indenture Trustee. Neither this Note nor any interest herein may be sold, pledged, participated, transferred, disposed of or otherwise alienated (each, a “Transfer”), and the Registrar will not recognize any Transfer or purported Transfer of this Note, unless prior to such Transfer
or purported Transfer the Indenture Trustee and the Registrar have received an Opinion of Counsel to the effect that, for federal income tax purposes, such Transfer will not cause the Issuer to be characterized as an association or publicly traded partnership as a corporation. Any Transfer or purported Transfer of this Note in violation of the preceding sentence shall be void ab initio and of no effect.
No service charge shall be made for any registration of transfer or exchange of this Note, but the Indenture Trustee or any Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including all fees and expenses of the Indenture Trustee) connected therewith.
AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATION LAW OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
IN WITNESS WHEREOF, the Issuer has caused this Note to be executed by its officer thereunto duly authorized.
|
TEXTRON FINANCIAL
FLOORPLAN MASTER |
|||
|
|
|||
|
By:
SUNTRUST DELAWARE TRUST |
|||
|
|
|||
|
By: |
|
||
|
|
Name: |
|
|
|
|
Title: |
|
|
INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-mentioned Indenture.
Dated: April 19, 2006
|
THE BANK OF NEW YORK, not
in its individual |
||
|
|
||
|
By: |
|
|
|
|
Name: |
|
|
|
Title: |
|
ASSIGNMENT
Social Security or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto (name and address of assignee) the within certificate and all rights thereunder, and hereby irrevocably constitutes and appoints attorney, to transfer said certificate on the books kept for registration thereof, with full power of substitution in the premises.
Dated: |
|
|
** |
|
Signature Guaranteed: |
** 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.
FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP
[Euroclear Bank S.A./N.V., as operator of the Euroclear System]
[Clearstream Banking, société anonyme]
Re: TEXTRON FINANCIAL FLOORPLAN MASTER NOTE TRUST
$[ ]
Reference is hereby made to the Amended and Restated Indenture dated as of May 26, 2005 between The Bank of New York (the “Indenture Trustee”) and Textron Financial Floorplan Master Note Trust (the “Issuer”) (as supplemented by the Series 2006-A Supplement, dated as of April 19, 2006, among the Company, Indenture Trustee and Textron Financial Corporation, as servicer, the “Indenture”). Capitalized terms not defined in this Certificate shall have the meanings given to them in the Indenture.
This is to certify that as of the date hereof, and except as set forth below, the above-captioned [Class A] [Class B] Notes (the “Securities”) held by you for our account are beneficially owned by (a) persons that are not U.S. person(s) or (b) Qualified Institutional Buyers. As used in this paragraph, the term “U.S. person” has the meaning given to it by Regulation S under the Securities Act.
As used herein, “United States” has the meaning given to it by Regulation S under the Securities Act.
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Securities held by you for our account in accordance with your operating procedures in any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to $ of such interest in the above Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Securities (or, if relevant, exercise of any rights or collection of any interest) cannot be made until we do so certify.
We understand that this certification is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any party in such proceedings.
Date: , (1)
(1) Not earlier than 15 days prior to the certification event to which the certification relates.
By: |
|
|
As, or as agent for, the beneficial owner(s) of the Securities to which this certificate relates.
FORM OF TRANSFER CERTIFICATE FOR TRANSFER OR
EXCHANGE FROM REGULATION S BOOK-ENTRY NOTE
TO U.S. RESTRICTED BOOK-ENTRY NOTE
[Indenture Trustee or Transfer Agent]
[Address]
Re: TEXTRON FINANCIAL FLOORPLAN MASTER NOTE TRUST
$[ ]
Reference is hereby made to the Amended and Restated Indenture dated as of May 26, 2005 between The Bank of New York (the “Indenture Trustee”) and Textron Financial Floorplan Master Note Trust (the “Issuer”) (as supplemented by the Series 2006-A Supplement, dated as of April 19, 2006, among the Company, Indenture Trustee and Textron Financial Corporation, as servicer, the “Indenture”). Capitalized terms not defined in this Certificate shall have the meanings given to them in the Indenture.
This letter relates to principal amount of [Class A] [Class B] Notes (the “Securities”) which are held in the form of the Regulation S [Temporary] [Permanent] Book-Entry Note (CUSIP No. ) (ISIN Code ) [(Common Code ) with [[Euroclear] Clearstream, Luxembourg]] through The Depository Trust Company by or on behalf of transferor as beneficial owner (the “Transferor”). The Transferor has requested an exchange or transfer of its interest in the Securities for a beneficial interest in the U.S. Restricted Book-Entry Note (CUSIP No. ).
In connection with such request, and in respect of the Securities, the Transferor does hereby certify that such Securities are being transferred in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities Act”), to a transferee that the Transferor reasonably believes is purchasing the Securities for its own account or an account with respect to which the transferee exercises sole investment discretion and the transferee and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction.
[REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY]
This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the dealers of the Securities.
|
[Insert Name of Transferor] |
||||
|
|
||||
|
|
||||
|
By: |
|
|
||
|
|
Name: |
|||
|
|
Title: |
|||
|
|
|
|||
Dated: |
|
|
|
|
|
The undersigned represents and warrants that it is purchasing the Securities for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a Qualified Institutional Buyer, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
|
[Insert Name of Transferee] |
|||||
|
|
|||||
|
|
|||||
|
By: |
|
|
|||
|
|
Name: |
||||
|
|
Title: |
||||
|
|
|
||||
Dated: |
|
|
|
|
||
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM
U.S. RESTRICTED BOOK-ENTRY NOTE TO REGULATION S
BOOK-ENTRY NOTE
[Indenture Trustee or Transfer Agent]
[Address]
Re: TEXTRON FINANCIAL FLOORPLAN MASTER NOTE TRUST
$[ ]
Reference is hereby made to the Amended and Restated Indenture dated as of May 26, 2005 between The Bank Of New York (the “Indenture Trustee”) and Textron Financial Floorplan Master Note Trust (the “Issuer”) (as supplemented by the Series 2006-A Supplement, dated as of April 19, 2006, among the Company, Indenture Trustee and Textron Financial Corporation, as servicer, the “Indenture”). Capitalized terms not defined in this Certificate shall have the meanings given to them in the Indenture.
This letter relates to principal amount of [Class A] [Class B] Notes (the “Securities”) represented by a beneficial interest in the U.S. Restricted Book-Entry Note (CUSIP No. ) held with The Depository Trust Company by or on behalf of [transferor] as beneficial owner (the “Transferor”). The Transferor has requested an exchange or transfer of its beneficial interest for an interest in the Regulation S [Temporary] [Permanent] Book-Entry Note (CUSIP No. ) (ISIN Code ) (Common Code ) to be held [with [Euroclear] [Clearstream, Luxembourg]] through the Depository.
In connection with such request and in respect of the Securities, the Transferor does hereby certify that such exchange or transfer has been effected in accordance with the transfer restrictions set forth in the Securities and pursuant to and in accordance with Regulation S under the Securities Act, and accordingly the Transferor does hereby certify that:
(1) the offer of the Securities was not made to a person in the United States;
(2) (A) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States, or
(B) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.] [Include if transfer is to the Regulation S Temporary Book-entry Note:]; and
(5) upon completion of the transaction, the beneficial interest being transferred as described above will be held with The Depository Trust Company through Euroclear or Clearstream, Luxembourg or both (Common Code [(ISIN Code )]).]
This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the dealers.
|
[Insert Name of Transferor] |
||||||
|
|
||||||
|
|
||||||
|
By: |
|
|
||||
|
|
Name: |
|||||
|
|
Title: |
|||||
|
|
|
|||||
Dated: |
|
|
|
|
|||
The undersigned represents and warrants that it is purchasing the Securities for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is not a “U.S. Person” within the meaning of Regulation S and is aware that the sale to it is being made in reliance on Rule 903 or 904 under Regulation S and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Regulation S.
|
[Insert Name of Transferee] |
||||||
|
|
||||||
|
|
||||||
|
By: |
|
|
||||
|
|
Name: |
|||||
|
|
Title: |
|||||
|
|
|
|||||
Dated: |
|
|
|
|
|||