Exhibit 4.5
GREYHOUND FUNDING LLC,
as Issuer
and
THE CHASE MANHATTAN BANK,
as Indenture Trustee
SERIES 1999-2 INDENTURE SUPPLEMENT
dated as of October 28, 1999
to
BASE INDENTURE
dated as of June 30, 1999
Floating Rate Asset-Backed Investor Notes
TABLE OF CONTENTS
PAGE
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PRELIMINARY STATEMENT.............................................................................................1
DESIGNATION.......................................................................................................1
ARTICLE 1
DEFINITIONS.......................................................................................................1
ARTICLE 2
ARTICLE 5 OF THE BASE INDENTURE..................................................................................13
Section 5A.1. Establishment of Series 1999-2 Subaccounts..........................................14
Section 5A.2. Allocations with Respect to the Series 1999-2 Investor Notes........................14
Section 5A.3. Determination of Interest...........................................................16
Section 5A.4. Monthly Application of Collections..................................................17
Section 5A.5. Payment of Monthly Interest Payment.................................................20
Section 5A.6. Payment of Principal................................................................20
Section 5A.7. The Administrator's Failure to Instruct the Indenture Trustee to Make a
Deposit or Payment..................................................................21
Section 5A.8. Series 1999-2 Reserve Account.......................................................21
Section 5A.9. Series 1999-2 Yield Supplement Account..............................................23
Section 5A.10. Series 1999-2 Distribution Account..................................................25
Section 5A.11. Lease Rate Caps.....................................................................25
ARTICLE 3
AMORTIZATION EVENTS..............................................................................................27
ARTICLE 4
OPTIONAL PREPAYMENT..............................................................................................29
ARTICLE 5
SERVICING AND ADMINISTRATOR FEES.................................................................................29
Section 5.1 Servicing Fee.......................................................................29
Section 5.2 Administrator Fee...................................................................29
ARTICLE 6
FORM OF SERIES 1999-2 NOTES......................................................................................30
Section 6.1 Initial Issuance of Series 1999-2 Investor Notes....................................30
Section 6.2 Restricted Global Notes.............................................................30
Section 6.3 Regulation S Global Notes and Unrestricted Global Notes.............................30
TABLE OF CONTENTS
(continued)
PAGE
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Section 6.4 Definitive Notes...................................................................31
Section 6.5 Transfer Restrictions...............................................................31
ARTICLE 7
INFORMATION......................................................................................................35
ARTICLE 8
MISCELLANEOUS....................................................................................................36
Section 8.1 Ratification of Indenture...........................................................36
Section 8.2 Obligations Unaffected..............................................................36
Section 8.3 Governing Law.......................................................................36
Section 8.4 Further Assurances..................................................................36
Section 8.5 Exhibits............................................................................36
Section 8.6 No Waiver; Cumulative Remedies......................................................37
Section 8.7 Amendments..........................................................................37
Section 8.8 Severability........................................................................37
Section 8.9 Counterparts........................................................................37
Section 8.10 No Bankruptcy Petition..............................................................37
Section 8.11 SUBIs...............................................................................37
Section 8.12 Notice to Rating Agencies...........................................................38
Section 8.13 Conflict of Instructions............................................................38
EXHIBITS
Exhibit A-1-1: Form of Restricted Global Class A-1 Note
Exhibit A-1-2: Form of Regulation S Global Class A-1 Note
Exhibit A-1-3: Form of Unrestricted Global Class A-1 Note
Exhibit A-2-1: Form of Restricted Global Class A-2 Note
Exhibit A-2-2: Form of Regulation S Global Class A-2 Note
Exhibit A-2-3: Form of Unrestricted Global Class A-2 Note
Exhibit B-1: Form of Transfer Certificate
Exhibit B-2: Form of Transfer Certificate
Exhibit B-3 Form of Transfer Certificate
Exhibit C: Form of Monthly Settlement Statement
Exhibit D: Form of Series 1999-2 Lease Rate Cap
SERIES 1999-2 SUPPLEMENT, dated as of October 28, 1999 (as
amended, supplemented, restated or otherwise modified from time to time, this
"
INDENTURE SUPPLEMENT") between
GREYHOUND FUNDING LLC, a special purpose limited
liability company established under the laws of Delaware (the "ISSUER"), and THE
CHASE MANHATTAN BANK ("CHASE"), a New York banking corporation, in its capacity
as Indenture Trustee (together with its successors in trust thereunder as
provided in the Base Indenture referred to below, the "INDENTURE TRUSTEE"), to
the Base Indenture, dated as of June 30, 1999, between the Issuer and the
Indenture Trustee (as amended, modified, restated or supplemented from time to
time, exclusive of
Indenture Supplements creating new Series of Investor Notes,
the "BASE INDENTURE").
PRELIMINARY STATEMENT
WHEREAS, SECTIONS 2.2 and 12.1 of the Base Indenture provide,
among other things, that the Issuer and the Indenture Trustee may at any time
and from time to time enter into a
Indenture Supplement to the Base Indenture
for the purpose of authorizing the issuance of one or more Series of Investor
Notes.
NOW, THEREFORE, the parties hereto agree as follows:
DESIGNATION
There is hereby created a Series of Investor Notes to be
issued pursuant to the Base Indenture and this
Indenture Supplement and such
Series of Investor Notes shall be designated generally as Floating Rate Asset
Backed Investor Notes, Series 1999-2.
The Series 1999-2 Investor Notes shall be issued in two
classes: (i) Series 1999-2 Floating Rate Asset Backed Investor Notes, Class A-1,
which shall be designated generally as the Class A-1 Investor Notes and (ii) the
Series 1999-2 Floating Rate Asset Backed Investor Notes, Class A-2, which shall
be designated generally as the Class A-2 Investor Notes. The Class A-1 Investor
Notes and the Class A-2 Investor Notes are referred to collectively as the
"Series 1999-2 Investor Notes." The Series 1999-2 Investor Notes shall be issued
in minimum denominations of $200,000 and integral multiples of $1,000 in excess
thereof.
The proceeds from the sale of the Series 1999-2 Investor Notes
(as defined herein) shall be deposited in the Series 1999-2 Collection
Subaccount and shall be used by the Issuer to fund the maintenance of the SUBI
Certificates under the Transfer Agreement and/or to reduce the Invested Amounts
of other Series of Investor Notes.
ARTICLE 1
DEFINITIONS
(a) All capitalized terms not otherwise defined herein are
defined in the Definitions List attached to the Base Indenture as Schedule 1
thereto. All Article, Section or Subsection references herein shall refer to
Articles, Sections or Subsections of the Base Indenture, except as otherwise
provided herein. Unless otherwise stated herein, as the context
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otherwise requires or if such term is otherwise defined in the Base Indenture,
each capitalized term used or defined herein shall relate only to the Series
1999-2 Investor Notes and not to any other Series of Investor Notes issued by
the Issuer.
(b) The following words and phrases shall have the following
meanings with respect to the Series 1999-2 Investor Notes and the definitions of
such terms are applicable to the singular as well as the plural form of such
terms and to the masculine as well as the feminine and neuter genders of such
terms:
"AMORTIZATION EVENT" is defined in Article 3.
"APPLICABLE PROCEDURES" is defined in Section 6.5(b).
"ASSUMED LEASE TERM" means, with respect to any Series 1999-2
Yield Shortfall Lease, the number of months over which the Capitalized
Cost of the related Leased Vehicle is being depreciated thereunder.
"AUTHORIZED NEWSPAPER" means the LUXEMBURGER WORT or other
daily newspaper of general circulation in Luxembourg (or if publication
is not practical in Luxembourg, in Europe).
"CALCULATION AGENT" means The Chase Manhattan Bank, in its
capacity as calculation agent with respect to the Series 1999-2 Note
Rates.
"CEDELBANK" is defined in Section 6.3.
"CLASS A-1 FINAL MATURITY DATE" means the October 2006 Payment
Date.
"CLASS A-1 INITIAL INVESTED AMOUNT" means the aggregate
initial principal amount of the Class A-1 Investor Notes, which is
$550,000,000.
"CLASS A-1 INTEREST SHORTFALL AMOUNT" is defined in Section
5A.3.
"CLASS A-1 INVESTED AMOUNT" means as of any date of
determination, an amount equal to (a) the Class A-1 Initial Invested
Amount minus (b) the amount of principal payments made to Class A-1
Investor Noteholders on or prior to such date.
"CLASS A-1 INVESTOR NOTEHOLDER" means the person in whose name
a Class A-1 Investor Note is registered in the Note Register.
"CLASS A-1 INVESTOR NOTES" means any one of the Series 1999-2
Floating Rate Asset Backed Investor Notes, Class A-1, executed by the
Issuer and authenticated by or on behalf of the Indenture Trustee,
substantially in the form of Exhibit A-1-1, Exhibit A-1-2 or Exhibit
A-1-3. Definitive Class A-1 Investor Notes shall have such insertions
and deletions as are necessary to give effect to the provisions of
SECTION 2.11 of the Base Indenture.
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"CLASS A-1 MONTHLY INTEREST" means, with respect to any Series
1999-2 Interest Period, an amount equal to the product of (i) the Class
A-1 Note Rate for such Series 1999-2 Interest Period, (ii) the Class
A-1 Invested Amount on the first day of such Series 1999-2 Interest
Period, after giving effect to any principal payments made on such
date, or, in the case of the initial Series 1999-2 Interest Period, the
Class A-1 Initial Invested Amount and (iii) a fraction, the numerator
of which is the number of days in such Series 1999-2 Interest Period
and the denominator of which is 360.
"CLASS A-1 NOTE RATE" means, (i) with respect to the initial
Series 1999-2 Interest Period, 5.73% per annum and (ii) with respect to
each Series 1999-2 Interest Period thereafter, a rate per annum equal
to One-Month LIBOR for such Series 1999-2 Interest Period plus 0.32%
per annum.
"CLASS A-2 FINAL MATURITY DATE" means the October 2011 Payment
Date.
"CLASS A-2 INITIAL INVESTED AMOUNT" means the aggregate
initial principal amount of the Class A-2 Investor Notes, which is
$450,000,000.
"CLASS A-2 INTEREST SHORTFALL AMOUNT" is defined in Section
5A.3.
"CLASS A-2 INVESTED AMOUNT" means, as of any date of
determination, an amount equal to (a) the Class A-2 Initial Invested
Amount minus (b) the amount of principal payments made to Class A-2
Investor Noteholders on or prior to such date.
"CLASS A-2 INVESTOR NOTEHOLDER" means the Person in whose name
a Class A-2 Investor Note is registered in the Note Register.
"CLASS A-2 INVESTOR NOTES" means any one of the Series 1999-2
Floating Rate Asset Backed Investor Notes, Class A-2, executed by the
Issuer and authenticated by or on behalf of the Indenture Trustee,
substantially in the form of Exhibit A-2-1, Exhibit A-2-2 or Exhibit
A-2-3. Definitive Class A-2 Investor Notes shall have such insertions
and deletions as are necessary to give effect to the provisions of
Section 2.11 of the Base Indenture.
"CLASS A-2 MONTHLY INTEREST" means, with respect to any Series
1999-2 Interest Period, an amount equal to the product of (i) the Class
A-2 Note Rate for such Series 1999-2 Interest Period, (ii) the Class
A-2 Invested Amount on the first day of such Series 1999-2 Interest
Period, after giving effect to any principal payments made on such
date, or, in the case of the initial Series 1999-2 Interest Period, the
Class A-2 Initial Invested Amount and (iii) a fraction, the numerator
of which is the number of days in such Series 1999-2 Interest Period
and the denominator of which is 360.
"CLASS A-2 NOTE RATE" means, (i) with respect to the initial
Series 1999-2 Interest Period, 5.76% per annum and (ii) with respect to
each Series 1999-2 Interest Period thereafter, a rate per annum equal
to One-Month LIBOR for such Series 1999-2 Interest Period plus 0.35%
per annum.
"DEFICIENCY" is defined in Section 5A.4(b)(i).
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"DIVIDEND AMOUNT" means, with respect to any Payment Date, the
aggregate amount of dividends payable to the Series 1999-2 Preferred
Members in respect of their Series 1999-2 Preferred Membership
Interests pursuant to the LLC Agreement.
"DOLLAR", "US$" and "$" means lawful currency of the United
States.
"DTC" means The Depository Trust Company or its successor, as
the Clearing Agency for the Series 1999-2 Investor Notes.
"ESTIMATED DIVIDEND AMOUNT" means, on any Business Day during
the period commencing on a Period End Date to but excluding the next
succeeding Settlement Date, an amount equal to the sum of (a) the
aggregate amount of dividends that would be payable to the Series
1999-2 Preferred Members in respect of their Series 1999-2 Preferred
Membership Interests pursuant to the LLC Agreement on the Payment Date
falling on such Settlement Date, assuming that the dividends payable on
such Payment Date accumulate thereon at a dividend rate equal to the
weighted average dividend rate applicable to the Series 1999-2
Preferred Membership Interests during the portion of the applicable
dividend period ending on the immediately preceding Business Day and
(b) the product of (i) the aggregate stated liquidation preference of
the Series 1999-2 Preferred Membership Interests, (ii) 1.00% per annum
and (iii) the number of days remaining in the applicable dividend
period DIVIDED by 360.
"EUROCLEAR" is defined in SECTION 6.3.
"FINAL MATURITY DATE" means the Class A-1 Final Maturity Date
or the Class A-2 Final Maturity Date.
"
INDENTURE SUPPLEMENT" has the meaning set forth in the
preamble.
"INTEREST SHORTFALL" is defined in SECTION 5A.3.
"LIBOR DETERMINATION DATE" means, with respect to any Series
1999-2 Interest Period, the second London Business Day next preceding
the first day of such Series 1999-2 Interest Period.
"LONDON BUSINESS DAY" means any day on which dealings in
deposits in Dollars are transacted in the London interbank market and
banking institutions in London are not authorized or obligated by law
or regulation to close.
"MONTHLY INTEREST PAYMENT" is defined in SECTION 5A.4(c)(V).
"ONE-MONTH LIBOR" means, for each Series 1999-2 Interest
Period, the rate per annum determined on the related LIBOR
Determination Date by the Calculation Agent to be the rate for Dollar
deposits having a maturity equal to one month that appears on Telerate
Page 3750 at approximately 11:00 a.m., London time, on such LIBOR
Determination Date; PROVIDED, HOWEVER, that if such rate does not
appear on Telerate Page 3750, One-Month LIBOR will mean, for such
1999-2 Interest Period, the rate per annum equal to the arithmetic mean
(rounded to the nearest one-one-hundred-thousandth
5
of one percent) of the rates quoted by the Reference Banks to the
Calculation Agent as the rates at which deposits in Dollars are offered
by the Reference Banks at approximately 11:00 a.m., London time, on the
LIBOR Determination Date to prime banks in the London interbank market
for a period equal to one month; PROVIDED, FURTHER, that if fewer than
two quotations are provided as requested by the Reference Banks,
"One-Month LIBOR" for such Series 1999-2 Interest Period will mean the
arithmetic mean (rounded to the nearest one-one-hundred-thousandth of
one percent) of the rates quoted by major banks in New York, New York
selected by the Calculation Agent, at approximately 10:00 a.m., New
York City time, on the first day of such Series 1999-2 Interest Period
for loans in Dollars to leading European banks for a period equal to
one month; PROVIDED, FINALLY, that if no such quotes are provided,
"One-Month LIBOR" for such Series 1999-2 Interest Period will mean
One-Month LIBOR as in effect with respect to the preceding Series
1999-2 Interest Period.
"OUTSTANDING" means, with respect to the Series 1999-2
Investor Notes, all Series 1999-2 Investor Notes theretofore
authenticated and delivered under the Indenture, EXCEPT (a) Series
1999-2 Investor Notes theretofore canceled or delivered to the Transfer
Agent and Registrar for cancellation, (b) Series 1999-2 Investor Notes
which have not been presented for payment but funds for the payment of
which are on deposit in the Series 1999-2 Distribution Account and are
available for payment of such Series 1999-2 Investor Notes, and Series
1999-2 Investor Notes which are considered paid pursuant to SECTION
11.1 of the Base Indenture, or (c) Series 1999-2 Investor Notes in
exchange for or in lieu of other Series 1999-2 Investor Notes which
have been authenticated and delivered pursuant to the Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such
Series 1999-2 Investor Notes are held by a purchaser for value.
"PAYMENT DATE" means the 7th day of each month, or if such
date is not a Business Day, the next succeeding Business Day,
commencing November 8, 1999.
"PREPAYMENT DATE" is defined in ARTICLE 4.
"QIB" is defined in SECTION 6.1.
"RATING AGENCIES" means, with respect to the Series 1999-2
Investor Notes, Standard & Poor's, ▇▇▇▇▇'▇ and any other nationally
recognized rating agency rating the Series 1999-2 Investor Notes at the
request of the Issuer.
"RATING AGENCY CONDITION" means, with respect to any action
specified herein as requiring satisfaction of the Rating Agency
Condition, that each Rating Agency shall have been given 10 days' (or
such shorter period as shall be acceptable to each Rating Agency) prior
notice thereof and that each of the Rating Agencies shall have notified
the Issuer and the Indenture Trustee in writing that such action will
not result in a reduction or withdrawal of the then current rating of
the Series 1999-2 Investor Notes or of any Series 1999-2 Preferred
Membership Interests.
"RECORD DATE" means, with respect to each Payment Date, the
last day of the immediately preceding calendar month.
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"REFERENCE BANKS" means four major banks in the London
interbank market selected by the Calculation Agent.
"REGULATION S" means Regulation S promulgated under the
Securities Act.
"REGULATION S GLOBAL NOTES" is defined in Section 6.3.
"RESTRICTED GLOBAL NOTES" is defined in Section 6.2.
"RESTRICTED NOTES" means the Restricted Global Notes and all
other Investor Notes evidencing the obligations, or any portion of the
obligations, initially evidenced by the Restricted Global Notes, other
than certificates transferred or exchanged upon certification as
provided in SECTION 6.5(h)(iv).
"RESTRICTED PERIOD" means the period commencing on the Series
1999-2 Closing Date and ending on the 40th day after the Series 1999-2
Closing Date.
"RULE 144A" means Rule 144A promulgated under the Securities
Act.
"SERIES 1999-2" means Series 1999-2, the Principal Terms of
which are set forth in this
Indenture Supplement.
"SERIES 1999-2 ADMINISTRATOR FEE" is defined in SECTION 5.2.
"SERIES 1999-2 ALLOCATED ADJUSTED AGGREGATE UNIT BALANCE"
means, as of any date of determination, the product of (a) the Adjusted
Aggregate Unit Balance and (b) the percentage equivalent of a fraction
the numerator of which is the Series 1999-2 Required Asset Amount as of
such date and the denominator of which is the sum of (x) the Series
1999-2 Required Asset Amount and (y) the aggregate Required Asset
Amounts with respect to each other Series of Investor Notes as of such
date, including all Series of Investor Notes that have been paid in
full but as to which the Amortization Period shall have not ended.
"SERIES 1999-2 ALLOCATED ASSET AMOUNT DEFICIENCY" means, as of
any date of determination, the amount, if any, by which the Series
1999-2 Allocated Adjusted Aggregate Unit Balance is less than the
Series 1999-2 Required Asset Amount as of such date.
"SERIES 1999-2 AMORTIZATION PERIOD" means the period beginning
at the earlier of (a) the close of business on the Business Day
immediately preceding the day on which an Amortization Event is deemed
to have occurred with respect to the Series 1999-2 Investor Notes and
(b) the close of business on the Period End Date in March 2001 and
ending on the date when (i) the Series 1999-2 Investor Notes are fully
paid, (ii) all dividends accrued and accumulated on the Series 1999-2
Preferred Membership Interests shall have been declared and paid in
full, (iii) the Series 1999-2 Preferred Membership Interests shall have
been redeemed in accordance with their terms and (iv) all amounts owing
in respect of the Series 1999-2 Preferred Membership Interests under
the Series
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1999-2 Preferred Membership Interest Purchase Agreement shall have been
paid in full by the Issuer.
"SERIES 1999-2 AVAILABLE EXCESS COLLECTIONS AMOUNT" means, on
any Business Day during the period commencing on a Period End Date to
but excluding the next succeeding Settlement Date, an amount equal to
the excess, if any, of (a) the amount deposited in the Series 1999-2
General Collection Subaccount during the immediately preceding Monthly
Period pursuant to SECTION 5A.2(a) over (b) the sum of (i) the amounts
to be distributed from the Series 1999-2 Settlement Collection
Subaccount pursuant to paragraphs (i) through (xi) of SECTION 5A.4(c
on such Settlement Date, assuming for the purposes of calculating the
amount distributable pursuant to paragraph (viii) that the Dividend
Amount for the Payment Date falling on such Settlement Date will equal
the Estimated Dividend Amount for such Business Day and (ii) any
amounts owing in respect of the Series 1999-2 Preferred Membership
Interests under the Series 1999-2 Preferred Membership Interest
Purchase Agreement on such Settlement Date.
"SERIES 1999-2 CLOSING DATE" means October 28, 1999.
"SERIES 1999-2 COLLATERAL" means the Collateral, the Series
1999-2 Reserve Account, the Series 1999-2 Yield Supplement Account, the
Series 1999-2 Distribution Account and the Series 1999-2 Lease Rate
Caps.
"SERIES 1999-2 COLLECTION SUBACCOUNT" is defined in SECTION
5A.1(a).
"SERIES 1999-2 DISTRIBUTION ACCOUNT" is defined in Section
5A.10(a).
"SERIES 1999-2 ELIGIBLE COUNTERPARTY" means a financial
institution having on the date of any acquisition of a Lease Rate Cap
short-term debt ratings of A-1+ by Standard & Poor's and P-1 by ▇▇▇▇▇'▇
and long-term unsecured debt ratings of at least AA- by Standard &
Poor's and Aa3 by ▇▇▇▇▇'▇.
"SERIES 1999-2 EXCESS FLEET RECEIVABLE AMOUNT" means, for any
Settlement Date, an amount equal to the product of (a) the average
daily Series 1999-2 Invested Percentage during the immediately
preceding Monthly Period and (b) the Excess Fleet Receivable Amount for
such Settlement Date.
"SERIES 1999-2 GAIN ON SALE ACCOUNT PERCENTAGE" means 10%.
"SERIES 1999-2 GLOBAL NOTE" means a Regulation S Global Note,
a Restricted Global Note or an Unrestricted Global Note.
"SERIES 1999-2 HYPOTHETICAL YIELD SHORTFALL AMOUNT" means, for
any Settlement Date, an amount equal to the product of (x) the excess,
if any, of the Series 1999-2 Minimum Yield Rate for such Settlement
Date over the CP Rate as of the last day of the immediately preceding
Monthly Period, (y) the Series 1999-2 Invested Percentage on such
Settlement Date of the aggregate Lease Balance of all Floating Rate
Leases as of the last day of the immediately preceding Monthly Period
and (z) 2.75.
8
"SERIES 1999-2 INITIAL INVESTED AMOUNT" means the sum of the
Class A-1 Initial Invested Amount and the Class A-2 Initial Invested
Amount.
"SERIES 1999-2 INTEREST PERIOD" means a period commencing on
and including a Payment Date and ending on and including the day
preceding the next succeeding Payment Date; PROVIDED, HOWEVER, that the
initial Series 1999-2 Interest Period shall commence on and include the
Series 1999-2 Closing Date and end on and include November 7, 1999.
"SERIES 1999-2 INVESTED AMOUNT" means, as of any date of
determination, the sum of the Class A-1 Invested Amount and the Class
A-2 Invested Amount as of such date.
"SERIES 1999-2 INVESTED PERCENTAGE" means, with respect to any
Business Day (i) during the Series 1999-2 Revolving Period, the
percentage equivalent (which percentage shall never exceed 100%) of a
fraction the numerator of which shall be equal to the Series 1999-2
Allocated Adjusted Aggregate Unit Balance as of the end of the
immediately preceding Business Day and the denominator of which is the
sum of the numerators used to determine invested percentages for
allocations for all Series of Investor Notes (and all classes of such
Series of Investor Notes), including all Series of Investor Notes that
have been paid in full but as to which the Amortization Period has not
ended, as of the end of such immediately preceding Business Day or (ii)
during the Series 1999-2 Amortization Period, the percentage equivalent
(which percentage shall never exceed 100%) of a fraction the numerator
of which shall be equal to the Series 1999-2 Allocated Adjusted
Aggregate Unit Balance as of the end of the Series 1999-2 Revolving
Period, and the denominator of which is the sum of the numerators used
to determine invested percentages for allocations for all Series of
Investor Notes (and all classes of such Series of Investor Notes),
including all Series of Investor Notes that have been paid in full but
as to which the Amortization Period has not ended, as of the end of the
immediately preceding Business Day.
"SERIES 1999-2 INVESTOR NOTEHOLDER" means, collectively, the
Class A-1 Investor Noteholders and the Class A-2 Investor Noteholders.
"SERIES 1999-2 INVESTOR NOTE OWNER" means, with respect to a
Series 1999-2 Global Note, the Person who is the beneficial owner of an
interest in such Series 1999-2 Global Note, as reflected on the books
of DTC, or on the books of a Person maintaining an account with DTC
(directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of DTC).
"SERIES 1999-2 INVESTOR NOTES" means, collectively, the Class
A-1 Investor Notes and the Class A-2 Investor Notes.
"SERIES 1999-2 JUNIOR PREFERRED MEMBERSHIP INTERESTS" means
the Junior Preferred Membership Interests relating to the Series 1999-2
Investor Notes, if any, issued by the Issuer pursuant to the LLC
Agreement.
"SERIES 1999-2 LEASE RATE CAP" means one or more interest rate
caps, substantially in the form of EXHIBIT D, from a Series 1999-2
Eligible Counterparty.
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"SERIES 1999-2 LIQUID CREDIT ENHANCEMENT DEFICIENCY" means, on
any date of determination, the amount by which the Series 1999-2
Reserve Account Amount is less than the Series 1999-2 Required Reserve
Account Amount.
"SERIES 1999-2 MINIMUM YIELD RATE" means, for any Settlement
Date, a rate per annum equal to the sum of (i) the Series 1999-2
Weighted Average Cost of Funds for such Settlement Date, (ii) 0.225%
and (iii) 0.48%.
"SERIES 1999-2 MONTHLY INTEREST" means, with respect to any
Series 1999-2 Interest Period, the sum of Class A-1 Monthly Interest
and Class A-2 Monthly Interest for such Series 1999-2 Interest Period.
"SERIES 1999-2 MONTHLY RESIDUAL VALUE GAIN" means, for any
Settlement Date, an amount equal to the product of (a) the average
daily Series 1999-2 Invested Percentage during the immediately
preceding Monthly Period and (b) the Monthly Residual Value Gain for
such Settlement Date.
"SERIES 1999-2 NOTE RATE" means the Class A-1 Note Rate or the
Class A-2 Note Rate, as the context may require.
"SERIES 1999-2 NOTE TERMINATION DATE" means the date on which
the Series 1999-2 Investor Notes are fully paid.
"SERIES 1999-2 PREFERRED MEMBER DISTRIBUTION ACCOUNT" means
the account established in respect of the Series 1999-2 Preferred
Membership Interests pursuant to the LLC Agreement.
"SERIES 1999-2 PREFERRED MEMBERS" means the registered holders
of the Series 1999-2 Preferred Membership Interests.
"SERIES 1999-2 PREFERRED MEMBERSHIP INTEREST PURCHASE
AGREEMENT" means, collectively, one or more purchase agreements among
the Issuer, one or more purchasers of the Series 1999-2 Senior
Preferred Membership Interests thereunder, the funding agents of such
purchasers, one or more banks or other financial institutions providing
liquidity funding to such purchasers and the Administrator, as the same
may from time to time be amended, supplemented or otherwise modified in
accordance with its terms, and one or more purchase agreements relating
to the Series 1999-2 Junior Preferred Membership Interests among the
Issuer, one or more purchasers of the Series 1999-2 Junior Preferred
Membership Interests and the Administrator, as the same may from time
to time be amended, supplemented or otherwise modified in accordance
with its terms.
"SERIES 1999-2 PREFERRED MEMBERSHIP INTERESTS" means the
Series 1999-2 Senior Preferred Membership Interests and the Series
1999-2 Junior Preferred Membership Interests, if any.
"SERIES 1999-2 PRINCIPAL COLLECTION SUBACCOUNT" is defined in
Section 5A.1(a).
10
"SERIES 1999-2 PRINCIPAL PAYMENT AMOUNT" means, for any
Settlement Date, an amount equal to the product of (a) the average
daily Series 1999-2 Invested Percentage during the immediately
preceding Monthly Period and (b) the Principal Payment Amount for such
Settlement Date.
"SERIES 1999-2 REQUIRED ASSET AMOUNT" means, as of any date of
determination, the sum of the Series 1999-2 Invested Amount and the
Series 1999-2 Required Overcollateralization Amount as of such date.
"SERIES 1999-2 REQUIRED ENHANCEMENT AMOUNT" means, on any date
of determination, an amount equal to 14.9425% of the Series 1999-2
Initial Invested Amount; PROVIDED, HOWEVER that if on any Settlement
Date (1) the Three Month Average Charge-Off Ratio exceeds 0.50%, (2)
the Twelve Month Average Charge-Off Ratio exceeds 0.25%, (3) the Three
Month Average Residual Value Loss Ratio exceeds 10%, (4) the Twelve
Month Average Residual Value Loss Ratio exceeds 5%, (5) the Three Month
Average Paid-In Advance Loss Ratio exceeds 1.00%, (6) the Twelve Month
Average Paid-In Advance Loss Ratio exceeds 0.50% or (7) the Three Month
Average Delinquency Ratio for any Settlement Date exceeds 4.5%, the
Series 1999-2 Required Enhancement Amount will equal the product of
15.9425% and the Series 1999-2 Initial Invested Amount on such
Settlement Date; PROVIDED, HOWEVER, that, after the declaration or
occurrence of an Amortization Event, the Series 1999-2 Required
Enhancement Amount shall equal the Series 1999-2 Required Enhancement
Amount on the date of the declaration or occurrence of such
Amortization Event.
"SERIES 1999-2 REQUIRED INVESTOR NOTEHOLDERS" means Series
1999-2 Investor Noteholders holding 50% or more of the Series 1999-2
Invested Amount (excluding any Series 1999-2 Investor Notes held by the
Issuer or any Affiliate of the Issuer).
"SERIES 1999-2 REQUIRED LEASE RATE CAP" means one or more
Series 1999-2 Lease Rate Caps having, in the aggregate, a notional
amount on each Payment Date equal to the lesser of (x) the average
daily Series 1999-2 Invested Percentage during the Monthly Period
immediately preceding such Payment Date of the aggregate Lease Balance
of all Fixed Rate Leases allocated to the Lease SUBI Portfolio as of
the last day of the immediately preceding Monthly Period that were not
Fixed Rate Leases when initially allocated to the Lease SUBI Portfolio
or on the Series 1999-2 Closing Date, plus, in the case of all such
Fixed Rate Leases that are Closed-End Leases, the aggregate Stated
Residual Values of the related Leased Vehicles and (y) the sum of the
Series 1999-2 Invested Amount and the aggregate stated liquidation
preference of the Series 1999-2 Preferred Membership Interests on such
Payment Date and an effective strike rate based on the eurodollar rate
set forth therein in effect on the dates set forth therein at the most
equal to the weighted average fixed rate of interest on such Fixed Rate
Leases minus 0.65% per annum.
"SERIES 1999-2 REQUIRED OVERCOLLATERALIZATION AMOUNT" means,
on any date of determination during an Accrual Period, the amount by
which the Series 1999-2 Required Enhancement Amount exceeds the sum of
(a) the Series 1999-2 Reserve Account Amount and (b) the amount on
deposit in the Series 1999-2 Principal Collection
11
Subaccount on such date (excluding any amounts deposited therein
pursuant to Section 5A.2(d) during the Monthly Period commencing after
the first day of such Accrual Period).
"SERIES 1999-2 REQUIRED RESERVE ACCOUNT AMOUNT" means an
amount equal to 2.2538% of the Series 1999-2 Initial Invested Amount.
"SERIES 1999-2 REQUIRED YIELD SUPPLEMENT AMOUNT" means, on any
Settlement Date, the excess, if any, of (a) the Series 1999-2 Yield
Shortfall Amount for such Settlement Date over (b) 70% of the product
of (x) the Series 1999-2 Invested Percentage on such Settlement Date
and (y) the Class X 1999-1B Invested Amount as of such Settlement Date
(after giving effect to any increase thereof on such Settlement Date);
PROVIDED, HOWEVER that upon the occurrence of a Receivable Purchase
Termination Event, the Series 1999-2 Required Yield Supplement Amount
on any Settlement Date will equal the Series 1999-2 Yield Shortfall
Amount for such Settlement Date.
"SERIES 1999-2 RESERVE ACCOUNT" is defined in Section 5A.8(a).
"SERIES 1999-2 RESERVE ACCOUNT AMOUNT" means, on any date of
determination, the amount on deposit in the Series 1999-2 Reserve
Account and available for withdrawal therefrom.
"SERIES 1999-2 RESERVE ACCOUNT SURPLUS" means, on any date of
determination, the amount, if any, by which the Series 1999-2 Reserve
Account Amount exceeds the Series 1999-2 Required Reserve Account
Amount.
"SERIES 1999-2 REVOLVING PERIOD" means the period from and
including the Series 1999-2 Closing Date to but excluding the
commencement of the Series 1999-2 Amortization Period.
"SERIES 1999-2 SENIOR PREFERRED MEMBERSHIP INTERESTS" means
each series of Senior Preferred Membership Interests relating to the
Series 1999-2 Investor Notes issued by the Issuer pursuant to the LLC
Agreement.
"SERIES 1999-2 SERVICING FEE" is defined in Section 5.1.
"SERIES 1999-2 SERVICING FEE PERCENTAGE" is defined in Section
5.1.
"SERIES 1999-2 SETTLEMENT COLLECTION SUBACCOUNT" is defined in
Section 5A.1(a).
"SERIES 1999-2 SUBACCOUNTS" is defined in Section 5A.1(a).
"SERIES 1999-2 WEIGHTED AVERAGE COST OF FUNDS" means, for any
Settlement Date, the product of (a) the quotient of the sum of (i) the
aggregate amount of interest payable on the Series 1999-2 Investor
Notes on such Settlement Date and (ii) the aggregate amount of
dividends that would be payable on the Series 1999-2 Preferred
Membership Interests on such Settlement Date, assuming that dividends
were accumulating thereon at the highest applicable rate under the
terms of such Series 1999-2
12
Preferred Membership Interests, DIVIDED by the sum of (i) the Series
1999-2 Invested Amount as of the first day of the immediately preceding
Series 1999-2 Interest Period and (ii) the aggregate stated liquidation
preference of the Series 1999-2 Preferred Membership Interests as of
such day and (b) a fraction, the numerator of which is 360 and the
denominator of which is the number of days in the Series 1999-2
Interest Period ending on such Settlement Date.
"SERIES 1999-2 WEIGHTED AVERAGE YIELD SHORTFALL" means, for
any Settlement Date, the excess, if any, of (a) the Series 1999-2
Minimum Yield Rate for such Settlement Date over (b) the Series 1999-2
Weighted Average Yield Shortfall Lease Yield for such Settlement Date.
"SERIES 1999-2 WEIGHTED AVERAGE YIELD SHORTFALL LEASE YIELD"
means, for any Settlement Date, the quotient of the sum of the product
with respect to each Series 1999-2 Yield Shortfall Lease of (a) the
actual or implicit finance charge rate applicable to such Series 1999-2
Yield Shortfall Lease and (b) the Net Book Value of the Leased Vehicle
subject to such Series 1999-2 Yield Shortfall Lease as of the last day
of the immediately preceding Monthly Period DIVIDED by the aggregate
Net Book Value of the Leased Vehicles subject to all of the Series
1999-2 Yield Shortfall Leases as of the last day of the immediately
preceding Monthly Period.
"SERIES 1999-2 WEIGHTED AVERAGE YIELD SHORTFALL LIFE" means,
for any Settlement Date, 50% of the weighted (on the basis of Net Book
Value of the related Leased Vehicle) average Assumed Lease Term of the
Series 1999-2 Yield Shortfall Leases, assuming that all scheduled lease
payments are made thereon when scheduled and that the Obligors
thereunder do not elect to convert such Series 1999-2 Yield Shortfall
Leases to Fixed Rate Leases, as of the last day of the immediately
preceding Monthly Period.
"SERIES 1999-2 YIELD SHORTFALL AMOUNT" means, for any
Settlement Date, (i) if the Series 1999-2 Hypothetical Yield Shortfall
Amount for such Settlement Date is less than 70% of the product of the
Series 1999-2 Invested Percentage and the Class X 1999-1B Invested
Amount as of such Settlement Date (after giving effect to any increase
thereof on such Settlement Date), an amount equal to the Series 1999-2
Hypothetical Yield Shortfall Amount and (ii) otherwise, an amount equal
to the product of (x) the Series 1999-2 Weighted Average Yield
Shortfall for such Settlement Date, (y) the Series 1999-2 Invested
Percentage on such Settlement Date of the aggregate Lease Balance of
all Series 1999-2 Yield Shortfall Leases as of the last day of the
immediately preceding Monthly Period and (z) the Series 1999-2 Weighted
Average Yield Shortfall Life for such Settlement Date.
"SERIES 1999-2 YIELD SHORTFALL LEASE" means, as of any
Settlement Date, each Unit Lease that is a Floating Rate Lease with an
actual or implicit finance charge rate of less than the Series 1999-2
Minimum Yield Rate as of the last day of the immediately preceding
Monthly Period.
"SERIES 1999-2 YIELD SUPPLEMENT ACCOUNT" is defined in SECTION
5A.9(a).
13
"SERIES 1999-2 YIELD SUPPLEMENT ACCOUNT AMOUNT" means, on any
date of determination, the amount on deposit in the Series 1999-2 Yield
Supplement Account and available for withdrawal therefrom.
"SERIES 1999-2 YIELD SUPPLEMENT ACCOUNT SURPLUS" means, on any
date of determination, the amount, if any, by which the Series 1999-2
Yield Supplement Account Amount exceeds the Series 1999-2 Required
Yield Supplement Amount.
"SERIES 1999-2 YIELD SUPPLEMENT DEFICIENCY" means, on any date
of determination, the amount by which the Series 1999-2 Yield
Supplement Account Amount is less than the Series 1999-2 Required Yield
Supplement Amount.
"TELERATE PAGE 3750" has the meaning set forth in the
International Swaps Derivatives Association, Inc. 1991 Interest Rate
and Currency Exchange Definitions.
"TOTAL CASH AVAILABLE" means, for any Settlement Date, the
excess, if any, of (a) the sum of (i) the aggregate amount of
Collections allocated to the Series 1999-2 General Collection
Subaccount pursuant to SECTION 5A.2(a) during the immediately preceding
Monthly Period, (ii) an amount equal to the product of the average
daily Series 1999-2 Invested Percentage during such Monthly Period and
the amount of the Unit Repurchase Payments paid by the Servicer and/or
SPV on such Settlement Date, (iii) an amount equal to the product of
the average daily Series 1999-2 Invested Percentage during such Monthly
Period and the amount of the Monthly Servicer Advance made by the
Servicer on such Settlement Date, (iv) an amount equal to the product
of the average daily Series 1999-2 Invested Percentage during such
Monthly Period and the amount withdrawn from the Gain on Sale Account
pursuant to Section 5.2(e) of the Base Indenture on the Transfer Date
immediately preceding such Settlement Date and (v) the investment
income on amounts on deposit in the Series 1999-2 Principal Collection
Subaccount and the Series 1999-2 General Collection Subaccount
transferred to the Series 1999-2 Settlement Collection Subaccount on
such Settlement Date pursuant to SECTION 5A.1(b) over (b) the amount
withdrawn from the Series 1999-2 General Collection Subaccount pursuant
to Section 5A.2(f) during the period commencing on the Period End Date
immediately preceding such Settlement Date to but excluding such
Settlement Date.
"UNRESTRICTED GLOBAL NOTES" is defined in SECTION 6.3.
ARTICLE 2
ARTICLE 5 OF THE BASE INDENTURE
SECTIONS 5.1 through 5.4 of the Base Indenture and each other
Section of Article 5 of the Indenture relating to another Series shall read in
their entirety as provided in the Base Indenture or any applicable
Indenture
Supplement. ARTICLE 5 of the Indenture (except for SECTIONS 5.1 through 5.4
thereof and any portion thereof relating to another Series) shall read in its
entirety as follows and shall be exclusively applicable to the Series 1999-2
Investor Notes:
14
Section 5A.1 ESTABLISHMENT OF SERIES 1999-2 SUBACCOUNTS
(a) The Indenture Trustee shall establish and maintain in the
name of the Indenture Trustee for the benefit of the Series 1999-2 Investor
Noteholders (i) a subaccount of the Collection Account (the "Series 1999-2
Collection Subaccount"); and (ii) three subaccounts of the Series 1999-2
Collection Subaccount: (1) the Series 1999-2 General Collection Subaccount, (2)
the Series 1999-2 Principal Collection Subaccount and (3) the Series 1999-2
Settlement Collection Subaccount (respectively, the "Series 1999-2 General
Collection Subaccount," the "Series 1999-2 Principal Collection Subaccount" and
the "Series 1999-2 Settlement Collection Subaccount"); the accounts established
pursuant to this Section 5A.1(a), collectively, the "Series 1999-2
Subaccounts"), each Series 1999-2 Subaccount to bear a designation indicating
that the funds deposited therein are held for the benefit of the Series 1999-2
Investor Noteholders. The Indenture Trustee shall possess all right, title and
interest in all moneys, instruments, securities and other property on deposit
from time to time in the Series 1999-2 Subaccounts and the proceeds thereof for
the benefit of the Series 1999-2 Investor Noteholders. The Series 1999-2
Subaccounts shall be under the sole dominion and control of the Indenture
Trustee for the benefit of the Series 1999-2 Investor Noteholders.
(a) The Issuer shall instruct the institution maintaining the
Collection Account in writing to invest funds on deposit in the Series 1999-2
Subaccounts at all times in Permitted Investments selected by the Issuer (by
standing instructions or otherwise); provided, however, that funds on deposit in
a Series 1999-2 Subaccounts may be invested together with funds held in other
subaccounts of the Collection Account. Amounts on deposit and available for
investment in the Series 1999-2 General Collection Subaccount shall be invested
by the Indenture Trustee at the written direction of the Issuer in Permitted
Investments that mature, or that are payable or redeemable upon demand of the
holder thereof, on or prior to the Business Day immediately preceding the next
Payment Date. Amounts on deposit and available for investment in the Series
1999-2 Principal Collection Subaccount shall be invested by the Indenture
Trustee at the written direction of the Issuer in Permitted Investments that
mature, or that are payable or redeemable upon demand of the holder thereof, (i)
in the case of any such investment made during the Series 1999-2 Revolving
Period, on or prior to the next Business Day and (ii) in the case of any such
investment made on any day during the Series 1999-2 Amortization Period, on or
prior to the Business Day immediately preceding the next Payment Date. On each
Settlement Date, all interest and other investment earnings (net of losses and
investment expenses) on funds deposited in the Series 1999-2 Principal
Collection Subaccount and the Series 1999-2 General Collection Subaccount shall
be deposited in the Series 1999-2 Settlement Collection Subaccount. The Issuer
shall not direct the Indenture Trustee to dispose of (or permit the disposal of)
any Permitted Investments prior to the maturity thereof to the extent such
disposal would result in a loss of principal of such Permitted Investment. In
the absence of written direction as provided hereunder, all funds on deposit in
the Collection Account shall remain uninvested.
Section 5A.2 ALLOCATIONS WITH RESPECT TO THE SERIES 1999-2
INVESTOR NOTE.
(a) Prior to 1:00 P.M., New York City time, on each Deposit
Date, the Administrator shall direct the Indenture Trustee in writing to
allocate to the Series 1999-2
15
Investor Noteholders and deposit in the Series 1999-2 General Collection
Subaccount an amount equal to the product of the Series 1999-2 Invested
Percentage on such Deposit Date and the Collections deposited into the
Collection Account on such Deposit Date.
(b) On the Series 1999-2 Closing Date, the Indenture Trustee
shall (i) deposit in the Series 1999-2 Settlement Collection Subaccount
$2,021,272 from the proceeds from the sale of the Series 1999-2 Investor Notes
and (ii) deposit the remainder of the proceeds from the sale of the Series
1999-2 Investor Notes in the Series 1999-2 Principal Collection Subaccount.
(c) On each Determination Date, the Administrator shall direct
the Indenture Trustee in writing to allocate to the Series 1999-2 Investor
Noteholders and deposit in the Series 1999-2 Settlement Collection Subaccount on
the immediately succeeding Transfer Date amounts withdrawn from the Gain on Sale
Account on such Transfer Date, in an amount equal to the product of the average
daily Series 1999-2 Invested Percentage during the immediately preceding Monthly
Period and the amount withdrawn from the Gain on Sale Account pursuant to
Section 5.2(e) of the Base Indenture on such Transfer Date.
(d) On each Determination Date, the Administrator shall direct
the Indenture Trustee in writing to allocate to the Series 1999-2 Investor
Noteholders and deposit in the Series 1999-2 Settlement Collection Subaccount on
the immediately succeeding Settlement Date the following amounts:
(i) any Unit Repurchase Payments made by the Servicer and/or
SPV, in an amount equal to the product of the average daily Series
1999-2 Invested Percentage during the immediately preceding Monthly
Period and the amount of such Unit Repurchase Payments;
(ii) the Monthly Servicer Advance made by the Servicer, in an
amount equal to the product of the average daily Series 1999-2 Invested
Percentage during the immediately preceding Monthly Period and the
amount of such Monthly Servicer Advance;
(iii) payments made under the Lease Rate Caps maintained by
the Issuer pursuant to SECTIONS 5A.11(a) and (b), in an amount equal to
the product of the average daily Series 1999-2 Invested Percentage
during the immediately preceding Monthly Period and the amount of such
payments; and
(iv) all payments made to the Indenture Trustee under the
Series 1999-2 Lease Rate Cap.
(e) During the Series 1999-2 Revolving Period, the
Administrator may direct the Indenture Trustee in writing on any Business Day to
withdraw amounts on deposit in the Series 1999-2 Principal Collection Subaccount
for either of the following purposes:
(i) if such Business Day is an Additional Closing Date, to pay
all or a portion of the Transferred Asset Payment due on such
Additional Closing Date pursuant to the Transfer Agreement; or
16
(ii) to reduce the Invested Amount of any Series of Investor
Notes.
(f) Prior to the occurrence of a Potential Amortization Event
or an Amortization Event, on any Business Day during the period commencing on a
Period End Date to but excluding the next succeeding Settlement Date on which
the Administrator is able to determine the amounts to be distributed from the
Series 1999-2 Settlement Collection Subaccount pursuant to paragraphs (i)
through (xi) of Section 5A.4(c) on such Settlement Date (assuming for the
purposes of determining the Dividend Amount for the Payment Date falling on such
Settlement Date that the Dividend Amount will equal the Estimated Dividend
Amount for such Business Day) and any amounts owing in respect of the Series
1999-2 Preferred Membership Interests under the Series 1999-2 Preferred
Membership Interest Purchase Agreement on such Settlement Date, the
Administrator may direct the Indenture Trustee in writing to withdraw from the
Series 1999-2 General Collection Subaccount and pay to the Issuer the Series
1999-2 Available Excess Collections Amount for such Business Day.
Section 5A.3 DETERMINATION OF INTEREST.
(a) Chase is hereby appointed Calculation Agent for the
purpose of determining the Series 1999-2 Note Rates for each Series 1999-2
Interest Period. On each LIBOR Determination Date, the Calculation Agent shall
determine the Series 1999-2 Note Rate for each Class of Series 1999-2 Investor
Notes for the next succeeding Series 1999-2 Interest Period and deliver notice
of such Series 1999-2 Note Rates to the Indenture Trustee. On each LIBOR
Determination Date, the Indenture Trustee shall deliver to the Administrator
notice of the Series 1999-2 Note Rate for each Class of Series 1999-2 Investor
Notes for the next succeeding Series 1999-2 Interest Period.
(b) Until the Administrator shall give the Indenture Trustee
written notice that neither Class of the Series 1999-2 Investor Notes is listed
on the Luxembourg Stock Exchange, the Indenture Trustee shall, or shall instruct
the Calculation Agent to, cause (i) the Series 1999-2 Note Rate applicable to
each Class of the Series 1999-2 Investor Notes for the next succeeding Series
1999-2 Interest Period, the number of days in such Series 1999-2 Interest
Period, the Payment Date for such Series 1999-2 Interest Period and the amount
of interest payable on each Class of Series 1999-2 Investor Notes on such
Payment Date to be (A) communicated to DTC, Euroclear, Cedelbank, the Paying
Agent in Luxembourg and the Luxembourg Stock Exchange no later than the Business
Day immediately following each LIBOR Determination Date and (B) published in the
Authorized Newspaper as soon as possible after its determination.
(c) On each Determination Date, the Administrator shall
determine the excess, if any (the "Interest Shortfall"), of (i) the sum of (A)
the Series 1999-2 Monthly Interest for the Series 1999-2 Interest Period ending
on the next succeeding Payment Date and (B) the amount of any unpaid Interest
Shortfall, as of the preceding Payment Date (together with any Additional
Interest on such Interest Shortfall) over (ii) the amount which will be
available to pay such amount in accordance with Section 5A.4(c) on such Payment
Date. If the Interest Shortfall with respect to any Payment Date is greater than
zero, payments of interest to the Series 1999-2 Investor Noteholders will be
reduced on a pro rata basis by the amount of the Interest Shortfall. The portion
of the Interest Shortfall allocable to each Class of Series 1999-2 Investor
Notes shall be referred to as the "Class A-1 Interest Shortfall Amount" and the
"Class A-2 Interest Shortfall
17
Amount", respectively. An additional amount of interest ("Additional Interest")
shall accrue on the Class A-1 Interest Shortfall Amount and the Class A-2
Interest Shortfall Amount for each Series 1999-2 Interest Period at the
applicable Series 1999-2 Note Rate for such Series 1999-2 Interest Period. Until
the Administrator shall give the Indenture Trustee written notice that neither
Class of the Series 1999-2 Investor Notes is listed on the Luxembourg Stock
Exchange, the Indenture Trustee shall, or shall instruct the Calculation Agent
to, notify the Luxembourg Stock Exchange if, based solely on the information
contained in the Monthly Settlement Statement with respect to the Series 1999-2
Investor Notes, the amount of interest to be paid on any Class of the Series
1999-2 Investor Notes on any Payment Date is less than the amount payable
thereon on such Payment Date, the amount of such deficit and the amount of
interest that will accrue on such deficit during the next succeeding Series
1999-2 Interest Period by the Business Day prior to such Payment Date.
(d) All communications by or on behalf of the Indenture
Trustee to the Luxembourg Stock Exchange pursuant to this Section 5A.3 shall be
sent by facsimile to 352 47 793 6238, attention: ▇▇▇▇ ▇▇▇▇▇▇▇.
Section 5A.4 MONTHLY APPLICATION OF COLLECTIONS.
(a) On each Settlement Date, the Administrator shall direct
the Indenture Trustee in writing to withdraw from the Series 1999-2 General
Collection Subaccount and allocate to the Series 1999-2 Settlement Collection
Subaccount an amount equal to Total Cash Available for such Settlement Date
(less an amount equal to the investment income from the Series 1999-2 General
Collection Subaccount and the Series 1999-2 Principal Collection Subaccount
transferred to the Series 1999-2 Settlement Collection Subaccount pursuant to
Section 5A.1(b)).
(b) (i) If the Administrator determines that the aggregate
amount distributable from the Series 1999-2 Settlement Collection Subaccount
pursuant to paragraphs (i) through (ix) of Section 5A.4(c) on any Payment Date
exceeds the Total Cash Available for such Payment Date (the "Deficiency"), the
Administrator shall notify the Indenture Trustee thereof in writing at or before
10:00 a.m., New York City time, on the Business Day immediately preceding such
Payment Date, and the Indenture Trustee shall, in accordance with such notice,
by 11:00 a.m., New York City time, on such Payment Date, withdraw from the
Series 1999-2 Reserve Account and deposit in the Series 1999-2 Settlement
Collection Subaccount an amount equal to the least of (x) such Deficiency, (y)
the product of the average daily Series 1999-2 Invested Percentage during the
immediately preceding Monthly Period and Aggregate Net Lease Losses for such
Monthly Period and (z) the Series 1999-2 Reserve Account Amount and, to the
extent that such amount is less than the Deficiency, withdraw from the Series
1999-2 Yield Supplement Account and deposit in the Series 1999-2 Settlement
Collection Subaccount an amount equal to the lesser of the amount of such
insufficiency and the Series 1999-2 Yield Supplement Account Amount. If the
Deficiency with respect to any Payment Date exceeds the amounts to be withdrawn
from the Series 1999-2 Reserve Account and the Series 1999-2 Yield Supplement
Account pursuant to the immediately preceding sentence, the Administrator shall
instruct the Indenture Trustee in writing at or before 10:00 a.m., New York City
time, on the Business Day immediately preceding such Payment Date, and the
Indenture Trustee shall, in accordance with such notice, by 11:00 a.m., New York
City time, on such Payment Date, withdraw from the Series 1999-2
18
Reserve Account and deposit in the Series 1999-2 Settlement Collection
Subaccount an amount equal to the lesser of (x) the remaining portion of the
Deficiency and (y) the Series 1999-2 Reserve Account Amount (after giving effect
to the withdrawal described in the immediately preceding sentence).
(ii) If the Administrator determines that (A) the amount to be
deposited in the Series 1999-2 Distribution Account in accordance with SECTION
5A.4(c)(ix) and paid to the Class A-1 Investor Noteholders pursuant to SECTION
5A.6 on the Class A-1 Final Maturity Date is less than the Class A-1 Invested
Amount or (B) the amount to be deposited in the Series 1999-2 Distribution
Account in accordance with SECTION 5A.4(c)(ix) and paid to the Class A-2
Investor Noteholders pursuant to SECTION 5A.6 on the Class A-2 Final Maturity
Date is less than the Class A-2 Invested Amount, the Administrator shall notify
the Indenture Trustee thereof in writing at or before 10:00 a.m., New York City
time, on the Business Day immediately preceding such Final Maturity Date, and
the Indenture Trustee shall, in accordance with such notice, by 11:00 a.m., New
York City time, on such Final Maturity Date, withdraw from the Series 1999-2
Reserve Account and deposit in the Series 1999-2 Distribution Account an amount
equal to the lesser of such insufficiency and the Series 1999-2 Reserve Account
Amount (after giving effect to any withdrawal therefrom pursuant to SECTION
5A.4(b)(i) on such Final Maturity Date). In addition, if the Series 1999-2
Reserve Account Amount is less than such insufficiency on the Class A-2 Final
Maturity Date, the Administrator shall notify the Indenture Trustee thereof in
writing at or before 10:00 a.m., New York City time, on the Business Day
immediately preceding the Class A-2 Final Maturity Date, and the Indenture
Trustee shall, in accordance with such notice, by 11:00 a.m., New York City
time, on the Class A-2 Final Maturity Date, withdraw from the Series 1999-2
Yield Supplement Account and deposit in the Series 1999-2 Distribution Account
an amount equal to the lesser of such remaining insufficiency and the Series
1999-2 Yield Supplement Account Amount (after giving effect to any withdrawal
therefrom pursuant to SECTION 5A.4(b)(i) on the Class A-2 Final Maturity Date).
(c) On each Payment Date, based solely on the information
contained in the Monthly Settlement Statement with respect to Series 1999-2
Investor Notes, the Indenture Trustee shall apply the following amounts
allocated to, or deposited in, the Series 1999-2 Settlement Collection
Subaccount on such Payment Date in the following order of priority:
(i) to SPV, an amount equal to the Series 1999-2 Excess Fleet
Receivable Amount, if any, for such Payment Date;
(ii) to the Gain On Sale Account, an amount equal to the
Series 1999-2 Monthly Residual Value Gain, if any, for such Payment
Date;
(iii) to the Servicer, an amount equal to the product of the
Monthly Servicer Advance Reimbursement Amount for such Payment Date and
the average daily Series 1999-2 Invested Percentage during the
immediately preceding Monthly Period;
(iv) if VMS is not the Servicer, to the Servicer, an amount
equal to the Series 1999-2 Servicing Fee for the Series 1999-2 Interest
Period ending on such Payment Date;
19
(v) to the Series 1999-2 Distribution Account, an amount equal
to the Series 1999-2 Monthly Interest payable on such Payment Date plus
the amount of any unpaid Interest Shortfall, as of the preceding
Payment Date, together with any Additional Interest on such Interest
Shortfall (such amount, the "Monthly Interest Payment");
(vi) if VMS is the Servicer, to the Servicer, an amount equal
to the Series 1999-2 Servicing Fee for the Series 1999-2 Interest
Period ending on such Payment Date;
(vii) to the Administrator, an amount equal to the Series
1999-2 Administrator Fee for the Series 1999-2 Interest Period ending
on such Payment Date;
(viii) other than during a Lockout Period, to the Series
1999-2 Preferred Member Distribution Account, an amount equal to the
Dividend Amount for such Payment Date;
(ix) (A) on any Payment Date immediately succeeding a Monthly
Period falling in the Series 1999-2 Revolving Period, to the Series
1999-2 Principal Collection Subaccount, an amount equal to the Series
1999-2 Allocated Asset Amount Deficiency, if any, on such Payment Date,
(B) on the earlier of (x) the second Payment Date following the March
2001 Period End Date or (y) the first Payment Date following the
occurrence of an Amortization Event, to the Series 1999-2 Distribution
Account, an amount equal to the lesser of the Series 1999-2 Principal
Payment Amount for such Payment Date and the Series 1999-2 Invested
Amount on such Payment Date and (C) on any Payment Date on and after
the Series 1999-2 Note Termination Date, to the Series 1999-2 Preferred
Member Distribution Account, an amount equal to the Series 1999-2
Principal Payment Amount for such Payment Date (or, on the Series
1999-2 Note Termination Date, the portion thereof not deposited into
the Series 1999-2 Distribution Account); provided, however that on or
after the Series 1999-2 Note Termination Date during a Lockout Period,
the Series 1999-2 Principal Payment Amount for such Payment Date (or,
on the Series 1999-2 Note Termination Date, the portion thereof not
deposited into the Series 1999-2 Distribution Account) shall be applied
by the Indenture Trustee in accordance with Section 5.4(d) of the Base
Indenture;
(x) to the Series 1999-2 Reserve Account, to the extent that a
Series 1999-2 Liquid Credit Enhancement Deficiency exists or, on any
Payment Date immediately succeeding a Monthly Period falling in the
Series 1999-2 Amortization Period, to the extent that a Series 1999-2
Allocated Asset Amount Deficiency exists, an amount equal to the
greater of such deficiencies;
(xi) to the Series 1999-2 Yield Supplement Account, to the
extent that a Series 1999-2 Yield Supplement Deficiency exists (or,
will exist after giving effect to any reduction in the 1999-2B Invested
Amount on such Payment Date), an amount equal to such deficiency; and
(xii) to the Series 1999-2 Preferred Member Distribution
Account, an amount equal to the balance remaining in the Series 1999-2
Settlement Collection Subaccount.
20
Section 5A.5 PAYMENT OF MONTHLY INTEREST PAYMENT.
On each Payment Date, based solely on the information
contained in the Monthly Settlement Statement with respect to the Series 1999-2
Investor Notes, the Indenture Trustee shall, in accordance with SECTION 6.1 of
the Base Indenture, pay to the Series 1999-2 Investor Noteholders, from the
Series 1999-2 Distribution Account the Monthly Interest Payment to the extent of
the amount deposited in the Series 1999-2 Distribution Account for the payment
of interest pursuant to SECTION 5A.4(c)(v).
Section 5A.6 PAYMENT OF PRINCIPAL.
(a) The principal amount of each Class of the Series 1999-2
Investor Notes shall be due and payable on the Final Maturity Date with respect
to such Class.
(b) On each Payment Date on which a deposit is made to the
Series 1999-2 Distribution Account pursuant to Section 5A.4(c)(ix) or an amount
is deposited in the Series 1999-2 Distribution Account pursuant to Section
5A.4(b)(ii), based solely on the information contained in the Monthly Settlement
Statement with respect to Series 1999-2 Investor Notes, the Indenture Trustee
shall, in accordance with Section 6.1 of the Base Indenture, pay during the
Series 1999-2 Amortization Period, pro rata to each Class A-1 Investor
Noteholder from the Series 1999-2 Distribution Account the amount deposited
therein pursuant to Section 5A.4(c)(ix) and Section 5A.4(b)(ii) in order to pay
the Class A-1 Invested Amount, and thereafter pro rata to each Class A-2
Investor Noteholder from the Series 1999-2 Distribution Account the amount
deposited therein pursuant to Section 5A.4(c)(ix) and Section 5A.4(b)(ii) in
order to pay the Class A-2 Invested Amount; PROVIDED HOWEVER that on any Payment
Date falling after the occurrence of an Amortization Event the Indenture Trustee
shall pay pro rata to each Series 1999-2 Investor Noteholder from the Series
1999-2 Distribution Account the amounts deposited therein pursuant to Section
5A.4(c)(ix) and Section 5A.4(b)(ii) in order to pay the Class A-1 Invested
Amount and the Class A-2 Invested Amount.
(c) The Indenture Trustee shall notify the Person in whose
name a Series 1999-2 Investor Note is registered at the close of business on the
Record Date preceding the Payment Date on which the Issuer expects that the
final installment of principal of and interest on such Series 1999-2 Investor
Note will be paid. Such notice shall be made at the expense of the Administrator
and shall be mailed within three (3) Business Days of receipt of a Monthly
Settlement Statement indicating that such final payment will be made and shall
specify that such final installment will be payable only upon presentation and
surrender of such Series 1999-2 Investor Note and shall specify the place where
such Series 1999-2 Investor Note may be presented and surrendered for payment of
such installment. Notices in connection with redemptions of Series 1999-2
Investor Notes shall be (i) transmitted by facsimile to Series 1999-2 Investor
Noteholders holding Global Notes and (ii) sent by registered mailed to Series
1999-2 Investor Noteholders holding Definitive Notes and shall specify that such
final installment will be payable only upon presentation and surrender of such
Series 1999-2 Investor Note and shall specify the place where such Series 1999-2
Investor Note may be presented and surrendered for payment of such installment.
21
Section 5A.7 THE ADMINISTRATOR'S FAILURE TO INSTRUCT THE
INDENTURE TRUSTEE TO MAKE A DEPOSIT OR PAYMENT.
When any payment or deposit hereunder or under any other
Transaction Document is required to be made by the Indenture Trustee at or prior
to a specified time, the Administrator shall deliver any applicable written
instructions with respect thereto reasonably in advance of such specified time.
If the Administrator fails to give notice or instructions to make any payment
from or deposit into the Collection Account or any subaccount thereof required
to be given by the Administrator, at the time specified herein or in any other
Transaction Document (after giving effect to applicable grace periods), the
Indenture Trustee shall make such payment or deposit into or from the Collection
Account or such subaccount without such notice or instruction from the
Administrator; PROVIDED that the Administrator, upon request of the Indenture
Trustee, promptly provides the Indenture Trustee with all information necessary
to allow the Indenture Trustee to make such a payment or deposit in the event
that the Indenture Trustee shall take or refrain from taking action pursuant to
this SECTION 5A.7, the Administrator shall, by 5:00 p.m., New York City time, on
any day the Indenture Trustee makes a payment or deposit based on information or
direction from the Administrator, provide (i) written confirmation of any such
direction and (ii) written confirmation of all information used by the
Administrator in giving any such direction.
Section 5A.8 SERIES 1999-2 RESERVE ACCOUNT.
(a) The Indenture Trustee shall establish and maintain in the
name of the Indenture Trustee for the benefit of the Series 1999-2 Investor
Noteholders an account (the "Series 1999-2 Reserve Account"), bearing a
designation clearly indicating that the funds deposited therein are held for the
benefit of the Series 1999-2 Investor Noteholders. The Series 1999-2 Reserve
Account shall be an Eligible Deposit Account; provided that, if at any time such
account is not an Eligible Deposit Account, then the Indenture Trustee shall,
within 30 days of obtaining knowledge of such reduction, establish a new Series
1999-2 Reserve Account that is an Eligible Deposit Account. If the Indenture
Trustee establishes a new Series 1999-2 Reserve Account, it shall transfer all
cash and investments from the non-qualifying Series 1999-2 Reserve Account into
the new Series 1999-2 Reserve Account. Initially, the Series 1999-2 Reserve
Account will be established with The Chase Manhattan Bank.
(b) The Issuer may instruct the institution maintaining the
Series 1999-2 Reserve Account in writing to invest funds on deposit in the
Series 1999-2 Reserve Account from time to time in Permitted Investments
selected by the Issuer (by standing instructions or otherwise); provided,
however, that any such investment shall mature not later than the Business Day
prior to the Payment Date following the date on which such funds were received.
All such Permitted Investments will be credited to the Series 1999-2 Reserve
Account and any such Permitted Investments that constitute (i) Physical Property
(and that is not either a United States Security Entitlement or a Security
Entitlement) shall be delivered to the Indenture Trustee in accordance with
paragraph (a) of the definition of "Delivery" and shall be held by the Indenture
Trustee pending maturity or disposition; (ii) United States Security
Entitlements or Security Entitlements shall be Controlled by the Indenture
Trustee pending maturity or disposition; and (iii) Uncertificated Securities
(and not United States Security Entitlements) shall be delivered to the
Indenture Trustee in accordance with paragraph (b) of the definition of
"Delivery" and shall
22
be maintained by the Indenture Trustee pending maturity or disposition. The
Indenture Trustee shall, at the direction and expense of the Administrator, take
such additional action as is required to maintain the Indenture Trustee's
security interest in the Permitted Investments credited to the Series 1999-2
Reserve Account. In absence of written direction as provided hereunder, funds on
deposit in the Series 1999-2 Reserve Account shall remain uninvested.
(c) All interest and earnings (net of losses and investment
expenses) paid on funds on deposit in the Series 1999-2 Reserve Account shall be
deemed to be on deposit and available for distribution.
(d) If there is a Series 1999-2 Reserve Account Surplus on any
Settlement Date, the Administrator may notify the Indenture Trustee thereof in
writing and instruct the Indenture Trustee to withdraw from the Series 1999-2
Reserve Account and deposit in the Series 1999-2 Preferred Member Distribution
Account, and the Indenture Trustee shall withdraw from the Series 1999-2 Reserve
Account and deposit in the Series 1999-2 Preferred Member Distribution Account,
so long as no Series 1999-2 Allocated Asset Amount Deficiency exists or would
result therefrom, an amount up to the lesser of (i) such Series 1999-2 Reserve
Account Surplus on such Business Day and (ii) the Series 1999-2 Reserve Account
Amount on such Business Day.
(e) Amounts will be withdrawn from the Series 1999-2 Reserve
Account in accordance with Section 5A.4(b).
(f) In order to secure and provide for the repayment and
payment of the Issuer Obligations with respect to the Series 1999-2 Investor
Notes, the Issuer hereby grants a security interest in and assigns, pledges,
grants, transfers and sets over to the Indenture Trustee, for the benefit of the
Series 1999-2 Investor Noteholders, all of the Issuer's right, title and
interest in and to the following (whether now or hereafter existing or
acquired): (i) the Series 1999-2 Reserve Account, including any security
entitlement thereto; (ii) all funds on deposit therein from time to time; (iii)
all certificates and instruments, if any, representing or evidencing any or all
of the Series 1999-2 Reserve Account or the funds on deposit therein from time
to time; (iv) all investments made at any time and from time to time with monies
in the Series 1999-2 Reserve Account, whether constituting securities,
instruments, general intangibles, investment property, financial assets or other
property; (v) all interest, dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect of or in
exchange for the Series 1999-2 Reserve Account, the funds on deposit therein
from time to time or the investments made with such funds; and (vi) all proceeds
of any and all of the foregoing, including, without limitation, cash. The
Indenture Trustee shall possess all right, title and interest in all funds on
deposit from time to time in the Series 1999-2 Reserve Account and in all
proceeds thereof and shall be the only person authorized to originate
entitlement orders in respect of the Series 1999-2 Reserve Account. The Series
1999-2 Reserve Account shall be under the sole dominion and control of the
Indenture Trustee for the benefit of the Series 1999-2 Investor Noteholders. The
Indenture Trustee and the Series 1999-2 Investor Noteholders shall have no
interest in any amounts withdrawn from the Series 1999-2 Reserve Account and
deposited in the Series 1999-2 Preferred Member Distribution Account.
23
(g) On the first Payment Date after the Series 1999-2 Note
Termination Date on which the sum of (a) the Series 1999-2 Reserve Account
Amount, (b) the Series 1999-2 Yield Supplement Account Amount and (c) the amount
available to be deposited in the Series 1999-2 Preferred Member Distribution
Account in accordance with Section 5A.4(c)(ix) is at least equal to the
aggregate stated liquidation preference of the Series 1999-2 Preferred
Membership Interests and on any Payment Date thereafter, the Indenture Trustee,
acting in accordance with the written instructions of the Administrator shall
withdraw from the Series 1999-2 Reserve Account all amounts on deposit therein
for deposit in the Series 1999-2 Preferred Member Distribution Account.
Section 5A.9 SERIES 1999-2 YIELD SUPPLEMENT ACCOUNT.
(a) The Indenture Trustee shall establish and maintain in the
name of the Indenture Trustee for the benefit of the Series 1999-2 Investor
Noteholders an account (the "Series 1999-2 Yield Supplement Account"), bearing a
designation clearly indicating that the funds deposited therein are held for the
benefit of the Series 1999-2 Investor Noteholders. The Series 1999-2 Yield
Supplement Account shall be an Eligible Deposit Account; provided that, if at
any time such account is not an Eligible Deposit Account, then the Indenture
Trustee shall, within 30 days of obtaining knowledge of such reduction,
establish a new Series 1999-2 Yield Supplement Account that is an Eligible
Deposit Account. If the Indenture Trustee establishes a new Series 1999-2 Yield
Supplement Account, it shall transfer all cash and investments from the
non-qualifying Series 1999-2 Yield Supplement Account into the new Series 1999-2
Yield Supplement Account. Initially, the Series 1999-2 Yield Supplement Account
will be established with The Chase Manhattan Bank.
(b) The Issuer may instruct the institution maintaining the
Series 1999-2 Yield Supplement Account in writing to invest funds on deposit in
the Series 1999-2 Yield Supplement Account from time to time in Permitted
Investments selected by the Issuer (by standing instructions or otherwise);
provided, however, that any such investment shall mature not later than the
Business Day prior to the Payment Date following the date on which such funds
were received. All such Permitted Investments will be credited to the Series
1999-2 Yield Supplement Account and any such Permitted Investments that
constitute (i) Physical Property (and that is not either a United States
Security Entitlement or a Security Entitlement) shall be delivered to the
Indenture Trustee in accordance with paragraph (a) of the definition of
"Delivery" and shall be held by the Indenture Trustee pending maturity or
disposition; (ii) United States Security Entitlements or Security Entitlements
shall be Controlled by the Indenture Trustee pending maturity or disposition;
and (iii) Uncertificated Securities (and not United States Security
Entitlements) shall be delivered to the Indenture Trustee in accordance with
paragraph (b) of the definition of "Delivery" and shall be maintained by the
Indenture Trustee pending maturity or disposition. The Indenture Trustee shall,
at the direction and expense of the Administrator, take such additional action
as is required to maintain the Indenture Trustee's security interest in the
Permitted Investments credited to the Series 1999-2 Yield Supplement Account. In
absence of written direction as provided hereunder, funds on deposit in the
Series 1999-2 Yield Supplement Account shall remain uninvested.
24
(c) All interest and earnings (net of losses and investment
expenses) paid on funds on deposit in the Series 1999-2 Yield Supplement Account
shall be deemed to be on deposit and available for distribution.
(d) If there is a Series 1999-2 Yield Supplement Account
Surplus on any Settlement Date, the Administrator may notify the Indenture
Trustee thereof in writing and request the Indenture Trustee to withdraw from
the Series 1999-2 Yield Supplement Account and deposit in the Series 1999-2
Preferred Member Distribution Account, and the Indenture Trustee shall withdraw
from the Series 1999-2 Yield Supplement Account and deposit in the Series 1999-2
Preferred Member Distribution Account an amount up to the lesser of (i) such
Series 1999-2 Yield Supplement Account Surplus on such Business Day and (ii) the
Series 1999-2 Yield Supplement Account Amount on such Business Day.
(e) Amounts will be withdrawn from the Series 1999-2 Yield
Supplement Account in accordance with Section 5A.4(b).
(f) In order to secure and provide for the repayment and
payment of the Issuer Obligations with respect to the Series 1999-2 Investor
Notes, the Issuer hereby grants a security interest in and assigns, pledges,
grants, transfers and sets over to the Indenture Trustee, for the benefit of the
Series 1999-2 Investor Noteholders, all of the Issuer's right, title and
interest in and to the following (whether now or hereafter existing or
acquired): (i) the Series 1999-2 Yield Supplement Account, including any
security entitlement thereto; (ii) all funds on deposit therein from time to
time; (iii) all certificates and instruments, if any, representing or evidencing
any or all of the Series 1999-2 Yield Supplement Account or the funds on deposit
therein from time to time; (iv) all investments made at any time and from time
to time with monies in the Series 1999-2 Yield Supplement Account, whether
constituting securities, instruments, general intangibles, investment property,
financial assets or other property; (v) all interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for the Series 1999-2 Yield
Supplement Account, the funds on deposit therein from time to time or the
investments made with such funds; and (vi) all proceeds of any and all of the
foregoing, including, without limitation, cash. The Indenture Trustee shall
possess all right, title and interest in all funds on deposit from time to time
in the Series 1999-2 Yield Supplement Account and in all proceeds thereof and
shall be the only person authorized to originate entitlement orders in respect
of the Series 1999-2 Yield Supplement Account. The Series 1999-2 Yield
Supplement Account shall be under the sole dominion and control of the Indenture
Trustee for the benefit of the Series 1999-2 Investor Noteholders. The Indenture
Trustee and the Series 1999-2 Investor Noteholders shall have no interest in any
amounts withdrawn from the Series 1999-2 Yield Supplement Account and deposited
in the Series 1999-2 Preferred Member Distribution Account.
(g) On the first Payment Date after the Series 1999-2 Note
Termination Date on which the sum of (a) the Series 1999-2 Reserve Account
Amount, (b) the Series 1999-2 Yield Supplement Account Amount and (c) the amount
available to be deposited in the Series 1999-2 Preferred Member Distribution
Account in accordance with Section 5A.4(c)(ix) is at least equal to the
aggregate stated liquidation preference of the Series 1999-2 Preferred
Membership Interests and on any Payment Date thereafter, the Indenture Trustee,
acting in accordance with the written instructions of the Administrator shall
withdraw from the Series 1999-2 Yield
25
Supplement Account all amounts on deposit therein for deposit in the Series
1999-2 Preferred Member Distribution Account.
Section 5A.10 SERIES 1999-2 DISTRIBUTION ACCOUNT.
(a) The Indenture Trustee shall establish and maintain in the
name of the Indenture Trustee for the benefit of the Series 1999-2 Investor
Noteholders an account (the "Series 1999-2 Distribution Account"), bearing a
designation clearly indicating that the funds deposited therein are held for the
benefit of the Series 1999-2 Investor Noteholders. The Series 1999-2
Distribution Account shall be an Eligible Deposit Account; provided that, if at
any time such account is not an Eligible Deposit Account, then the Indenture
Trustee shall, within 30 days of obtaining knowledge of such reduction,
establish a new Series 1999-2 Distribution Account that is an Eligible Deposit
Account. If the Indenture Trustee establishes a new Series 1999-2 Distribution
Account, it shall transfer all cash and investments from the non-qualifying
Series 1999-2 Distribution Account into the new Series 1999-2 Distribution
Account. Initially, the Series 1999-2 Distribution Account will be established
with The Chase Manhattan Bank.
(b) In order to secure and provide for the repayment and
payment of the Issuer Obligations with respect to the Series 1999-2 Investor
Notes, the Issuer hereby grants a security interest in and assigns, pledges,
grants, transfers and sets over to the Indenture Trustee, for the benefit of the
Series 1999-2 Investor Noteholders, all of the Issuer's right, title and
interest in and to the following (whether now or hereafter existing or
acquired): (i) the Series 1999-2 Distribution Account, including any security
entitlement thereto; (ii) all funds on deposit therein from time to time; (iii)
all certificates and instruments, if any, representing or evidencing any or all
of the Series 1999-2 Distribution Account or the funds on deposit therein from
time to time; (iv) all interest, dividends, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect of or
in exchange for the Series 1999-2 Distribution Account, the funds on deposit
therein from time to time; and (v) all proceeds of any and all of the foregoing,
including, without limitation, cash. The Indenture Trustee shall possess all
right, title and interest in all funds on deposit from time to time in the
Series 1999-2 Distribution Account and in all proceeds thereof and shall be the
only person authorized to originate entitlement orders in respect of the Series
1999-2 Distribution Account. The Series 1999-2 Distribution Account shall be
under the sole dominion and control of the Indenture Trustee for the benefit of
the Series 1999-2 Investor Noteholders.
Section 5A.11 LEASE RATE CAPS.
(a) The Issuer shall have obtained on the Series 1999-2
Closing Date and shall thereafter maintain one or more interest rate caps, each
from a Series 1999-2 Eligible Counterparty, having, in the aggregate, a notional
amount on the Series 1999-2 Closing Date at least equal to the aggregate Lease
Balance of all Fixed Rate Leases allocated to the Lease SUBI Portfolio as of the
Series 1999-2 Closing Date, plus, in the case of all such Fixed Rate Leases that
are Closed-End Leases, the aggregate Stated Residual Values of the related
Leased Vehicles and on each Payment Date thereafter at least equal to the
aggregate scheduled Lease Balance of all such Fixed Rate Leases as of the last
day of the Monthly Period immediately preceding such Payment Date, plus, in the
case of all such Fixed Rate Leases that are Closed-End Leases, the aggregate
Stated Residual Values of the related Leased Vehicles, and an effective strike
rate
26
based on the eurodollar rate set forth therein in effect on the dates set
forth therein at the most equal to the weighted average fixed rate of interest
on such Fixed Rate Leases minus 0.65% per annum.
(b) On or prior to the date that any Fixed Rate Lease is
allocated to the Lease SUBI Portfolio on or after the Series 1999-2 Closing
Date, the Issuer shall have obtained and shall thereafter maintain an interest
rate cap from a Series 1999-2 Eligible Counterparty having a notional amount
equal to the initial Lease Balance of such Fixed Rate Lease, plus, in the case
of a Closed-End Lease, the Stated Residual Value of the related Leased Vehicle
and on each Payment Date thereafter at least equal to the scheduled Lease
Balance of such Fixed Rate Lease as of the last day of the Monthly Period
immediately preceding such Payment Date, plus, in the case of a Closed-End
Lease, the Stated Residual Value of the related Leased Vehicle and an effective
strike rate based on the eurodollar rate set forth therein in effect on the
dates set forth therein at the most equal to the fixed rate of interest on such
Fixed Rate Lease minus 0.65% per annum.
(c) The Issuer may obtain an interest rate cap from a Series
1999-2 Eligible Counterparty in respect of any Fixed Rate Leases allocated to
the Lease SUBI Portfolio that was not a Fixed Rate Lease when initially
allocated to the Lease SUBI Portfolio or on the Series 1999-2 Closing Date
having a notional amount equal to the Lease Balance of such Fixed Rate Lease as
of the last day of the Monthly Period immediately preceding the date as of which
such Lease became a Fixed Rate Lease, plus, in the case of a Closed-End Lease,
the Stated Residual Value of the related Leased Vehicle and on each Payment Date
thereafter at least equal to the scheduled Lease Balance of such Fixed Rate
Lease as of the last day of the Monthly Period immediately preceding such
Payment Date, plus, in the case of a Closed-End Lease, the Stated Residual Value
of the related Leased Vehicle and an effective strike rate based on the
eurodollar rate set forth therein in effect on the dates set forth therein at
the most equal to the fixed rate of interest on such Fixed Rate Lease minus
0.65% per annum. If the Issuer obtains an interest rate cap in respect of any
Fixed Rate Lease satisfying the requirements of this Section 5A.11(c), it shall
maintain such interest rate cap.
(d) The Issuer shall have obtained on the Series 1999-2
Closing Date and shall thereafter maintain the Series 1999-2 Required Lease Rate
Cap.
(e) If the short-term credit rating of any provider of an
interest rate cap required to be obtained and maintained by the Issuer pursuant
to this Section 5A.11 falls below A-1+ by Standard & Poor's or P-1 by ▇▇▇▇▇'▇ or
the long-term unsecured credit rating of any such provider falls below AA- by
Standard & Poor's or Aa3 by ▇▇▇▇▇'▇, the Issuer shall obtain an equivalent
interest rate cap from a Series 1999-2 Eligible Counterparty within 30 days of
such decline in credit rating unless such provider provides some form of
collateral for its obligations under its interest rate cap and the Rating Agency
Condition is satisfied with respect to such arrangement. The Issuer will not
permit any interest rate cap required to be obtained and maintained by the
Issuer pursuant to this Section 5A.11 to be terminated or transferred in whole
or in part unless a replacement interest rate cap therefor has been provided as
described in the immediately preceding sentence and, after giving effect
thereto, the Issuer has the interest rate caps required to be obtained and
maintained by the Issuer pursuant to this Section 5A.11.
27
(f) In order to secure and provide for the repayment and
payment of the Issuer Obligations with respect to the Series 1999-2 Investor
Notes, the Issuer hereby grants a security interest in and assigns, pledges,
grants, transfers and sets over to the Indenture Trustee, for the benefit of the
Series 1999-2 Investor Noteholders, all of the Issuer's right, title and
interest in and to the Series 1999-2 Lease Rate Cap and all proceeds thereof.
ARTICLE 3
AMORTIZATION EVENTS
If any one of the following events shall occur with respect to
the Series 1999-2 Investor Notes:
(a) the Series 1999-2 Reserve Account shall have become
subject to an injunction, estoppel or other stay or a Lien (other than a
Permitted Lien);
(b) the Series 1999-2 Yield Supplement Account shall have
become subject to an injunction, estoppel or other stay or a Lien (other than a
Permitted Lien);
(c) a Series 1999-2 Liquid Credit Enhancement Deficiency shall
occur and continue for at least two Business Days;
(d) a Series 1999-2 Allocated Asset Amount Deficiency shall
occur and continue for at least two Business Days;
(e) a Series 1999-2 Yield Supplement Deficiency shall occur
and continue for at least two Business Days;
(f) the Three Month Average Charge-Off Ratio with respect to
any Settlement Date exceeds 0.75%;
(g) the Three Month Average Residual Value Loss Ratio with
respect to any Settlement Date exceeds 12.50%;
(h) the Three Month Average Paid-In Advance Loss Ratio with
respect to any Settlement Date exceeds 1.50%;
(i) the Three Month Average Delinquency Ratio with respect to
any Settlement Date exceeds 6.0%;
(j) the failure on the part of the Issuer to declare and pay
dividends on the Series 1999-2 Senior Preferred Membership Interests or the
Series 1999-2 Junior Preferred Membership Interests on any Payment Date in
accordance with their terms;
(k) any Servicer Termination Event shall occur;
(l) any Termination Event shall occur;
28
(m) an Event of Default with respect to the Series 1999-2
Investor Notes shall occur;
(n) there is at least $10,000,000 on deposit in the Series
1999-2 Principal Collection Subaccount on two consecutive Settlement Dates
during the Series 1999-2 Revolving Period;
(o) an Insolvency Event shall occur with respect to SPV, the
Origination Trust, ARAC or VMS;
(p) all principal and interest of the Class A-1 Investor Notes
is not paid in full on or before the Class A-1 Maturity Date or all principal
and interest of the Class A-2 Investor Notes is not paid in full on or before
the Class A-2 Maturity Date;
(q) failure on the part of the Issuer (i) to make any payment
or deposit required by the terms of the Indenture (or within the applicable
grace period which shall not exceed two Business Days after the date such
payment or deposit is required to be made) or (ii) duly to observe or perform in
any material respect any covenants or agreements of the Issuer set forth in the
Base Indenture or this
Indenture Supplement, which failure continues unremedied
for a period of 45 days after there shall have been given to the Issuer by the
Indenture Trustee or the Issuer and the Indenture Trustee by the Series 1999-2
Required Investor Noteholders, written notice specifying such default and
requiring it to be remedied;
(r) any representation or warranty made by the Issuer in the
Base Indenture or this
Indenture Supplement, or any information required to be
delivered by the Issuer to the Indenture Trustee shall prove 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 45 days after there
shall have been given to the Issuer by the Indenture Trustee or the Issuer and
the Indenture Trustee by the Series 1999-2 Required Investor Noteholders,
written notice thereof;
(s) the Indenture Trustee shall for any reason cease to have a
valid and perfected first priority security interest in the Collateral or any of
VMS, the Issuer or any Affiliate of either thereof shall so assert;
(t) there shall have been filed against ARAC, VMS, the
Origination Trust, SPV or the Issuer (i) a notice of federal tax Lien from the
Internal Revenue Service, (ii) a notice of Lien from the PBGC under Section
412(n) of the Internal Revenue Code or Section 302(f) of ERISA for a failure to
make a required installment or other payment to a plan to which either of such
sections applies or (iii) a notice of any other Lien the existence of which
could reasonably be expected to have a material adverse effect on the business,
operations or financial condition of such Person, and, in each case, 40 days
shall have elapsed without such notice having been effectively withdrawn or such
Lien having been released or discharged;
(u) one or more judgments or decrees shall be entered against
the Issuer involving in the aggregate a liability (not paid or fully covered by
insurance) of $100,000 or more and such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 30 days from the
entry thereof; or
29
(v) any of the Transaction Documents shall cease, for any
reason, to be in full force and effect, other than in accordance with its terms;
then, in the case of any event described in clause (q) through (v) above, an
Amortization Event will be deemed to have occurred with respect to the Series
1999-2 Investor Notes only, if after the applicable grace period, either the
Indenture Trustee or Series 1999-2 Investor Noteholders holding a Majority in
Interest of the Series 1999-2 Investor Notes, declare that an Amortization Event
has occurred with respect to the Series 1999-2 Investor NOTES. In the case of
any event described in clauses (a) through (p) above, an Amortization Event with
respect to the Series 1999-2 Investor Notes will be deemed to have occurred
without notice or other action on the part of the Indenture Trustee or the
Series 1999-2 Investor Noteholders.
ARTICLE 4
OPTIONAL PREPAYMENT
The Issuer shall have the option to prepay the Class A-2
Investor Notes on any Payment Date after the Class A-2 Invested Amount is
reduced to an amount less than or equal to 10% of the Series 1999-2 Initial
Invested Amount. The Issuer shall give the Indenture Trustee at least ten
Business Days' prior written notice of the Payment Date on which the Issuer
intends to exercise such option to prepay (the "PREPAYMENT Date"). The
prepayment price for the Class A-2 Investor Notes shall equal the aggregate
outstanding principal balance of the Class A-2 Investor Notes (determined after
giving effect to any payments of principal and interest on such Payment Date),
plus accrued and unpaid interest on such outstanding principal balance. Not
later than 11:00 a.m., New York City time, on such Prepayment Date, the Issuer
shall deposit in the Series 1999-2 Distribution Account an amount equal to the
prepayment price in immediately available funds. The funds deposited into the
Series 1999-2 Distribution Account will be paid by the Indenture Trustee to the
Class A-2 Investor Noteholders on such Prepayment Date.
ARTICLE 5
SERVICING AND ADMINISTRATOR FEES
Section 5.1 SERVICING FEE. A periodic servicing fee (the
"Series 1999-2 Servicing Fee") shall be payable to the Servicer on each Payment
Date for the preceding Monthly Period in an amount equal to the product of (a)
0.215% per annum (the "Series Servicing Fee Percentage") times (b) the Series
1999-2 Allocated Adjusted Aggregate Unit Balance as of the first day of such
Monthly Period times (c) the number of days in such Monthly Period DIVIDED by
365 (or 366, as applicable) days. The Series 1999-2 Servicing Fee shall be
payable to the Servicer on each Payment Date pursuant to Section 5A.4(c)(iv) or
(vi).
Section 5.2 ADMINISTRATOR FEE. A periodic fee (the "SERIES
1999-2 ADMINISTRATOR FEE") shall be payable to the Administrator on each Payment
Date for the preceding Monthly Period in an amount equal to the product of (a)
0.01% per annum times (b) the Series 1999-2 Allocated Adjusted Aggregate Unit
Balance as of the first day of such Monthly Period times (c) the number of days
in such Monthly Period DIVIDED by 365 (or 366, as applicable) days. The
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Series 1999-2 Administrator Fee shall be payable to the Administrator on each
Payment Date pursuant to SECTION 5A.4(c)(VII).
ARTICLE 6
FORM OF SERIES 1999-2 NOTES
Section 6.1 INITIAL ISSUANCE OF SERIES 1999-2 INVESTOR NOTES.
The Series 1999-2 Investor Notes are being offered and sold by
the Issuer pursuant to a Purchase Agreement, dated October 14, 1999, among the
Issuer, VMS, ARAC and Chase Securities Inc., as the representative of the
initial purchasers. The Series 1999-2 Investor Notes will be resold initially
only to (A) qualified institutional buyers (as defined in Rule 144A ) ("QIBS")
in reliance on Rule 144A and (B) Persons other than U.S. Persons (as defined in
Regulation S) in reliance on Regulation S. Such Series 1999-2 Investor Notes may
thereafter be transferred to QIBs and purchasers in reliance on Regulation S in
accordance with the procedure described herein.
Section 6.2 RESTRICTED GLOBAL NOTES.
The Series 1999-2 Investor Notes of each Class offered and
sold in their initial distribution in reliance upon Rule 144A will be issued in
the form of one or more Global Notes in fully registered form, without coupons,
substantially in the forms set forth in Exhibits A-1-1 and A-2-1, registered in
the name of Cede & Co., as nominee of DTC, and deposited with Chase, as
custodian of DTC (collectively, the "RESTRICTED GLOBAL NOTES"). The aggregate
initial principal amount of the Restricted Global Notes may from time to time be
increased or decreased by adjustments made on the records of Chase, as custodian
for DTC, in connection with a corresponding decrease or increase in the
aggregate initial principal amount of the corresponding class of Regulation S
Global Notes or the Unrestricted Global Notes, as hereinafter provided.
Section 6.3 REGULATION S GLOBAL NOTES AND UNRESTRICTED GLOBAL
NOTES.
Series 1999-2 Investor Notes of each Class offered and sold on
the Series 1999-2 Closing Date in reliance upon Regulation S will be issued in
the form of one or more Global Notes in fully registered form, without coupons,
substantially in the forms set forth in Exhibits A-1-2 and A-2-2, registered in
the name of Cede & Co., as nominee of DTC, and deposited with Chase, as
custodian of DTC, for credit to the respective accounts at DTC of ▇▇▇▇▇▇
Guaranty Trust Company of New York, Brussels Office, as operator of the
Euroclear System ("Euroclear"), and Cedelbank ("CEDELBANK"). Until such time as
the Restricted Period shall have terminated, such Series 1999-2 Investor Notes
shall be referred to herein collectively as the "REGULATION S GLOBAL NOTES".
After such time as the Restricted Period shall have terminated, such Series
1999-2 Investor Notes shall be exchangeable, in whole or in part, for interests
in one or more permanent global notes in registered form without interest
coupons, substantially in the form of Exhibits A-1-3 and A-2-3, as hereinafter
provided (collectively, the "UNRESTRICTED GLOBAL NOTES"). The aggregate
principal amount of a Class of the Regulation S Global Notes or the Unrestricted
Global Notes may from time to time be increased or decreased by adjustments made
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on the records of Chase, as custodian for DTC, in connection with a
corresponding decrease or increase of aggregate principal amount of the
corresponding Class of Restricted Global Notes, as hereinafter provided.
Section 6.4 DEFINITIVE NOTES.
No Series 1999-2 Note Owner will receive a Definitive Note
representing such Series 1999-2 Note Owner's interest in the Series 1999-2
Investor Notes other than in accordance with Section 2.11 of the Base Indenture.
Section 6.5 TRANSFER RESTRICTIONS.
(a) A Series 1999-2 Global Note may not be transferred, in
whole or in part, to any Person other than DTC or a nominee thereof, and no such
transfer to any such other Person may be registered; PROVIDED, HOWEVER, that
this SECTION 6.5(a) shall not prohibit any transfer of a Series 1999-2 Investor
Note that is issued in exchange for a Series 1999-2 Global Note but is not
itself a Series 1999-2 Global Note and shall not prohibit any transfer of a
beneficial interest in a Series 1999-2 Global Note effected in accordance with
the other provisions of this SECTION 6.5.
(b) The transfer by an owner of a beneficial interest in a
Restricted Global Note to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Restricted Global Note shall be made upon
the deemed representation of the transferee that it is purchasing 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 QIB, 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 such transferee 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 its foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
(c) If the owner of a beneficial interest in a Restricted
Global Note wishes at any time to exchange its interest in such Restricted
Global Note for an interest in the Regulation S Global Note, or to transfer such
interest to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Regulation S Global Note, such exchange or transfer
may be effected, subject to the applicable rules and procedures of DTC,
Euroclear and Cedelbank (the "APPLICABLE PROCEDURES"), only in accordance with
the provisions of this SECTION 6.5(c). Upon receipt by the Transfer Agent and
Registrar, at the office of the Transfer Agent and Registrar, of (i) written
instructions given in accordance with the Applicable Procedures from a Clearing
Agency Participant directing the Transfer Agent and Registrar to credit or cause
to be credited to a specified Clearing Agency Participant's account a beneficial
interest in the Regulation S Global Note, in a principal amount equal to that of
the beneficial interest in such Restricted Global Note to be so exchanged or
transferred, (ii) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Clearing Agency
Participant (and the Euroclear or Cedelbank account, as the case may be) to be
credited with, and the account of the Clearing Agency Participant to be debited
for, such beneficial interest and (iii) a certificate in substantially the form
set forth in Exhibit B-1 given by the holder of such beneficial interest in such
Restricted Global Note, the Transfer Agent and Registrar shall instruct
32
Chase, as custodian of DTC, to reduce the principal amount of the Restricted
Global Note, and to increase the principal amount of the Regulation S Global
Note, by the principal amount of the beneficial interest in such Restricted
Global Note to be so exchanged or transferred, and to credit or cause to be
credited to the account of the Person specified in such instructions (which
shall be the Clearing Agency Participant for Euroclear or Cedelbank or both, as
the case may be) a beneficial interest in the Regulation S Global Note having a
principal amount equal to the amount by which the principal amount of such
Restricted Global Note was reduced upon such exchange or transfer.
(d) If the owner of a beneficial interest in a Restricted
Global Note wishes at any time to exchange its interest in such Restricted
Global Note for an interest in the Unrestricted Global Note, or to transfer such
interest to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, such exchange or transfer
may be effected, subject to the Applicable Procedures, only in accordance with
the provisions of this SECTION 6.5(d). Upon receipt by the Transfer Agent and
Registrar, at the office of the Transfer Agent and Registrar, of (A) written
instructions given in accordance with the Applicable Procedures from a Clearing
Agency Participant directing the Transfer Agent and Registrar to credit or cause
to be credited to a specified Clearing Agency Participant's account a beneficial
interest in the Unrestricted Global Note in a principal amount equal to that of
the beneficial interest in such Restricted Global Note to be so exchanged or
transferred, (ii) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Clearing Agency
Participant (and the Euroclear or Cedelbank account, as the case may be) to be
credited with, and the account of the Clearing Agency Participant to be debited
for, such beneficial interest and (iii) a certificate in substantially the form
of Exhibit B-2 given by the holder of such beneficial interest in such
Restricted Global Note, the Transfer Agent and Registrar shall instruct Chase,
as custodian of DTC, to reduce the principal amount of such Restricted Global
Note, and to increase the principal amount of the Unrestricted Global Note, by
the principal amount of the beneficial interest in such Restricted Global Note
to be so exchanged or transferred, and to credit or cause to be credited to the
account of the Person specified in such instructions (which shall be the
Clearing Agency Participant for Euroclear or Cedelbank or both, as the case may
be) a beneficial interest in the Unrestricted Global Note having a principal
amount equal to the amount by which the principal amount of such Restricted
Global Note was reduced upon such exchange or transfer.
(e) If the owner of a beneficial interest in a Regulation S
Global Note or an Unrestricted Global Note wishes at any time to exchange its
interest in such Regulation S Global Note or such Unrestricted Global Note for
an interest in the Restricted Global Note, or to transfer such interest to a
Person who wishes to take delivery thereof in the form of a beneficial interest
in the Restricted Global Note, such exchange or transfer may be effected,
subject to the Applicable Procedures, only in accordance with the provisions of
this SECTION 6.5(e). Upon receipt by the Transfer Agent and Registrar, at the
office of the Transfer Agent and Registrar, of (i) written instructions given in
accordance with the Applicable Procedures from a Clearing Agency Participant
directing the Transfer Agent and Registrar to credit or cause to be credited to
a specified Clearing Agency Participant's account a beneficial interest in the
Restricted Global Note in a principal amount equal to that of the beneficial
interest in such Regulation S Global Note or such Unrestricted Global Note, as
the case may be, to be so exchanged or transferred, (ii) a written order given
in accordance with the Applicable Procedures containing information
33
regarding the account of the Clearing Agency Participant (and the Euroclear or
Cedelbank account, as the case may be) to be credited with, and the account of
the Clearing Agency Participant to be debited for, such beneficial interest and
(iii) with respect to a transfer of a beneficial interest in such Regulation S
Global Note (but not such Unrestricted Global Note), a certificate in
substantially the form set forth in Exhibit B-3 given by the holder of such
beneficial interest in such Regulation S Global Note, the Transfer Agent and
Registrar shall instruct Chase, as custodian of DTC, to reduce the principal
amount of such Regulation S Global Note or such Unrestricted Global Note, as the
case may be, and to increase the principal amount of the Restricted Global Note,
by the principal amount of the beneficial interest in such Regulation S Global
Note or such Unrestricted Global Note to be so exchanged or transferred, and to
credit or cause to be credited to the account of the Person specified in such
instructions (which shall be the Clearing Agency Participant for DTC) a
beneficial interest in the Restricted Global Note having a principal amount
equal to the amount by which the principal amount of such Regulation S Global
Note or such Unrestricted Global Note, as the case may be, was reduced upon such
exchange or transfer.
(f) In the event that a Series 1999-2 Global Note or any
portion thereof is exchanged for Series 1999-2 Investor Notes other than Series
1999-2 Global Notes, such other Series 1999-2 Investor Notes may in turn be
exchanged (upon transfer or otherwise) for Series 1999-2 Investor Notes that are
not Series 1999-2 Global Notes or for a beneficial interest in a Series 1999-2
Global Note (if any is then outstanding) only in accordance with such
procedures, which shall be substantially consistent with the provisions of
SECTIONS 6.5(a) through SECTION 6.5(e) and SECTION 6.5(g) (including the
certification requirement intended to ensure that transfers and exchanges of
beneficial interests in a Series 1999-2 Global Note comply with Rule 144A or
Regulation S under the Securities Act, as the case may be) and any Applicable
Procedures, as may be adopted from time to time by the Issuer and the Transfer
Agent and Registrar.
(g) Until the termination of the Restricted Period, interests
in the Regulation S Global Notes may be held only through Clearing Agency
Participants acting for and on behalf of Euroclear and Cedelbank; provided, that
this SECTION 6.5(g) shall not prohibit any transfer in accordance with SECTION
6.5(d). After the expiration of the Restricted Period, interests in the
Unrestricted Global Notes may be transferred without requiring any
certifications.
(h) The Series 1999-2 Investor Notes shall bear the following
legends to the extent indicated:
(i) The Restricted Notes shall bear the following legend:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR WITH ANY
STATE SECURITIES LAWS. THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH
GREYHOUND FUNDING LLC (THE "ISSUER") OR ANY AFFILIATE OF THE
ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH
34
NOTE), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
(A "QIB.") THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QIB. TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHT
OF THE ISSUER, PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
(ii) The Regulation S Global Notes shall bear the following
legend:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR WITH ANY
SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF
THE UNITED STATES. UNTIL 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF
THE OFFERING AND THE ORIGINAL ISSUE DATE OF THE NOTES (THE "RESTRICTED
PERIOD") IN CONNECTION WITH THE OFFERING OF THE NOTES IN THE UNITED
STATES FROM OUTSIDE OF THE UNITED STATES, THE SALE, PLEDGE OR TRANSFER
OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS AND RESTRICTIONS. THE
HOLDER HEREOF, BY PURCHASING OR OTHERWISE ACQUIRING THIS NOTE,
ACKNOWLEDGES THAT THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT AND AGREES FOR THE BENEFIT OF
GREYHOUND FUNDING LLC (THE
"ISSUER") THAT THIS NOTE MAY BE RAFTERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS OF THE STATES, TERRITORIES AND POSSESSIONS OF THE
UNITED STATES GOVERNING THE OFFER AND SALE OF SECURITIES, AND PRIOR TO
THE EXPIRATION OF THE RESTRICTED PERIOD, ONLY (1) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(2) PURSUANT TO AND IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES
ACT OR (3) TO THE ISSUER.
(iii) The Series 1999-2 Global Notes shall bear the following
legends:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
35
NAME OF THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ A NOMINEE THEREOF. THIS
NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC TO THE ISSUER OR THE TRANSFER AGENT AND REGISTRAR, 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 BECAUSE
THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
(iv) The required legends set forth above shall not be removed
from the applicable Series 1999-2 Investor Notes except as provided
herein. The legend required for a Restricted Note may be removed from
such Restricted Note if there is delivered to the Issuer and the
Transfer Agent and Registrar such satisfactory evidence, which may
include an Opinion of Counsel as may be reasonably required by the
Issuer that neither such legend nor the restrictions on transfer set
forth therein are required to ensure that transfers of such Series
1999-2 Investor Note will not violate the registration requirements of
the Securities Act. Upon provision of such satisfactory evidence, the
Indenture Trustee at the direction of the Issuer shall authenticate and
deliver in exchange for such Restricted Note a Series 1999-2 Investor
Note or Series 1999-2 Investor Notes having an equal aggregate
principal amount that does not bear such legend. If such a legend
required for a Restricted Note has been removed from a Series 1999-2
Investor Note as provided above, no other Series 1999-2 Investor Note
issued in exchange for all or any part of such Series 1999-2 Investor
Note shall bear such legend, unless the Issuer has reasonable cause to
believe that such other Series 1999-2 Investor Note is a "restricted
security" within the meaning of Rule 144 under the Securities Act and
instructs the Indenture Trustee to cause a legend to appear thereon.
ARTICLE 7
INFORMATION
The Issuer hereby agrees to provide to the Indenture Trustee
and each provider of the Series 1999-2 Required Lease Rate Cap, on each
Determination Date, a Monthly Settlement Statement, substantially in the form of
Exhibit C, setting forth as of the last day of the most recent Monthly Period
and for such Monthly Period the information set forth therein. The
36
Indenture Trustee shall provide to the Series 1999-2 Investor Noteholders, or
their designated agent, copies of each Monthly Settlement Statement.
ARTICLE 8
MISCELLANEOUS
Section 8.1 RATIFICATION OF INDENTURE. 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 shall be read,
taken and construed as one and the same instrument.
Section 8.2 OBLIGATIONS UNAFFECTED. The obligations of the
Issuer to the Series 1999-2 Investor Noteholders under this Indenture Supplement
shall not be affected by reason of any invalidity, illegality or irregularity of
any of the SUBI Certificates, the Sold Units or the Fleet Receivables.
Section 8.3 GOVERNING LAW. THIS INDENTURE SUPPLEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 8.4 FURTHER ASSURANCES. Each of the Issuer and the
Indenture Trustee agrees, at the Administrator's expense, from time to time, to
do and perform any and all acts and to execute any and all further instruments
required or reasonably requested by the Series 1999-2 Required Investor
Noteholders more fully to effect the purposes of this Indenture Supplement and
the sale of the Series 1999-2 Investor Notes hereunder, including, without
limitation, in the case of the Issuer, the execution of any financing or
registration statements or similar documents or notices or continuation
statements relating to the Series 1999-2 Collateral for filing or registration
under the provisions of the UCC or similar legislation of any applicable
jurisdiction.
Section 8.5 EXHIBITS. The following exhibits attached hereto
supplement the exhibits included in the Base Indenture:
Exhibit A-1-1: Form of Restricted Global Class A-1 Note
Exhibit A-1-2: Form of Regulation S Global Class A-1 Note
Exhibit A-1-3: Form of Unrestricted Global Class A-1 Note
Exhibit A-2-1: Form of Restricted Global Class A-2 Note
Exhibit A-2-2: Form of Regulation S Global Class A-2 Note
Exhibit A-2-3: Form of Unrestricted Global Class A-2 Note
Exhibit B-1: Form of Transfer Certificate
Exhibit B-2: Form of Transfer Certificate
Exhibit B-3: Form of Transfer Certificate
Exhibit C: Form of Monthly Settlement Statement
Exhibit D: Form of Series 1999-2 Lease Rate Cap
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Section 8.6 NO WAIVER; CUMULATIVE REMEDIES. No failure to
exercise and no delay in exercising, on the part of the Indenture Trustee, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
Section 8.7 AMENDMENTS. (a) This Indenture Supplement may be
amended in writing from time to time in accordance with the terms of the Base
Indenture.
(b) No amendment specified in this Indenture Supplement as
requiring satisfaction of the Rating Agency Condition shall be effective until
the Rating Agency Condition is satisfied with respect thereto.
Section 8.8 SEVERABILITY. If any provision hereof is void or
unenforceable in any jurisdiction, such voidness or unenforceability shall not
affect the validity or enforceability of (i) such provision in any other
jurisdiction or (ii) any other provision hereof in such or any other
jurisdiction.
Section 8.9 COUNTERPARTS. This Indenture Supplement may be
executed in any number of counterparts and by the different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original, and all of which taken together shall constitute one and the same
agreement.
Section 8.10 NO BANKRUPTCY PETITION. (a) By acquiring a Series
1999-2 Investor Note or an interest therein, each Series 1999-2 Investor
Noteholder and each Series 1999-2 Investor Note Owner hereby covenants and
agrees that it will not institute against, or join any other Person in
instituting against, the Issuer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other similar proceedings under any
federal or state bankruptcy or similar law.
(b) By acquiring a Series 1999-2 Investor Note or an interest
therein, each Series 1999-2 Investor Noteholder and each Series 1999-2 Investor
Note Owner and the Issuer and the Indenture Trustee hereby covenants and agrees
that, prior to the date which is one year and one day after payment in full of
all obligations under each Securitization, it will not institute against, or
join any other Person in instituting against, the Origination Trust, SPV, any
other Special Purpose Entity, or any general partner or single member of any
Special Purpose Entity that is a partnership or limited liability company,
respectively, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law.
Section 8.11 SUBIS. By acquiring a Series 1999-2 Investor Note
or an interest therein, each Series 1999-2 Investor Noteholder and each Series
1999-2 Investor Note Owner and the Issuer hereby represents, warrants and
covenants that (a) each of the Lease SUBI and the Fleet Receivable SUBI is a
separate series of the Origination Trust as provided in Section 3806(b)(2) of
Chapter 38 of Title 12 of the Delaware Code, 12 DEL.C. ss. 3801 ET SEQ., (b)(i)
the
38
debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to the Lease SUBI, the Lease SUBI Portfolio or
the Fleet Receivable SUBI shall be enforceable against the Lease SUBI Portfolio
or the Fleet Receivable SUBI only, as applicable, and not against any other SUBI
Portfolio or the UTI Portfolio and (ii) the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to any
other SUBI (used in this Section as defined in the Origination Trust Agreement),
any other SUBI Portfolio (used in this Section as defined in the Origination
Trust Agreement), the UTI or the UTI Portfolio shall be enforceable against such
other SUBI Portfolio or the UTI Portfolio only, as applicable, and not against
any other SUBI Assets, (c) except to the extent required by law, UTI Assets or
SUBI Assets with respect to any SUBI (other than the Lease SUBI and the Fleet
Receivable SUBI) shall not be subject to the claims, debts, liabilities,
expenses or obligations arising from or with respect to the Lease SUBI or Fleet
Receivable SUBI, respectively, in respect of such claim, (d)(i) no creditor or
holder of a claim relating to the Lease SUBI, the Fleet Receivable SUBI or the
Lease Receivable SUBI Portfolio shall be entitled to maintain any action against
or recover any assets allocated to the UTI or the UTI Portfolio or any other
SUBI or the assets allocated thereto, and (ii) no creditor or holder of a claim
relating to the UTI, the UTI Portfolio or any SUBI other than the Lease SUBI or
the Fleet Receivable SUBI or any SUBI Assets other than the Lease SUBI Portfolio
or the Fleet Receivables shall be entitled to maintain any action against or
recover any assets allocated to the Lease SUBI or the Fleet Receivable SUBI, and
(e) any purchaser, assignee or pledgee of an interest in the Lease SUBI, the
Lease SUBI Certificate, the Fleet Receivable SUBI, the Lease SUBI Certificate,
the Fleet Receivable SUBI Certificate, any other SUBI, any other SUBI
Certificate (used in this Section as defined in the Origination Trust
Agreement), the UTI or the UTI Certificate must, prior to or contemporaneously
with the grant of any such assignment, pledge or security interest, (i) give to
the Origination Trust a non-petition covenant substantially similar to that set
forth in Section 6.9 of the Origination Trust Agreement, and (ii) execute an
agreement for the benefit of each holder, assignee or pledgee from time to time
of the UTI or UTI Certificate and any other SUBI or SUBI Certificate to release
all claims to the assets of the Origination Trust allocated to the UTI and each
other SUBI Portfolio and in the event that such release is not given effect, to
fully subordinate all claims it may be deemed to have against the assets of the
Origination Trust allocated to the UTI Portfolio and each other SUBI Portfolio.
Section 8.12 NOTICE TO RATING AGENCIES. The Indenture Trustee
shall provide to each Rating Agency a copy of each notice delivered to, or
required to be provided by, the Indenture Trustee pursuant to this Indenture
Supplement or any other Transaction Document.
Section 8.13 CONFLICT OF INSTRUCTIONS. In the event the Issuer
and the Administrator shall have delivered conflicting instructions to the
Indenture Trustee to take or refrain from taking action hereunder, the Indenture
Trustee shall follow the instructions of the Issuer.
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture Supplement to be duly executed by their respective officers
hereunto duly authorized as of the day and year first above written.
GREYHOUND FUNDING, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Manager
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By: /s ▇▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
EXHIBIT A-1-1
TO SERIES 1999-2
INDENTURE SUPPLEMENT
FORM OF RESTRICTED GLOBAL CLASS A-1 INVESTOR NOTE
REGISTERED $_______________
No. R-
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP (CINS) NO. [ ]
ISIN NO. [ ]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR WITH ANY STATE
SECURITIES LAWS. THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH
GREYHOUND FUNDING LLC (THE
"ISSUER") OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF SUCH NOTE), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A (A "QIB.") THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB. TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE RIGHT OF THE ISSUER, PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO IT. THIS LEGEND WILL BE REMOVED UPON
THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇ ▇▇▇▇▇▇▇ THEREOF. THIS NOTE MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR
A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC TO THE ISSUER OR THE TRANSFER AGENT AND REGISTRAR, 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 BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS CLASS A-1 INVESTOR NOTE IS PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT
OF THIS CLASS A-1 INVESTOR NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON
THE FACE HEREOF.
GREYHOUND FUNDING LLC
SERIES 1999-2 FLOATING RATE ASSET BACKED INVESTOR NOTES, CLASS A-1
GREYHOUND FUNDING LLC, a limited liability company formed
under the laws of the State of Delaware (herein referred to as the "ISSUER"),
for value received, hereby promises to pay to Cede & Co., or registered assigns,
the principal sum of [ ], which amount shall be payable in the amounts and at
the times set forth in the Indenture described herein, provided, however, that
the entire unpaid principal amount of this Class A-1 Investor Note shall be due
on the Class A-1 Final Maturity Date. However, principal with respect to the
Class A-1 Investor Notes may be paid earlier under certain limited circumstances
described in the Indenture. The Issuer will pay interest on this Class A-1 Note
for each Series 1999-2 Interest Period, in accordance with the terms of the
Indenture, at the Class A-1 Note Rate for such Interest Period. Each "SERIES
1999-2 INTEREST PERIOD" will be a period commencing on and including a Payment
Date and ending on and including the day preceding the next succeeding Payment
Date; PROVIDED, HOWEVER, that the initial Series 1999-2 Interest Period shall
commence on and include the Series 1999-2 Closing Date and end on and include
November 7, 1999. Such principal of and interest on this Class A-1 Investor Note
shall be paid in the manner specified on the reverse hereof and in the
Indenture.
The principal of and interest on this Class A-1 Investor 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. All
payments made by the Issuer with respect to this Class A-1 Investor Note shall
be applied as provided in the Indenture. This Class A-1 Investor Note
A-2
does not represent an interest in, or an obligation of, PHH Vehicle Management
Services LLC ("VMS") or any affiliate of VMS other than the Issuer.
Reference is made to the further provisions of this Class A-1
Investor Note set forth on the reverse hereof, which shall have the same effect
as though fully set forth on the face of this Class A-1 Investor Note. Although
a summary of certain provisions of the Indenture is set forth below and on the
reverse hereof and made a part hereof, this Class A-1 Investor Note does not
purport to summarize the Indenture and reference is made to the Indenture for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Issuer and the Indenture Trustee. A copy of the Indenture may be requested
from the Indenture Trustee by writing to the Indenture Trustee at: The Chase
Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
Capital Markets Fiduciary Services. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to them in the
Indenture.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Class A-1 Investor Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory for any
purpose.
A-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
-------------------
Date: October 28, 1999
GREYHOUND FUNDING LLC
By:
----------------------------------
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Investor Notes issued under the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Indenture Trustee
By:
----------------------------------
Authorized Signatory
A-4
[REVERSE OF CLASS A-1 INVESTOR NOTE]
This Class A-1 Investor Note is one of a duly authorized issue
of Class A-1 Investor Notes of the Issuer designated its Series 1999-2 Floating
Rate Asset Backed Investor Notes (herein called the "CLASS A-1 INVESTOR NOTES"),
all issued under (i) a Base Indenture dated as of June 30, 1999 (such Base
Indenture, as amended or modified, is herein called the "BASE INDENTURE"),
between the Issuer and The Chase Manhattan Bank, as Indenture Trustee (the
"INDENTURE TRUSTEE", which term includes any successor Indenture Trustee under
the Base Indenture), and (ii) a Series 1999-2 Indenture Supplement dated as of
October 28, 1999 (the "SERIES 1999-2 INDENTURE SUPPLEMENT") between the Issuer
and the Indenture Trustee. The Base Indenture and the Series 1999-2 Supplement
are referred to herein as the "INDENTURE". The Class A-1 Investor Notes are
subject to all terms of the Indenture. All terms used in this Class A-1 Investor
Note that are defined in the Indenture, as supplemented, modified or amended,
shall have the meanings assigned to them in or pursuant to the Indenture, as so
supplemented, modified or amended.
The Class A-1 Investor Notes are and will be equally and
ratably secured by the Series 1999-2 Collateral pledged as security therefor as
provided in the Indenture and the Series 1999-2 Indenture Supplement.
Principal of the Class A-1 Investor Notes will be payable on
each Payment Date specified in and in the amounts described in the Indenture.
"PAYMENT DATE" means the 7th day of each month, or if such date is not a
Business Day, the next succeeding Business Day, commencing November 8, 1999.
The entire unpaid principal amount of this Series 1999-2
Investor Note shall be due and payable on the Class A-1 Final Maturity Date.
Notwithstanding the foregoing, principal on the Class A-1 Investor Notes will be
paid earlier during the Series 1999-2 Amortization Period as described in the
Indenture. All principal payments on the Class A-1 Investor Notes shall be made
pro rata to the Class A-1 Investor Noteholders entitled thereto.
Interest will accrue on this Class A-1 Investor Notes for each
Series 1999-2 Interest Period at a rate equal to (i) with respect to the initial
Series 1999-2 Interest Period, 5.73% per annum and (ii) with respect to each
Series 1999-2 Interest Period thereafter, a rate per annum equal to One-Month
LIBOR for such Series 1999-2 Interest Period plus .32% per annum (the "CLASS A-1
NOTE RATE"). "ONE-MONTH LIBOR" means, for each Series 1999-2 Interest Period,
the rate per annum determined on the related LIBOR Determination Date by the
Calculation Agent to be the rate for Dollar deposits having a maturity equal to
one month that appears on Telerate Page 3750 at approximately 11:00 a.m., London
time, on such LIBOR Determination Date; PROVIDED, HOWEVER, that if such rate
does not appear on Telerate Page 3750, One-Month LIBOR will mean, for such
1999-2 Interest Period, the rate per annum equal to the arithmetic mean (rounded
to the nearest one-one-hundred-thousandth of one percent) of the rates quoted by
the Reference Banks to the Calculation Agent as the rates at which deposits in
Dollars are offered by the Reference Banks at approximately 11:00 a.m., London
time, on the LIBOR Determination Date to prime banks in the London interbank
market for a period equal to one month; PROVIDED, FURTHER, that if fewer than
two quotations are provided as requested by the Reference Banks, "One-Month
LIBOR" for such Series 1999-2 Interest Period will mean the
A-5
arithmetic mean (rounded to the nearest one-one-hundred-thousandth of one
percent) of the rates quoted by major banks in New York, New York selected by
the Calculation Agent, at approximately 10:00 a.m., New York City time, on the
first day of such Series 1999-2 Interest Period for loans in Dollars to leading
European banks for a period equal to one month; PROVIDED, FINALLY, that if no
such quotes are provided, "One-Month LIBOR" for such Series 1999-2 Interest
Period will mean One-Month LIBOR as in effect with respect to the preceding
Series 1999-2 Interest Period.
The Issuer shall pay interest on overdue installments of
interest at the Class A-1 Note Rate to the extent lawful.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Class A-1 Investor Note may
be registered on the Note Register upon surrender of this Class A-1 Investor
Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Class A-1 Investor Notes of authorized denominations
in the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-1 Investor Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
By acquiring a Class A-1 Investor Note or an interest therein,
each Class A-1 Investor Noteholder and each Class A-1 Investor Note Owner and
the Issuer and the Indenture Trustee hereby covenants and agrees that, prior to
the date which is one year and one day after payment in full of all obligations
under each Securitization, it will not institute against, or join any other
Person in instituting against, the Origination Trust, SPV, any other Special
Purpose Entity, or any general partner or single member of any Special Purpose
Entity that is a partnership or limited liability company, respectively, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceedings under any federal or state bankruptcy or similar law.
Each Class A-1 Investor Noteholder, by acceptance of a Class
A-1 Investor Note or, in the case of a Class A-1 Investor Note Owner, a
beneficial interest in a Class A-1 Investor Note, hereby represents, warrants
and covenants that (a) each of the Lease SUBI and the Fleet Receivable SUBI is a
separate series of the Origination Trust as provided in Section 3806(b)(2) of
Chapter 38 of Title 12 of the Delaware Code, 12 DEL.C. ss. 3801 ET SEQ., (b)(i)
the debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to the Lease SUBI, the Lease SUBI Portfolio or
the Fleet Receivable SUBI shall be enforceable against the Lease SUBI Portfolio
or the Fleet Receivable SUBI only, as applicable, and not against any other SUBI
Portfolio or the UTI Portfolio and (ii) the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to any
other SUBI (used in this paragraph as defined in the Origination Trust
Agreement), any other SUBI Portfolio (used in this paragraph as defined in the
Origination Trust Agreement), the UTI or the UTI Portfolio shall be enforceable
against such other SUBI Portfolio or the UTI Portfolio only, as applicable, and
not against any other SUBI Assets, (c) except to the extent required by law, UTI
Assets or
A-6
SUBI Assets with respect to any SUBI (other than the Lease SUBI and the Fleet
Receivable SUBI) shall not be subject to the claims, debts, liabilities,
expenses or obligations arising from or with respect to the Lease SUBI or Fleet
Receivable SUBI, respectively, in respect of such claim, (d)(i) no creditor or
holder of a claim relating to the Lease SUBI, the Fleet Receivable SUBI or the
Lease SUBI Portfolio shall be entitled to maintain any action against or recover
any assets allocated to the UTI or the UTI Portfolio or any other SUBI or the
assets allocated thereto, and (ii) no creditor or holder of a claim relating to
the UTI, the UTI Portfolio or any SUBI other than the Lease SUBI or the Fleet
Receivable SUBI or any SUBI Assets other than the Lease SUBI Portfolio or the
Fleet Receivables shall be entitled to maintain any action against or recover
any assets allocated to the Lease SUBI or the Fleet Receivable SUBI, and (e) any
purchaser, assignee or pledgee of an interest in the Lease SUBI, the Lease SUBI
Certificate, the Fleet Receivable SUBI, the Lease SUBI Certificate, the Fleet
Receivable SUBI Certificate, any other SUBI, any other SUBI Certificate (used in
this Section as defined in the Origination Trust Agreement), the UTI or the UTI
Certificate must, prior to or contemporaneously with the grant of any such
assignment, pledge or security interest, (i) give to the Origination Trust a
non-petition covenant substantially similar to that set forth in Section 6.9 of
the Origination Trust Agreement, and (ii) execute an agreement for the benefit
of each holder, assignee or pledgee from time to time of the UTI or UTI
Certificate and any other SUBI or SUBI Certificate to release all claims to the
assets of the Origination Trust allocated to the UTI and each other SUBI
Portfolio and in the event that such release is not given effect, to fully
subordinate all claims it may be deemed to have against the assets of the
Origination Trust allocated to the UTI Portfolio and each other SUBI Portfolio.
Each Class A-1 Investor Noteholder or Class A-1 Investor Note
Owner, by acceptance of a Class A-1 Investor Note or, in the case of a Class A-1
Investor Note Owner, a beneficial interest in a Class A-1 Investor Note,
covenants and agrees that by accepting the benefits of the Indenture that such
Class A-1 Investor Noteholder or Class A-1 Investor Note Owner will not
institute against, or join with any other Person in instituting against, the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings, under any Federal or state bankruptcy or
similar law.
It is the intent of the Issuer, each Class A-1 Investor
Noteholder and each Class A-1 Investor Note Owner that, for Federal, state and
local income and franchise tax purposes only, the Class A-1 Investor Notes will
evidence indebtedness of the Issuer secured by the Series 1999-2 Collateral.
Each Class A-1 Investor Noteholder and each Class A-1 Investor Note Owner, by
the acceptance of this Class A-1 Investor Note, agrees to treat this Class A-1
Investor Note for purposes of Federal, state and local income and franchise
taxes and any other tax imposed on or measured by income, as indebtedness of the
Issuer.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Series 1999-2
Investor Notes under the Indenture at any time by the Issuer with the consent of
the Holders of a Majority in Interest of the Series 1999-2 Investor Notes
affected by such amendment or modification. The Indenture also contains
provisions permitting the Holders of Series 1999-2 Investor Notes representing
specified percentages of the aggregate outstanding amount of the Series 1999-2
Investor Notes, on behalf of the Holders of all the Series 1999-2 Investor
Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent
A-7
or waiver by the Holder of this Class A-1 Investor Note (or any one or more
predecessor Class A-1 Investor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Class A-1 Investor Note and of any
Class A-1 Investor Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class A-1 Investor Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Series 1999-2 Investor Notes
issued thereunder.
The term "Issuer" as used in this Class A-1 Investor Note
includes any successor to the Issuer under the Indenture.
The Class A-1 Investor Notes are issuable only in registered
form in denominations as provided in the Indenture, subject to certain
limitations set forth therein.
This Class A-1 Investor Note and the Indenture shall be
governed by, and construed in accordance with, the law of the State of New York,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such law.
No reference herein to the Indenture and no provision of this
Class A-1 Investor Note or of the Indenture shall alter or impair the obligation
of the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Class A-1 Investor Note at the times, place and rate, and in
the coin or currency herein prescribed.
Interests in this Restricted Global Note may be exchanged for
Definitive Notes, subject to the provisions of the Indenture.
A-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
(name and address of assignee)
the within Class A-1 Investor Note and all rights thereunder, and hereby
irrevocably constitutes and appoints ____________________, attorney, to transfer
said Class A-1 Investor Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: By:
----------------------------- ------------------------------- (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 Class A-1 Investor
Note, without alteration, enlargement or any change whatsoever.
A-9
EXHIBIT A-1-2
TO SERIES 1999-2
INDENTURE SUPPLEMENT
FORM OF REGULATION S GLOBAL CLASS A-1 INVESTOR NOTE
REGISTERED $_______________
No. R-
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP (CINS) NO. [ ]
ISIN NO. [ ]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR WITH ANY
SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED
STATES. UNTIL 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING AND
THE ORIGINAL ISSUE DATE OF THE NOTES (THE "RESTRICTED PERIOD") IN CONNECTION
WITH THE OFFERING OF THE NOTES IN THE UNITED STATES FROM OUTSIDE OF THE UNITED
STATES, THE SALE, PLEDGE OR TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN
CONDITIONS AND RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING OR OTHERWISE
ACQUIRING THIS NOTE, ACKNOWLEDGES THAT THIS NOTE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT AND AGREES FOR THE BENEFIT OF
GREYHOUND FUNDING LLC (THE
"ISSUER") THAT THIS NOTE MAY BE TRANSFERRED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS
OF THE STATES, TERRITORIES AND POSSESSIONS OF THE UNITED STATES GOVERNING THE
OFFER AND SALE OF SECURITIES, AND PRIOR TO THE EXPIRATION OF THE RESTRICTED
PERIOD, ONLY (1) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (2) PURSUANT TO AND IN ACCORDANCE WITH RULE 144A UNDER
THE SECURITIES ACT OR (3) TO THE ISSUER.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY ("DTC"), A NEW YORK CORPORATION, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇ ▇▇▇▇▇▇▇ THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART
FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE
A-10
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC TO THE ISSUER OR THE TRANSFER AGENT AND REGISTRAR, 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 BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS CLASS A-1 INVESTOR NOTE IS PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT
OF THIS CLASS A-1 INVESTOR NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON
THE FACE HEREOF.
GREYHOUND FUNDING LLC
SERIES 1999-2 FLOATING RATE ASSET BACKED INVESTOR NOTES, CLASS A-1
GREYHOUND FUNDING LLC, a limited liability company formed
under the laws of the State of Delaware (herein referred to as the "ISSUER"),
for value received, hereby promises to pay to Cede & Co., or registered assigns,
the principal sum of $[ ], which amount shall be payable in the amounts and at
the times set forth in the Indenture described herein, provided, however, that
the entire unpaid principal amount of this Class A-1 Investor Note shall be due
on the Class A-1 Final Maturity Date. However, principal with respect to the
Class A-1 Investor Notes may be paid earlier under certain limited circumstances
described in the Indenture. The Issuer will pay interest on this Class A-1 Note
for each Series 1999-2 Interest Period, in accordance with the terms of the
Indenture, at the Class A-1 Note Rate for such Interest Period. Each "SERIES
1999-2 INTEREST PERIOD" will be a period commencing on and including a Payment
Date and ending on and including the day preceding the next succeeding Payment
Date; PROVIDED, HOWEVER, that the initial Series 1999-2 Interest Period shall
commence on and include the Series 1999-2 Closing Date and end on and include
November 7, 1999. Such principal of and interest on this Class A-1 Investor Note
shall be paid in the manner specified on the reverse hereof and in the
Indenture.
The principal of and interest on this Class A-1 Investor 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. All
payments made by the Issuer with respect to this Class A-1 Investor Note shall
be applied as provided in the Indenture. This Class A-1 Investor Note does not
represent an interest in, or an obligation of, PHH Vehicle Management Services
LLC ("VMS") or any affiliate of VMS other than the Issuer.
Reference is made to the further provisions of this Class A-1
Investor Note set forth on the reverse hereof, which shall have the same effect
as though fully set forth on the face
A-11
of this Class A-1 Investor Note. Although a summary of certain provisions of the
Indenture is set forth below and on the reverse hereof and made a part hereof,
this Class A-1 Investor Note does not purport to summarize the Indenture and
reference is made to the Indenture for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and obligations of the Issuer and the Indenture Trustee.
A copy of the Indenture may be requested from the Indenture Trustee by writing
to the Indenture Trustee at: The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: Capital Markets Fiduciary Services. To the
extent not defined herein, the capitalized terms used herein have the meanings
ascribed to them in the Indenture.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Class A-1 Investor Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory for any
purpose.
A-12
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Date: October 28, 1999 GREYHOUND FUNDING LLC
By:
---------------------------------
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Investor Notes issued under the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Indenture Trustee
By:
-------------------------------------------
Authorized Signatory
A-13
[REVERSE OF CLASS A-1 INVESTOR NOTE]
This Class A-1 Investor Note is one of a duly authorized issue
of Class A-1 Investor Notes of the Issuer designated its Series 1999-2 Floating
Rate Asset Backed Investor Notes (herein called the "CLASS A-1 INVESTOR NOTES"),
all issued under (i) a Base Indenture dated as of June 30, 1999 (such Base
Indenture, as amended or modified, is herein called the "BASE INDENTURE"),
between the Issuer and The Chase Manhattan Bank, as Indenture Trustee (the
"INDENTURE TRUSTEE", which term includes any successor Indenture Trustee under
the Base Indenture), and (ii) a Series 1999-2 Indenture Supplement dated as of
October 28, 1999 (the "SERIES 1999-2 INDENTURE SUPPLEMENT") between the Issuer
and the Indenture Trustee. The Base Indenture and the Series 1999-2 Supplement
are referred to herein as the "INDENTURE". The Class A-1 Investor Notes are
subject to all terms of the Indenture. All terms used in this Class A-1 Investor
Note that are defined in the Indenture, as supplemented, modified or amended,
shall have the meanings assigned to them in or pursuant to the Indenture, as so
supplemented, modified or amended.
The Class A-1 Investor Notes are and will be equally and
ratably secured by the Series 1999-2 Collateral pledged as security therefor as
provided in the Indenture and the Series 1999-2 Indenture Supplement.
Principal of the Class A-1 Investor Notes will be payable on
each Payment Date specified in and in the amounts described in the Indenture.
"PAYMENT DATE" means the 7th day of each month, or if such date is not a
Business Day, the next succeeding Business Day, commencing November 8, 1999.
The entire unpaid principal amount of this Series 1999-2
Investor Note shall be due and payable on the Class A-1 Final Maturity Date.
Notwithstanding the foregoing, principal on the Class A-1 Investor Notes will be
paid earlier during the Series 1999-2 Amortization Period as described in the
Indenture. All principal payments on the Class A-1 Investor Notes shall be made
pro rata to the Class A-1 Investor Noteholders entitled thereto.
Interest will accrue on this Class A-1 Investor Notes for each
Series 1999-2 Interest Period at a rate equal to (i) with respect to the initial
Series 1999-2 Interest Period, 5.73% per annum and (ii) with respect to each
Series 1999-2 Interest Period thereafter, a rate per annum equal to One-Month
LIBOR for such Series 1999-2 Interest Period plus .32% per annum (the "CLASS A-1
NOTE RATE"). "ONE-MONTH LIBOR" means, for each Series 1999-2 Interest Period,
the rate per annum determined on the related LIBOR Determination Date by the
Calculation Agent to be the rate for Dollar deposits having a maturity equal to
one month that appears on Telerate Page 3750 at approximately 11:00 a.m., London
time, on such LIBOR Determination Date; PROVIDED, HOWEVER, that if such rate
does not appear on Telerate Page 3750, One-Month LIBOR will mean, for such
1999-2 Interest Period, the rate per annum equal to the arithmetic mean (rounded
to the nearest one-one-hundred-thousandth of one percent) of the rates quoted by
the Reference Banks to the Calculation Agent as the rates at which deposits in
Dollars are offered by the Reference Banks at approximately 11:00 a.m., London
time, on the LIBOR Determination Date to prime banks in the London interbank
market for a period equal to one month; PROVIDED, FURTHER, that if fewer than
two quotations are provided as requested by the Reference Banks, "One-Month
LIBOR" for such Series 1999-2 Interest Period will mean the
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arithmetic mean (rounded to the nearest one-one-hundred-thousandth of one
percent) of the rates quoted by major banks in New York, New York selected by
the Calculation Agent, at approximately 10:00 a.m., New York City time, on the
first day of such Series 1999-2 Interest Period for loans in Dollars to leading
European banks for a period equal to one month; PROVIDED, FINALLY, that if no
such quotes are provided, "One-Month LIBOR" for such Series 1999-2 Interest
Period will mean One-Month LIBOR as in effect with respect to the preceding
Series 1999-2 Interest Period.
The Issuer shall pay interest on overdue installments of
interest at the Class A-1 Note Rate to the extent lawful.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Class A-1 Investor Note may
be registered on the Note Register upon surrender of this Class A-1 Investor
Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Class A-1 Investor Notes of authorized denominations
in the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-1 Investor Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
By acquiring a Class A-1 Investor Note or an interest therein,
each Class A-1 Investor Noteholder and each Class A-1 Investor Note Owner and
the Issuer and the Indenture Trustee hereby covenants and agrees that, prior to
the date which is one year and one day after payment in full of all obligations
under each Securitization, it will not institute against, or join any other
Person in instituting against, the Origination Trust, SPV, any other Special
Purpose Entity, or any general partner or single member of any Special Purpose
Entity that is a partnership or limited liability company, respectively, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceedings under any federal or state bankruptcy or similar law.
Each Class A-1 Investor Noteholder, by acceptance of a Class
A-1 Investor Note or, in the case of a Class A-1 Investor Note Owner, a
beneficial interest in a Class A-1 Investor Note, hereby represents, warrants
and covenants that (a) each of the Lease SUBI and the Fleet Receivable SUBI is a
separate series of the Origination Trust as provided in Section 3806(b)(2) of
Chapter 38 of Title 12 of the Delaware Code, 12 DEL.C. ss. 3801 ET SEQ., (b)(i)
the debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to the Lease SUBI, the Lease SUBI Portfolio or
the Fleet Receivable SUBI shall be enforceable against the Lease SUBI Portfolio
or the Fleet Receivable SUBI only, as applicable, and not against any other SUBI
Portfolio or the UTI Portfolio and (ii) the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to any
other SUBI (used in this paragraph as defined in the Origination Trust
Agreement), any other SUBI Portfolio (used in this paragraph as defined in the
Origination Trust Agreement), the UTI or the UTI Portfolio shall be enforceable
against such other SUBI Portfolio or the UTI Portfolio only, as applicable, and
not against any other SUBI Assets, (c) except to the extent required by law, UTI
Assets or
A-15
SUBI Assets with respect to any SUBI (other than the Lease SUBI and the Fleet
Receivable SUBI) shall not be subject to the claims, debts, liabilities,
expenses or obligations arising from or with respect to the Lease SUBI or Fleet
Receivable SUBI, respectively, in respect of such claim, (d)(i) no creditor or
holder of a claim relating to the Lease SUBI, the Fleet Receivable SUBI or the
Lease SUBI Portfolio shall be entitled to maintain any action against or recover
any assets allocated to the UTI or the UTI Portfolio or any other SUBI or the
assets allocated thereto, and (ii) no creditor or holder of a claim relating to
the UTI, the UTI Portfolio or any SUBI other than the Lease SUBI or the Fleet
Receivable SUBI or any SUBI Assets other than the Lease SUBI Portfolio or the
Fleet Receivables shall be entitled to maintain any action against or recover
any assets allocated to the Lease SUBI or the Fleet Receivable SUBI, and (e) any
purchaser, assignee or pledgee of an interest in the Lease SUBI, the Lease SUBI
Certificate, the Fleet Receivable SUBI, the Lease SUBI Certificate, the Fleet
Receivable SUBI Certificate, any other SUBI, any other SUBI Certificate (used in
this Section as defined in the Origination Trust Agreement), the UTI or the UTI
Certificate must, prior to or contemporaneously with the grant of any such
assignment, pledge or security interest, (i) give to the Origination Trust a
non-petition covenant substantially similar to that set forth in Section 6.9 of
the Origination Trust Agreement, and (ii) execute an agreement for the benefit
of each holder, assignee or pledgee from time to time of the UTI or UTI
Certificate and any other SUBI or SUBI Certificate to release all claims to the
assets of the Origination Trust allocated to the UTI and each other SUBI
Portfolio and in the event that such release is not given effect, to fully
subordinate all claims it may be deemed to have against the assets of the
Origination Trust allocated to the UTI Portfolio and each other SUBI Portfolio.
Each Class A-1 Investor Noteholder or Class A-1 Investor Note
Owner, by acceptance of a Class A-1 Investor Note or, in the case of a Class A-1
Investor Note Owner, a beneficial interest in a Class A-1 Investor Note,
covenants and agrees that by accepting the benefits of the Indenture that such
Class A-1 Investor Noteholder or Class A-1 Investor Note Owner will not
institute against, or join with any other Person in instituting against, the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings, under any Federal or state bankruptcy or
similar law.
It is the intent of the Issuer, each Class A-1 Investor
Noteholder and each Class A-1 Investor Note Owner that, for Federal, state and
local income and franchise tax purposes only, the Class A-1 Investor Notes will
evidence indebtedness of the Issuer secured by the Series 1999-2 Collateral.
Each Class A-1 Investor Noteholder and each Class A-1 Investor Note Owner, by
the acceptance of this Class A-1 Investor Note, agrees to treat this Class A-1
Investor Note for purposes of Federal, state and local income and franchise
taxes and any other tax imposed on or measured by income, as indebtedness of the
Issuer.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Series 1999-2
Investor Notes under the Indenture at any time by the Issuer with the consent of
the Holders of a Majority in Interest of the Series 1999-2 Investor Notes
affected by such amendment or modification. The Indenture also contains
provisions permitting the Holders of Series 1999-2 Investor Notes representing
specified percentages of the aggregate outstanding amount of the Series 1999-2
Investor Notes, on behalf of the Holders of all the Series 1999-2 Investor
Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent
A-16
or waiver by the Holder of this Class A-1 Investor Note (or any one or more
predecessor Class A-1 Investor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Class A-1 Investor Note and of any
Class A-1 Investor Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class A-1 Investor Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Series 1999-2 Investor Notes
issued thereunder.
The term "Issuer" as used in this Class A-1 Investor Note
includes any successor to the Issuer under the Indenture.
The Class A-1 Investor Notes are issuable only in registered
form in denominations as provided in the Indenture, subject to certain
limitations set forth therein.
This Class A-1 Investor Note and the Indenture shall be
governed by, and construed in accordance with, the law of the State of New York,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such law.
No reference herein to the Indenture and no provision of this
Class A-1 Investor Note or of the Indenture shall alter or impair the obligation
of the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Class A-1 Investor Note at the times, place and rate, and in
the coin or currency herein prescribed.
Interests in this Regulation S Global Note may be exchanged
for Definitive Notes, subject to the provisions of the Indenture.
A-17
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
______________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Class A-1 Investor Note and all rights thereunder, and hereby
irrevocably constitutes and appoints ____________________, attorney, to transfer
said Class A-1 Investor Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: By:
------------------------------- -------------------------------(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 Class A-1 Investor
Note, without alteration, enlargement or any change whatsoever.
A-18
EXHIBIT A-1-3
TO SERIES 1999-2
INDENTURE SUPPLEMENT
FORM OF UNRESTRICTED GLOBAL CLASS A-1 INVESTOR NOTE
REGISTERED $_______________
No. R-
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP (CINS) NO. [ ]
ISIN NO. [ ]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR WITH ANY
SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED
STATES. THE HOLDER HEREOF, BY PURCHASING OR OTHERWISE ACQUIRING THIS NOTE,
ACKNOWLEDGES THAT THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND
AGREES FOR THE BENEFIT OF GREYHOUND FUNDING LLC THAT THIS NOTE MAY BE REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS OF THE STATES, TERRITORIES AND POSSESSIONS OF THE
UNITED STATES GOVERNING THE OFFER AND SALE OF SECURITIES.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY ("DTC"), A NEW YORK CORPORATION, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇ ▇▇▇▇▇▇▇ THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART
FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC TO THE ISSUER OR THE TRANSFER AGENT AND REGISTRAR, 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 BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
A-19
THE PRINCIPAL OF THIS CLASS A-1 INVESTOR NOTE IS PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT
OF THIS CLASS A-1 INVESTOR NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON
THE FACE HEREOF.
GREYHOUND FUNDING LLC
SERIES 1999-2 FLOATING RATE ASSET BACKED INVESTOR NOTES, CLASS A-1
GREYHOUND FUNDING LLC, a limited liability company formed
under the laws of the State of Delaware (herein referred to as the "ISSUER"),
for value received, hereby promises to pay to Cede & Co., or registered assigns,
the principal sum of [ ], which amount shall be payable in the amounts and at
the times set forth in the Indenture described herein, provided, however, that
the entire unpaid principal amount of this Class A-1 Investor Note shall be due
on the Class A-1 Final Maturity Date. However, principal with respect to the
Class A-1 Investor Notes may be paid earlier under certain limited circumstances
described in the Indenture. The Issuer will pay interest on this Class A-1 Note
for each Series 1999-2 Interest Period, in accordance with the terms of the
Indenture at the Class A-1 Note Rate for such Interest Period. Each "SERIES
1999-2 INTEREST PERIOD" will be a period commencing on and including a Payment
Date and ending on and including the day preceding the next succeeding Payment
Date; PROVIDED, HOWEVER, that the initial Series 1999-2 Interest Period shall
commence on and include the Series 1999-2 Closing Date and end on and include
November 7, 1999. Such principal of and interest on this Class A-1 Investor Note
shall be paid in the manner specified on the reverse hereof and in the
Indenture.
The principal of and interest on this Class A-1 Investor 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. All
payments made by the Issuer with respect to this Class A-1 Investor Note shall
be applied as provided in the Indenture. This Class A-1 Investor Note does not
represent an interest in, or an obligation of, PHH Vehicle Management Services
LLC ("VMS") or any affiliate of VMS other than the Issuer.
Reference is made to the further provisions of this Class A-1
Investor Note set forth on the reverse hereof, which shall have the same effect
as though fully set forth on the face of this Class A-1 Investor Note. Although
a summary of certain provisions of the Indenture is set forth below and on the
reverse hereof and made a part hereof, this Class A-1 Investor Note does not
purport to summarize the Indenture and reference is made to the Indenture for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Issuer and the Indenture Trustee. A copy of the Indenture may be requested
from the Indenture Trustee by writing to the Indenture Trustee at: The Chase
Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
Capital Markets Fiduciary Services. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to them in the
Indenture.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Class A-1 Investor Note shall not
A-20
be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
A-21
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
-------------------
Date: October 28, 1999 GREYHOUND FUNDING LLC
By:
-----------------------------------
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Investor Notes issued under the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Indenture Trustee
By:
----------------------------------------------
Authorized Signatory
A-22
[REVERSE OF CLASS A-1 INVESTOR NOTE]
This Class A-1 Investor Note is one of a duly authorized issue
of Class A-1 Investor Notes of the Issuer designated its Series 1999-2 Floating
Rate Asset Backed Investor Notes (herein called the "CLASS A-1 INVESTOR NOTES"),
all issued under (i) a Base Indenture dated as of June 30, 1999 (such Base
Indenture, as amended or modified, is herein called the "BASE INDENTURE"),
between the Issuer and The Chase Manhattan Bank, as Indenture Trustee (the
"INDENTURE TRUSTEE", which term includes any successor Indenture Trustee under
the Base Indenture), and (ii) a Series 1999-2 Indenture Supplement dated as of
October 28, 1999 (the "SERIES 1999-2 INDENTURE SUPPLEMENT") between the Issuer
and the Indenture Trustee. The Base Indenture and the Series 1999-2 Supplement
are referred to herein as the "INDENTURE". The Class A-1 Investor Notes are
subject to all terms of the Indenture. All terms used in this Class A-1 Investor
Note that are defined in the Indenture, as supplemented, modified or amended,
shall have the meanings assigned to them in or pursuant to the Indenture, as so
supplemented, modified or amended.
The Class A-1 Investor Notes are and will be equally and
ratably secured by the Series 1999-2 Collateral pledged as security therefor as
provided in the Indenture and the Series 1999-2 Indenture Supplement.
Principal of the Class A-1 Investor Notes will be payable on
each Payment Date specified in and in the amounts described in the Indenture.
"PAYMENT DATE" means the 7th day of each month, or if such date is not a
Business Day, the next succeeding Business Day, commencing November 8, 1999.
The entire unpaid principal amount of this Series 1999-2
Investor Note shall be due and payable on the Class A-1 Final Maturity Date.
Notwithstanding the foregoing, principal on the Class A-1 Investor Notes will be
paid earlier during the Series 1999-2 Amortization Period as described in the
Indenture. All principal payments on the Class A-1 Investor Notes shall be made
pro rata to the Class A-1 Investor Noteholders entitled thereto.
Interest will accrue on this Class A-1 Investor Notes for each
Series 1999-2 Interest Period at a rate equal to (i) with respect to the initial
Series 1999-2 Interest Period, 5.73% per annum and (ii) with respect to each
Series 1999-2 Interest Period thereafter, a rate per annum equal to One-Month
LIBOR for such Series 1999-2 Interest Period plus .32% per annum (the "CLASS A-1
NOTE RATE"). "ONE-MONTH LIBOR" means, for each Series 1999-2 Interest Period,
the rate per annum determined on the related LIBOR Determination Date by the
Calculation Agent to be the rate for Dollar deposits having a maturity equal to
one month that appears on Telerate Page 3750 at approximately 11:00 a.m., London
time, on such LIBOR Determination Date; PROVIDED, HOWEVER, that if such rate
does not appear on Telerate Page 3750, One-Month LIBOR will mean, for such
1999-2 Interest Period, the rate per annum equal to the arithmetic mean (rounded
to the nearest one-one-hundred-thousandth of one percent) of the rates quoted by
the Reference Banks to the Calculation Agent as the rates at which deposits in
Dollars are offered by the Reference Banks at approximately 11:00 a.m., London
time, on the LIBOR Determination Date to prime banks in the London interbank
market for a period equal to one month; PROVIDED, FURTHER, that if fewer than
two quotations are provided as requested by the Reference Banks, "One-Month
LIBOR" for such Series 1999-2 Interest Period will mean the
A-23
arithmetic mean (rounded to the nearest one-one-hundred-thousandth of one
percent) of the rates quoted by major banks in New York, New York selected by
the Calculation Agent, at approximately 10:00 a.m., New York City time, on the
first day of such Series 1999-2 Interest Period for loans in Dollars to leading
European banks for a period equal to one month; PROVIDED, FINALLY, that if no
such quotes are provided, "One-Month LIBOR" for such Series 1999-2 Interest
Period will mean One-Month LIBOR as in effect with respect to the preceding
Series 1999-2 Interest Period.
The Issuer shall pay interest on overdue installments of
interest at the Class A-1 Note Rate to the extent lawful.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Class A-1 Investor Note may
be registered on the Note Register upon surrender of this Class A-1 Investor
Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Class A-1 Investor Notes of authorized denominations
in the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-1 Investor Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
By acquiring a Class A-1 Investor Note or an interest therein,
each Class A-1 Investor Noteholder and each Class A-1 Investor Note Owner and
the Issuer and the Indenture Trustee hereby covenants and agrees that, prior to
the date which is one year and one day after payment in full of all obligations
under each Securitization, it will not institute against, or join any other
Person in instituting against, the Origination Trust, SPV, any other Special
Purpose Entity, or any general partner or single member of any Special Purpose
Entity that is a partnership or limited liability company, respectively, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceedings under any federal or state bankruptcy or similar law.
Each Class A-1 Investor Noteholder, by acceptance of a Class
A-1 Investor Note or, in the case of a Class A-1 Investor Note Owner, a
beneficial interest in a Class A-1 Investor Note, hereby represents, warrants
and covenants that (a) each of the Lease SUBI and the Fleet Receivable SUBI is a
separate series of the Origination Trust as provided in Section 3806(b)(2) of
Chapter 38 of Title 12 of the Delaware Code, 12 DEL.C. ss. 3801 ET SEQ., (b)(i)
the debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to the Lease SUBI, the Lease SUBI Portfolio or
the Fleet Receivable SUBI shall be enforceable against the Lease SUBI Portfolio
or the Fleet Receivable SUBI only, as applicable, and not against any other SUBI
Portfolio or the UTI Portfolio and (ii) the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to any
other SUBI (used in this paragraph as defined in the Origination Trust
Agreement), any other SUBI Portfolio (used in this paragraph as defined in the
Origination Trust Agreement), the UTI or the UTI Portfolio shall be enforceable
against such other SUBI Portfolio or the UTI Portfolio only, as applicable, and
not against any other SUBI Assets, (c) except to the extent required by law, UTI
Assets or
A-24
SUBI Assets with respect to any SUBI (other than the Lease SUBI and
the Fleet Receivable SUBI) shall not be subject to the claims, debts,
liabilities, expenses or obligations arising from or with respect to the Lease
SUBI or Fleet Receivable SUBI, respectively, in respect of such claim, (d)(i) no
creditor or holder of a claim relating to the Lease SUBI, the Fleet Receivable
SUBI or the Lease SUBI Portfolio shall be entitled to maintain any action
against or recover any assets allocated to the UTI or the UTI Portfolio or any
other SUBI or the assets allocated thereto, and (ii) no creditor or holder of a
claim relating to the UTI, the UTI Portfolio or any SUBI other than the Lease
SUBI or the Fleet Receivable SUBI or any SUBI Assets other than the Lease SUBI
Portfolio or the Fleet Receivables shall be entitled to maintain any action
against or recover any assets allocated to the Lease SUBI or the Fleet
Receivable SUBI, and (e) any purchaser, assignee or pledgee of an interest in
the Lease SUBI, the Lease SUBI Certificate, the Fleet Receivable SUBI, the Lease
SUBI Certificate, the Fleet Receivable SUBI Certificate, any other SUBI, any
other SUBI Certificate (used in this Section as defined in the Origination Trust
Agreement), the UTI or the UTI Certificate must, prior to or contemporaneously
with the grant of any such assignment, pledge or security interest, (i) give to
the Origination Trust a non-petition covenant substantially similar to that set
forth in Section 6.9 of the Origination Trust Agreement, and (ii) execute an
agreement for the benefit of each holder, assignee or pledgee from time to time
of the UTI or UTI Certificate and any other SUBI or SUBI Certificate to release
all claims to the assets of the Origination Trust allocated to the UTI and each
other SUBI Portfolio and in the event that such release is not given effect, to
fully subordinate all claims it may be deemed to have against the assets of the
Origination Trust allocated to the UTI Portfolio and each other SUBI Portfolio.
Each Class A-1 Investor Noteholder or Class A-1 Investor Note
Owner, by acceptance of a Class A-1 Investor Note or, in the case of a Class A-1
Investor Note Owner, a beneficial interest in a Class A-1 Investor Note,
covenants and agrees that by accepting the benefits of the Indenture that such
Class A-1 Investor Noteholder or Class A-1 Investor Note Owner will not
institute against, or join with any other Person in instituting against, the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings, under any Federal or state bankruptcy or
similar law.
It is the intent of the Issuer, each Class A-1 Investor
Noteholder and each Class A-1 Investor Note Owner that, for Federal, state and
local income and franchise tax purposes only, the Class A-1 Investor Notes will
evidence indebtedness of the Issuer secured by the Series 1999-2 Collateral.
Each Class A-1 Investor Noteholder and each Class A-1 Investor Note Owner, by
the acceptance of this Class A-1 Investor Note, agrees to treat this Class A-1
Investor Note for purposes of Federal, state and local income and franchise
taxes and any other tax imposed on or measured by income, as indebtedness of the
Issuer.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Series 1999-2
Investor Notes under the Indenture at any time by the Issuer with the consent of
the Holders of a Majority in Interest of the Series 1999-2 Investor Notes
affected by such amendment or modification. The Indenture also contains
provisions permitting the Holders of Series 1999-2 Investor Notes representing
specified percentages of the aggregate outstanding amount of the Series 1999-2
Investor Notes, on behalf of the Holders of all the Series 1999-2 Investor
Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent
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or waiver by the Holder of this Class A-1 Investor Note (or any one or more
predecessor Class A-1 Investor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Class A-1 Investor Note and of any
Class A-1 Investor Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class A-1 Investor Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Series 1999-2 Investor Notes
issued thereunder.
The term "Issuer" as used in this Class A-1 Investor Note
includes any successor to the Issuer under the Indenture.
The Class A-1 Investor Notes are issuable only in registered
form in denominations as provided in the Indenture, subject to certain
limitations set forth therein.
This Class A-1 Investor Note and the Indenture shall be
governed by, and construed in accordance with, the law of the State of New York,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such law.
No reference herein to the Indenture and no provision of this
Class A-1 Investor Note or of the Indenture shall alter or impair the obligation
of the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Class A-1 Investor Note at the times, place and rate, and in
the coin or currency herein prescribed.
Interests in this Unrestricted Global Note may be exchanged
for Definitive Notes, subject to the provisions of the Indenture.
A-26
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
______________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Class A-1 Investor Note and all rights thereunder, and hereby
irrevocably constitutes and appoints ____________________, attorney, to transfer
said Class A-1 Investor Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: By:
------------------------------- -------------------------------(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 Class A-1 Investor
Note, without alteration, enlargement or any change whatsoever.
A-27
EXHIBIT A-2-1
TO SERIES 1999-2
INDENTURE SUPPLEMENT
FORM OF RESTRICTED GLOBAL CLASS A-2 INVESTOR NOTE
REGISTERED $_______________
No. R-
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP (CINS) NO. [ ]
ISIN NO. [ ]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR WITH ANY STATE
SECURITIES LAWS. THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH GREYHOUND FUNDING LLC (THE
"ISSUER") OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF SUCH NOTE), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A (A "QIB.") THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB. TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE RIGHT OF THE ISSUER, PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO IT. THIS LEGEND WILL BE REMOVED UPON
THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY ("DTC"), A NEW YORK CORPORATION, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇ ▇▇▇▇▇▇▇ THEREOF. THIS
A-28
NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC TO THE ISSUER OR THE TRANSFER AGENT AND REGISTRAR, 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 BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS CLASS A-2 INVESTOR NOTE IS PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT
OF THIS CLASS A-2 INVESTOR NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON
THE FACE HEREOF.
GREYHOUND FUNDING LLC
SERIES 1999-2 FLOATING RATE ASSET BACKED INVESTOR NOTES, CLASS A-2
GREYHOUND FUNDING LLC, a limited liability company formed
under the laws of the State of Delaware (herein referred to as the "ISSUER"),
for value received, hereby promises to pay to Cede & Co., or registered assigns,
the principal sum of [ ], which amount shall be payable in the amounts and at
the times set forth in the Indenture described herein, provided, however, that
the entire unpaid principal amount of this Class A-2 Investor Note shall be due
on the Class A-2 Final Maturity Date. However, principal with respect to the
Class A-2 Investor Notes may be paid earlier under certain limited circumstances
described in the Indenture. The Issuer will pay interest on this Class A-2 Note
for each Series 1999-2 Interest Period, in accordance with the terms of the
Indenture at the Class A-2 Note Rate for such Interest Period. Each "SERIES
1999-2 INTEREST PERIOD" will be a period commencing on and including a Payment
Date and ending on and including the day preceding the next succeeding Payment
Date; PROVIDED, HOWEVER, that the initial Series 1999-2 Interest Period shall
commence on and include the Series 1999-2 Closing Date and end on and include
November 7, 1999. Such principal of and interest on this Class A-2 Investor Note
shall be paid in the manner specified on the reverse hereof and in the
Indenture.
The principal of and interest on this Class A-2 Investor 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. All
payments made by the Issuer with respect to this Class A-2 Investor Note shall
be applied as provided in the Indenture. This Class A-2 Investor Note does not
represent an interest in, or an obligation of, PHH Vehicle Management Services
LLC ("VMS") or any affiliate of VMS other than the Issuer.
A-29
Reference is made to the further provisions of this Class A-2
Investor Note set forth on the reverse hereof, which shall have the same effect
as though fully set forth on the face of this Class A-2 Investor Note. Although
a summary of certain provisions of the Indenture is set forth below and on the
reverse hereof and made a part hereof, this Class A-2 Investor Note does not
purport to summarize the Indenture and reference is made to the Indenture for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Issuer and the Indenture Trustee. A copy of the Indenture may be requested
from the Indenture Trustee by writing to the Indenture Trustee at: The Chase
Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
Capital Markets Fiduciary Services. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to them in the
Indenture.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Class A-2 Investor Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory for any
purpose.
A-30
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
-------------------
Date: October 28, 1999 GREYHOUND FUNDING LLC
By:
-----------------------------------
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Investor Notes issued under the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Indenture Trustee
By:
---------------------------------------
Authorized Signatory
A-31
[REVERSE OF CLASS A-2 INVESTOR NOTE]
This Class A-2 Investor Note is one of a duly authorized issue
of Class A-2 Investor Notes of the Issuer designated its Series 1999-2 Floating
Rate Asset Backed Investor Notes (herein called the "CLASS A-2 INVESTOR NOTES"),
all issued under (i) a Base Indenture dated as of June 30, 1999 (such Base
Indenture, as amended or modified, is herein called the "BASE INDENTURE"),
between the Issuer and The Chase Manhattan Bank, as Indenture Trustee (the
"INDENTURE TRUSTEE", which term includes any successor Indenture Trustee under
the Base Indenture), and (ii) a Series 1999-2 Indenture Supplement dated as of
October 28, 1999 (the "SERIES 1999-2 INDENTURE SUPPLEMENT") between the Issuer
and the Indenture Trustee. The Base Indenture and the Series 1999-2 Supplement
are referred to herein as the "INDENTURE". The Class A-2 Investor Notes are
subject to all terms of the Indenture. All terms used in this Class A-2 Investor
Note that are defined in the Indenture, as supplemented, modified or amended,
shall have the meanings assigned to them in or pursuant to the Indenture, as so
supplemented, modified or amended.
The Class A-2 Investor Notes are and will be equally and
ratably secured by the Series 1999-2 Collateral pledged as security therefor as
provided in the Indenture and the Series 1999-2 Indenture Supplement.
Principal of the Class A-2 Investor Notes will be payable on
each Payment Date specified in and in the amounts described in the Indenture.
"PAYMENT DATE" means the 7th day of each month, or if such date is not a
Business Day, the next succeeding Business Day, commencing November 8, 1999.
The entire unpaid principal amount of this Series 1999-2
Investor Note shall be due and payable on the Class A-2 Final Maturity Date.
Notwithstanding the foregoing, principal on the Class A-2 Investor Notes will be
paid earlier during the Series 1999-2 Amortization Period as described in the
Indenture. All principal payments on the Class A-2 Investor Notes shall be made
pro rata to the Class A-2 Investor Noteholders entitled thereto.
The Issuer will have the option to prepay the Class A-2
Investor Notes, in whole but not in part, on any Payment Date if on such Payment
Date, the Series 1999-2 Invested Amount as of such date is less than or equal to
10% of the Series 1999-2 Initial Invested Amount. The prepayment price for the
Class A-2 Investor Notes will be equal to the amount set forth in the Indenture.
Interest will accrue on this Class A-2 Investor Notes for each
Series 1999-2 Interest Period at a rate equal to (i) with respect to the initial
Series 1999-2 Interest Period, 5.76% per annum and (ii) with respect to each
Series 1999-2 Interest Period thereafter, a rate per annum equal to One-Month
LIBOR for such Series 1999-2 Interest Period plus .35% per annum (the "CLASS A-2
NOTE RATE"). "ONE-MONTH LIBOR" means, for each Series 1999-2 Interest Period,
the rate per annum determined on the related LIBOR Determination Date by the
Calculation Agent to be the rate for Dollar deposits having a maturity equal to
one month that appears on Telerate Page 3750 at approximately 11:00 a.m., London
time, on such LIBOR Determination Date; PROVIDED, HOWEVER, that if such rate
does not appear on Telerate Page 3750, One-Month LIBOR will mean, for such
1999-2 Interest Period, the rate per annum equal to the
A-32
arithmetic mean (rounded to the nearest one-one-hundred-thousandth of one
percent) of the rates quoted by the Reference Banks to the Calculation Agent as
the rates at which deposits in Dollars are offered by the Reference Banks at
approximately 11:00 a.m., London time, on the LIBOR Determination Date to prime
banks in the London interbank market for a period equal to one month; PROVIDED,
FURTHER, that if fewer than two quotations are provided as requested by the
Reference Banks, "One-Month LIBOR" for such Series 1999-2 Interest Period will
mean the arithmetic mean (rounded to the nearest one-one-hundred-thousandth of
one percent) of the rates quoted by major banks in New York, New York selected
by the Calculation Agent, at approximately 10:00 a.m., New York City time, on
the first day of such Series 1999-2 Interest Period for loans in Dollars to
leading European banks for a period equal to one month; PROVIDED, FINALLY, that
if no such quotes are provided, "One-Month LIBOR" for such Series 1999-2
Interest Period will mean One-Month LIBOR as in effect with respect to the
preceding Series 1999-2 Interest Period.
The Issuer shall pay interest on overdue installments of
interest at the Class A-2 Note Rate to the extent lawful.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Class A-2 Investor Note may
be registered on the Note Register upon surrender of this Class A-2 Investor
Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Class A-2 Investor Notes of authorized denominations
in the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-2 Investor Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
By acquiring a Class A-2 Investor Note or an interest therein,
each Class A-2 Investor Noteholder and each Class A-2 Investor Note Owner and
the Issuer and the Indenture Trustee hereby covenants and agrees that, prior to
the date which is one year and one day after payment in full of all obligations
under each Securitization, it will not institute against, or join any other
Person in instituting against, the Origination Trust, SPV, any other Special
Purpose Entity, or any general partner or single member of any Special Purpose
Entity that is a partnership or limited liability company, respectively, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceedings under any federal or state bankruptcy or similar law.
Each Class A-2 Investor Noteholder, by acceptance of a Class
A-2 Investor Note or, in the case of a Class A-2 Investor Note Owner, a
beneficial interest in a Class A-2 Investor Note, hereby represents, warrants
and covenants that (a) each of the Lease SUBI and the Fleet Receivable SUBI is a
separate series of the Origination Trust as provided in Section 3806(b)(2) of
Chapter 38 of Title 12 of the Delaware Code, 12 DEL.C. ss. 3801 ET SEQ., (b)(i)
the debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to the Lease SUBI, the Lease SUBI Portfolio or
the Fleet Receivable SUBI shall be enforceable against the Lease SUBI Portfolio
or the Fleet Receivable SUBI only, as applicable, and not
A-33
against any other SUBI Portfolio or the UTI Portfolio and (ii) the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to any other SUBI (used in this paragraph as defined in
the Origination Trust Agreement), any other SUBI Portfolio (used in this
paragraph as defined in the Origination Trust Agreement), the UTI or the UTI
Portfolio shall be enforceable against such other SUBI Portfolio or the UTI
Portfolio only, as applicable, and not against any other SUBI Assets, (c) except
to the extent required by law, UTI Assets or SUBI Assets with respect to any
SUBI (other than the Lease SUBI and the Fleet Receivable SUBI) shall not be
subject to the claims, debts, liabilities, expenses or obligations arising from
or with respect to the Lease SUBI or Fleet Receivable SUBI, respectively, in
respect of such claim, (d)(i) no creditor or holder of a claim relating to the
Lease SUBI, the Fleet Receivable SUBI or the Lease SUBI Portfolio shall be
entitled to maintain any action against or recover any assets allocated to the
UTI or the UTI Portfolio or any other SUBI or the assets allocated thereto, and
(ii) no creditor or holder of a claim relating to the UTI, the UTI Portfolio or
any SUBI other than the Lease SUBI or the Fleet Receivable SUBI or any SUBI
Assets other than the Lease SUBI Portfolio or the Fleet Receivables shall be
entitled to maintain any action against or recover any assets allocated to the
Lease SUBI or the Fleet Receivable SUBI, and (e) any purchaser, assignee or
pledgee of an interest in the Lease SUBI, the Lease SUBI Certificate, the Fleet
Receivable SUBI, the Lease SUBI Certificate, the Fleet Receivable SUBI
Certificate, any other SUBI, any other SUBI Certificate (used in this Section as
defined in the Origination Trust Agreement), the UTI or the UTI Certificate
must, prior to or contemporaneously with the grant of any such assignment,
pledge or security interest, (i) give to the Origination Trust a non-petition
covenant substantially similar to that set forth in Section 6.9 of the
Origination Trust Agreement, and (ii) execute an agreement for the benefit of
each holder, assignee or pledgee from time to time of the UTI or UTI Certificate
and any other SUBI or SUBI Certificate to release all claims to the assets of
the Origination Trust allocated to the UTI and each other SUBI Portfolio and in
the event that such release is not given effect, to fully subordinate all claims
it may be deemed to have against the assets of the Origination Trust allocated
to the UTI Portfolio and each other SUBI Portfolio.
Each Class A-2 Investor Noteholder or Class A-2 Investor Note
Owner, by acceptance of a Class A-2 Investor Note or, in the case of a Class A-2
Investor Note Owner, a beneficial interest in a Class A-2 Investor Note,
covenants and agrees that by accepting the benefits of the Indenture that such
Class A-2 Investor Noteholder or Class A-2 Investor Note Owner will not
institute against, or join with any other Person in instituting against, the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings, under any Federal or state bankruptcy or
similar law.
It is the intent of the Issuer, each Class A-2 Investor
Noteholder and each Class A-2 Investor Note Owner that, for Federal, state and
local income and franchise tax purposes only, the Class A-2 Investor Notes will
evidence indebtedness of the Issuer secured by the Series 1999-2 Collateral.
Each Class A-2 Investor Noteholder and each Class A-2 Investor Note Owner, by
the acceptance of this Class A-2 Investor Note, agrees to treat this Class A-2
Investor Note for purposes of Federal, state and local income and franchise
taxes and any other tax imposed on or measured by income, as indebtedness of the
Issuer.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Series 1999-2
Investor Notes under the Indenture at any time by the Issuer
A-34
with the consent of the Holders of a Majority in Interest of the Series 1999-2
Investor Notes affected by such amendment or modification. The Indenture also
contains provisions permitting the Holders of Series 1999-2 Investor Notes
representing specified percentages of the aggregate outstanding amount of the
Series 1999-2 Investor Notes, on behalf of the Holders of all the Series 1999-2
Investor Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class A-2 Investor Note (or any
one or more predecessor Class A-2 Investor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this Class A-2 Investor
Note and of any Class A-2 Investor Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Class A-2 Investor Note. The Indenture also
permits the Indenture Trustee to amend or waive certain terms and conditions set
forth in the Indenture without the consent of Holders of the Series 1999-2
Investor Notes issued thereunder.
The term "Issuer" as used in this Class A-2 Investor Note
includes any successor to the Issuer under the Indenture.
The Class A-2 Investor Notes are issuable only in registered
form in denominations as provided in the Indenture, subject to certain
limitations set forth therein.
This Class A-2 Investor Note and the Indenture shall be
governed by, and construed in accordance with, the law of the State of New York,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such law.
No reference herein to the Indenture and no provision of this
Class A-2 Investor Note or of the Indenture shall alter or impair the obligation
of the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Class A-2 Investor Note at the times, place and rate, and in
the coin or currency herein prescribed.
Interests in this Restricted Global Note may be exchanged for
Definitive Notes, subject to the provisions of the Indenture.
A-35
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Class A-2 Investor Note and all rights thereunder, and hereby
irrevocably constitutes and appoints ____________________, attorney, to transfer
said Class A-2 Investor Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: By:
------------------------------- -------------------------------(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 Class A-1 Investor
Note, without alteration, enlargement or any change whatsoever.
A-36
EXHIBIT A-2-2
TO SERIES 1999-2
INDENTURE SUPPLEMENT
FORM OF REGULATION S GLOBAL CLASS A-2 INVESTOR NOTE
REGISTERED $_______________
No. R-
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP (CINS) NO. [ ]
ISIN NO. [ ]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR WITH ANY
SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED
STATES. UNTIL 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING AND
THE ORIGINAL ISSUE DATE OF THE NOTES (THE "RESTRICTED PERIOD") IN CONNECTION
WITH THE OFFERING OF THE NOTES IN THE UNITED STATES FROM OUTSIDE OF THE UNITED
STATES, THE SALE, PLEDGE OR TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN
CONDITIONS AND RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING OR OTHERWISE
ACQUIRING THIS NOTE, ACKNOWLEDGES THAT THIS NOTE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT AND AGREES FOR THE BENEFIT OF GREYHOUND FUNDING LLC (THE
"ISSUER") THAT THIS NOTE MAY BE TRANSFERRED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS
OF THE STATES, TERRITORIES AND POSSESSIONS OF THE UNITED STATES GOVERNING THE
OFFER AND SALE OF SECURITIES, AND PRIOR TO THE EXPIRATION OF THE RESTRICTED
PERIOD, ONLY (1) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (2) PURSUANT TO AND IN ACCORDANCE WITH RULE 144A UNDER
THE SECURITIES ACT OR (3) TO THE ISSUER.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY ("DTC"), A NEW YORK CORPORATION, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇ ▇▇▇▇▇▇▇ THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART
FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE
A-37
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC TO THE ISSUER OR THE TRANSFER AGENT AND REGISTRAR, 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 BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS CLASS A-2 INVESTOR NOTE IS PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT
OF THIS CLASS A-2 INVESTOR NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON
THE FACE HEREOF.
GREYHOUND FUNDING LLC
SERIES 1999-2 FLOATING RATE ASSET BACKED INVESTOR NOTES, CLASS A-2
GREYHOUND FUNDING LLC, a limited liability company formed
under the laws of the State of Delaware (herein referred to as the "ISSUER"),
for value received, hereby promises to pay to Cede & Co., or registered assigns,
the principal sum of [ ], which amount shall be payable in the amounts and at
the times set forth in the Indenture described herein, provided, however, that
the entire unpaid principal amount of this Class A-2 Investor Note shall be due
on the Class A-2 Final Maturity Date. However, principal with respect to the
Class A-2 Investor Notes may be paid earlier under certain limited circumstances
described in the Indenture. The Issuer will pay interest on this Class A-2 Note
for each Series 1999-2 Interest Period, in accordance with the terms of the
Indenture at the Class A-2 Note Rate for such Interest Period. Each "SERIES
1999-2 INTEREST PERIOD" will be a period commencing on and including a Payment
Date and ending on and including the day preceding the next succeeding Payment
Date; PROVIDED, HOWEVER, that the initial Series 1999-2 Interest Period shall
commence on and include the Series 1999-2 Closing Date and end on and include
November 7, 1999. Such principal of and interest on this Class A-2 Investor Note
shall be paid in the manner specified on the reverse hereof and in the
Indenture.
The principal of and interest on this Class A-2 Investor 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. All
payments made by the Issuer with respect to this Class A-2 Investor Note shall
be applied as provided in the Indenture. This Class A-2 Investor Note does not
represent an interest in, or an obligation of, PHH Vehicle Management Services
LLC ("VMS") or any affiliate of VMS other than the Issuer.
Reference is made to the further provisions of this Class A-2
Investor Note set forth on the reverse hereof, which shall have the same effect
as though fully set forth on the face
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of this Class A-2 Investor Note. Although a summary of certain provisions of the
Indenture is set forth below and on the reverse hereof and made a part hereof,
this Class A-2 Investor Note does not purport to summarize the Indenture and
reference is made to the Indenture for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and obligations of the Issuer and the Indenture Trustee.
A copy of the Indenture may be requested from the Indenture Trustee by writing
to the Indenture Trustee at: The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: Capital Markets Fiduciary Services. To the
extent not defined herein, the capitalized terms used herein have the meanings
ascribed to them in the Indenture.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Class A-2 Investor Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory for any
purpose.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
-------------------
Date: October 28, 1999 GREYHOUND FUNDING LLC
By:
-------------------------------
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Investor Notes issued under the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Indenture Trustee
By:
-------------------------------------
Authorized Signatory
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[REVERSE OF CLASS A-2 INVESTOR NOTE]
This Class A-2 Investor Note is one of a duly authorized issue
of Class A-2 Investor Notes of the Issuer designated its Series 1999-2 Floating
Rate Asset Backed Investor Notes (herein called the "CLASS A-2 INVESTOR NOTES"),
all issued under (i) a Base Indenture dated as of June 30, 1999 (such Base
Indenture, as amended or modified, is herein called the "BASE INDENTURE"),
between the Issuer and The Chase Manhattan Bank, as Indenture Trustee (the
"INDENTURE TRUSTEE", which term includes any successor Indenture Trustee under
the Base Indenture), and (ii) a Series 1999-2 Indenture Supplement dated as of
October 28, 1999 (the "SERIES 1999-2 INDENTURE SUPPLEMENT") between the Issuer
and the Indenture Trustee. The Base Indenture and the Series 1999-2 Supplement
are referred to herein as the "INDENTURE". The Class A-2 Investor Notes are
subject to all terms of the Indenture. All terms used in this Class A-2 Investor
Note that are defined in the Indenture, as supplemented, modified or amended,
shall have the meanings assigned to them in or pursuant to the Indenture, as so
supplemented, modified or amended.
The Class A-2 Investor Notes are and will be equally and
ratably secured by the Series 1999-2 Collateral pledged as security therefor as
provided in the Indenture and the Series 1999-2 Indenture Supplement.
Principal of the Class A-2 Investor Notes will be payable on
each Payment Date specified in and in the amounts described in the Indenture.
"PAYMENT DATE" means the 7th day of each month, or if such date is not a
Business Day, the next succeeding Business Day, commencing November 8, 1999.
The entire unpaid principal amount of this Series 1999-2
Investor Note shall be due and payable on the Class A-2 Final Maturity Date.
Notwithstanding the foregoing, principal on the Class A-2 Investor Notes will be
paid earlier during the Series 1999-2 Amortization Period as described in the
Indenture. All principal payments on the Class A-2 Investor Notes shall be made
pro rata to the Class A-2 Investor Noteholders entitled thereto.
The Issuer will have the option to prepay the Class A-2
Investor Notes, in whole but not in part, on any Payment Date if on such Payment
Date, the Series 1999-2 Invested Amount as of such date is less than or equal to
10% of the Series 1999-2 Initial Invested Amount. The prepayment price for the
Class A-2 Investor Notes will be equal to the amount set forth in the Indenture.
Interest will accrue on this Class A-2 Investor Notes for each
Series 1999-2 Interest Period at a rate equal to (i) with respect to the initial
Series 1999-2 Interest Period, 5.76% per annum and (ii) with respect to each
Series 1999-2 Interest Period thereafter, a rate per annum equal to One-Month
LIBOR for such Series 1999-2 Interest Period plus .35% per annum (the "CLASS A-2
NOTE RATE"). "ONE-MONTH LIBOR" means, for each Series 1999-2 Interest Period,
the rate per annum determined on the related LIBOR Determination Date by the
Calculation Agent to be the rate for Dollar deposits having a maturity equal to
one month that appears on Telerate Page 3750 at approximately 11:00 a.m., London
time, on such LIBOR Determination Date; PROVIDED, HOWEVER, that if such rate
does not appear on Telerate Page 3750, One-Month LIBOR will mean, for such
1999-2 Interest Period, the rate per annum equal to the
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arithmetic mean (rounded to the nearest one-one-hundred-thousandth of one
percent) of the rates quoted by the Reference Banks to the Calculation Agent as
the rates at which deposits in Dollars are offered by the Reference Banks at
approximately 11:00 a.m., London time, on the LIBOR Determination Date to prime
banks in the London interbank market for a period equal to one month; PROVIDED,
FURTHER, that if fewer than two quotations are provided as requested by the
Reference Banks, "One-Month LIBOR" for such Series 1999-2 Interest Period will
mean the arithmetic mean (rounded to the nearest one-one-hundred-thousandth of
one percent) of the rates quoted by major banks in New York, New York selected
by the Calculation Agent, at approximately 10:00 a.m., New York City time, on
the first day of such Series 1999-2 Interest Period for loans in Dollars to
leading European banks for a period equal to one month; PROVIDED, FINALLY, that
if no such quotes are provided, "One-Month LIBOR" for such Series 1999-2
Interest Period will mean One-Month LIBOR as in effect with respect to the
preceding Series 1999-2 Interest Period.
The Issuer shall pay interest on overdue installments of
interest at the Class A-2 Note Rate to the extent lawful.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Class A-2 Investor Note may
be registered on the Note Register upon surrender of this Class A-2 Investor
Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Class A-2 Investor Notes of authorized denominations
in the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-2 Investor Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
By acquiring a Class A-2 Investor Note or an interest therein,
each Class A-2 Investor Noteholder and each Class A-2 Investor Note Owner and
the Issuer and the Indenture Trustee hereby covenants and agrees that, prior to
the date which is one year and one day after payment in full of all obligations
under each Securitization, it will not institute against, or join any other
Person in instituting against, the Origination Trust, SPV, any other Special
Purpose Entity, or any general partner or single member of any Special Purpose
Entity that is a partnership or limited liability company, respectively, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceedings under any federal or state bankruptcy or similar law.
Each Class A-2 Investor Noteholder, by acceptance of a Class
A-2 Investor Note or, in the case of a Class A-2 Investor Note Owner, a
beneficial interest in a Class A-2 Investor Note, hereby represents, warrants
and covenants that (a) each of the Lease SUBI and the Fleet Receivable SUBI is a
separate series of the Origination Trust as provided in Section 3806(b)(2) of
Chapter 38 of Title 12 of the Delaware Code, 12 DEL.C. ss. 3801 ET SEQ., (b)(i)
the debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to the Lease SUBI, the Lease SUBI Portfolio or
the Fleet Receivable SUBI shall be enforceable against the Lease SUBI Portfolio
or the Fleet Receivable SUBI only, as applicable, and not
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against any other SUBI Portfolio or the UTI Portfolio and (ii) the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to any other SUBI (used in this paragraph as defined in
the Origination Trust Agreement), any other SUBI Portfolio (used in this
paragraph as defined in the Origination Trust Agreement), the UTI or the UTI
Portfolio shall be enforceable against such other SUBI Portfolio or the UTI
Portfolio only, as applicable, and not against any other SUBI Assets, (c) except
to the extent required by law, UTI Assets or SUBI Assets with respect to any
SUBI (other than the Lease SUBI and the Fleet Receivable SUBI) shall not be
subject to the claims, debts, liabilities, expenses or obligations arising from
or with respect to the Lease SUBI or Fleet Receivable SUBI, respectively, in
respect of such claim, (d)(i) no creditor or holder of a claim relating to the
Lease SUBI, the Fleet Receivable SUBI or the Lease SUBI Portfolio shall be
entitled to maintain any action against or recover any assets allocated to the
UTI or the UTI Portfolio or any other SUBI or the assets allocated thereto, and
(ii) no creditor or holder of a claim relating to the UTI, the UTI Portfolio or
any SUBI other than the Lease SUBI or the Fleet Receivable SUBI or any SUBI
Assets other than the Lease SUBI Portfolio or the Fleet Receivables shall be
entitled to maintain any action against or recover any assets allocated to the
Lease SUBI or the Fleet Receivable SUBI, and (e) any purchaser, assignee or
pledgee of an interest in the Lease SUBI, the Lease SUBI Certificate, the Fleet
Receivable SUBI, the Lease SUBI Certificate, the Fleet Receivable SUBI
Certificate, any other SUBI, any other SUBI Certificate (used in this Section as
defined in the Origination Trust Agreement), the UTI or the UTI Certificate
must, prior to or contemporaneously with the grant of any such assignment,
pledge or security interest, (i) give to the Origination Trust a non-petition
covenant substantially similar to that set forth in Section 6.9 of the
Origination Trust Agreement, and (ii) execute an agreement for the benefit of
each holder, assignee or pledgee from time to time of the UTI or UTI Certificate
and any other SUBI or SUBI Certificate to release all claims to the assets of
the Origination Trust allocated to the UTI and each other SUBI Portfolio and in
the event that such release is not given effect, to fully subordinate all claims
it may be deemed to have against the assets of the Origination Trust allocated
to the UTI Portfolio and each other SUBI Portfolio.
Each Class A-2 Investor Noteholder or Class A-2 Investor Note
Owner, by acceptance of a Class A-2 Investor Note or, in the case of a Class A-2
Investor Note Owner, a beneficial interest in a Class A-2 Investor Note,
covenants and agrees that by accepting the benefits of the Indenture that such
Class A-2 Investor Noteholder or Class A-2 Investor Note Owner will not
institute against, or join with any other Person in instituting against, the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings, under any Federal or state bankruptcy or
similar law.
It is the intent of the Issuer, each Class A-2 Investor
Noteholder and each Class A-2 Investor Note Owner that, for Federal, state and
local income and franchise tax purposes only, the Class A-2 Investor Notes will
evidence indebtedness of the Issuer secured by the Series 1999-2 Collateral.
Each Class A-2 Investor Noteholder and each Class A-2 Investor Note Owner, by
the acceptance of this Class A-2 Investor Note, agrees to treat this Class A-2
Investor Note for purposes of Federal, state and local income and franchise
taxes and any other tax imposed on or measured by income, as indebtedness of the
Issuer.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Series 1999-2
Investor Notes under the Indenture at any time by the Issuer
A-43
with the consent of the Holders of a Majority in Interest of the Series 1999-2
Investor Notes affected by such amendment or modification. The Indenture also
contains provisions permitting the Holders of Series 1999-2 Investor Notes
representing specified percentages of the aggregate outstanding amount of the
Series 1999-2 Investor Notes, on behalf of the Holders of all the Series 1999-2
Investor Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class A-2 Investor Note (or any
one or more predecessor Class A-2 Investor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this Class A-2 Investor
Note and of any Class A-2 Investor Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Class A-2 Investor Note. The Indenture also
permits the Indenture Trustee to amend or waive certain terms and conditions set
forth in the Indenture without the consent of Holders of the Series 1999-2
Investor Notes issued thereunder.
The term "Issuer" as used in this Class A-2 Investor Note
includes any successor to the Issuer under the Indenture.
The Class A-2 Investor Notes are issuable only in registered
form in denominations as provided in the Indenture, subject to certain
limitations set forth therein.
This Class A-2 Investor Note and the Indenture shall be
governed by, and construed in accordance with, the law of the State of New York,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such law.
No reference herein to the Indenture and no provision of this
Class A-2 Investor Note or of the Indenture shall alter or impair the obligation
of the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Class A-2 Investor Note at the times, place and rate, and in
the coin or currency herein prescribed.
Interests in this Regulation S Global Note may be exchanged
for Definitive Notes, subject to the provisions of the Indenture.
A-44
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Class A-2 Investor Note and all rights thereunder, and hereby
irrevocably constitutes and appoints ____________________, attorney, to transfer
said Class A-2 Investor Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: By:
---------------------------- ---------------------------------- (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 Class A-1 Investor
Note, without alteration, enlargement or any change whatsoever.
A-45
EXHIBIT A-2-3
TO SERIES 1999-2
INDENTURE SUPPLEMENT
FORM OF UNRESTRICTED GLOBAL CLASS A-2 INVESTOR NOTE
REGISTERED $_______________
No. R-
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP (CINS) NO. [ ]
ISIN NO. [ ]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR WITH ANY
SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED
STATES. THE HOLDER HEREOF, BY PURCHASING OR OTHERWISE ACQUIRING THIS NOTE,
ACKNOWLEDGES THAT THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND
AGREES FOR THE BENEFIT OF GREYHOUND FUNDING LLC THAT THIS NOTE MAY BE REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS OF THE STATES, TERRITORIES AND POSSESSIONS OF THE
UNITED STATES GOVERNING THE OFFER AND SALE OF SECURITIES.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY ("DTC"), A NEW YORK CORPORATION, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇ ▇▇▇▇▇▇▇ THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART
FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC TO THE ISSUER OR THE TRANSFER AGENT AND REGISTRAR, 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
A-46
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER, CEDE &
CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS CLASS A-2 INVESTOR NOTE IS PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT
OF THIS CLASS A-2 INVESTOR NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON
THE FACE HEREOF.
GREYHOUND FUNDING LLC
SERIES 1999-2 FLOATING RATE ASSET BACKED INVESTOR NOTES, CLASS A-2
GREYHOUND FUNDING LLC, a limited liability company formed
under the laws of the State of Delaware (herein referred to as the "ISSUER"),
for value received, hereby promises to pay to Cede & Co., or registered assigns,
the principal sum of [ ], which amount shall be payable in the amounts and at
the times set forth in the Indenture described herein, provided, however, that
the entire unpaid principal amount of this Class A-2 Investor Note shall be due
on the Class A-2 Final Maturity Date. However, principal with respect to the
Class A-2 Investor Notes may be paid earlier under certain limited circumstances
described in the Indenture. The Issuer will pay interest on this Class A-2 Note
for each Series 1999-2 Interest Period, in accordance with the terms of the
Indenture at the Class A-2 Note Rate for such Interest Period. Each "SERIES
1999-2 INTEREST PERIOD" will be a period commencing on and including a Payment
Date and ending on and including the day preceding the next succeeding Payment
Date; PROVIDED, HOWEVER, that the initial Series 1999-2 Interest Period shall
commence on and include the Series 1999-2 Closing Date and end on and include
November 7, 1999. Such principal of and interest on this Class A-2 Investor Note
shall be paid in the manner specified on the reverse hereof and in the
Indenture.
The principal of and interest on this Class A-2 Investor 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. All
payments made by the Issuer with respect to this Class A-2 Investor Note shall
be applied as provided in the Indenture. This Class A-2 Investor Note does not
represent an interest in, or an obligation of, PHH Vehicle Management Services
LLC ("VMS") or any affiliate of VMS other than the Issuer.
Reference is made to the further provisions of this Class A-2
Investor Note set forth on the reverse hereof, which shall have the same effect
as though fully set forth on the face of this Class A-2 Investor Note. Although
a summary of certain provisions of the Indenture is set forth below and on the
reverse hereof and made a part hereof, this Class A-2 Investor Note does not
purport to summarize the Indenture and reference is made to the Indenture for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Issuer and the Indenture Trustee. A copy of the Indenture may be requested
from the Indenture Trustee by writing to the Indenture Trustee at: The Chase
Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
Capital Markets Fiduciary Services. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to them in the
Indenture.
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Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Class A-2 Investor Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory for any
purpose.
A-48
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
-------------------
Date: October 28, 1999 GREYHOUND FUNDING LLC
By:
------------------------------------
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Investor Notes issued under the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Indenture Trustee
By:
-------------------------------------------
Authorized Signatory
A-49
[REVERSE OF CLASS A-2 INVESTOR NOTE]
This Class A-2 Investor Note is one of a duly authorized issue
of Class A-2 Investor Notes of the Issuer designated its Series 1999-2 Floating
Rate Asset Backed Investor Notes (herein called the "CLASS A-2 INVESTOR NOTES"),
all issued under (i) a Base Indenture dated as of June 30, 1999 (such Base
Indenture, as amended or modified, is herein called the "BASE INDENTURE"),
between the Issuer and The Chase Manhattan Bank, as Indenture Trustee (the
"INDENTURE TRUSTEE", which term includes any successor Indenture Trustee under
the Base Indenture), and (ii) a Series 1999-2 Indenture Supplement dated as of
October 28, 1999 (the "SERIES 1999-2 INDENTURE SUPPLEMENT") between the Issuer
and the Indenture Trustee. The Base Indenture and the Series 1999-2 Supplement
are referred to herein as the "INDENTURE". The Class A-2 Investor Notes are
subject to all terms of the Indenture. All terms used in this Class A-2 Investor
Note that are defined in the Indenture, as supplemented, modified or amended,
shall have the meanings assigned to them in or pursuant to the Indenture, as so
supplemented, modified or amended.
The Class A-2 Investor Notes are and will be equally and
ratably secured by the Series 1999-2 Collateral pledged as security therefor as
provided in the Indenture and the Series 1999-2 Indenture Supplement.
Principal of the Class A-2 Investor Notes will be payable on
each Payment Date specified in and in the amounts described in the Indenture.
"PAYMENT DATE" means the 7th day of each month, or if such date is not a
Business Day, the next succeeding Business Day, commencing November 8, 1999.
The entire unpaid principal amount of this Series 1999-2
Investor Note shall be due and payable on the Class A-2 Final Maturity Date.
Notwithstanding the foregoing, principal on the Class A-2 Investor Notes will be
paid earlier during the Series 1999-2 Amortization Period as described in the
Indenture. All principal payments on the Class A-2 Investor Notes shall be made
pro rata to the Class A-2 Investor Noteholders entitled thereto.
The Issuer will have the option to prepay the Class A-2
Investor Notes, in whole but not in part, on any Payment Date if on such Payment
Date, the Series 1999-2 Invested Amount as of such date is less than or equal to
10% of the Series 1999-2 Initial Invested Amount. The prepayment price for the
Class A-2 Investor Notes will be equal to the amount set forth in the Indenture.
Interest will accrue on this Class A-2 Investor Notes for each
Series 1999-2 Interest Period at a rate equal to (i) with respect to the initial
Series 1999-2 Interest Period, 5.76% per annum and (ii) with respect to each
Series 1999-2 Interest Period thereafter, a rate per annum equal to One-Month
LIBOR for such Series 1999-2 Interest Period plus .35% per annum (the "CLASS A-2
NOTE RATE"). "ONE-MONTH LIBOR" means, for each Series 1999-2 Interest Period,
the rate per annum determined on the related LIBOR Determination Date by the
Calculation Agent to be the rate for Dollar deposits having a maturity equal to
one month that appears on Telerate Page 3750 at approximately 11:00 a.m., London
time, on such LIBOR Determination Date; PROVIDED, HOWEVER, that if such rate
does not appear on Telerate Page 3750, One-Month LIBOR will mean, for such
1999-2 Interest Period, the rate per annum equal to the
A-50
arithmetic mean (rounded to the nearest one-one-hundred-thousandth of one
percent) of the rates quoted by the Reference Banks to the Calculation Agent as
the rates at which deposits in Dollars are offered by the Reference Banks at
approximately 11:00 a.m., London time, on the LIBOR Determination Date to prime
banks in the London interbank market for a period equal to one month; PROVIDED,
FURTHER, that if fewer than two quotations are provided as requested by the
Reference Banks, "One-Month LIBOR" for such Series 1999-2 Interest Period will
mean the arithmetic mean (rounded to the nearest one-one-hundred-thousandth of
one percent) of the rates quoted by major banks in New York, New York selected
by the Calculation Agent, at approximately 10:00 a.m., New York City time, on
the first day of such Series 1999-2 Interest Period for loans in Dollars to
leading European banks for a period equal to one month; PROVIDED, FINALLY, that
if no such quotes are provided, "One-Month LIBOR" for such Series 1999-2
Interest Period will mean One-Month LIBOR as in effect with respect to the
preceding Series 1999-2 Interest Period.
The Issuer shall pay interest on overdue installments of
interest at the Class A-2 Note Rate to the extent lawful.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Class A-2 Investor Note may
be registered on the Note Register upon surrender of this Class A-2 Investor
Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Class A-2 Investor Notes of authorized denominations
in the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-2 Investor Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
By acquiring a Class A-2 Investor Note or an interest therein,
each Class A-2 Investor Noteholder and each Class A-2 Investor Note Owner and
the Issuer and the Indenture Trustee hereby covenants and agrees that, prior to
the date which is one year and one day after payment in full of all obligations
under each Securitization, it will not institute against, or join any other
Person in instituting against, the Origination Trust, SPV, any other Special
Purpose Entity, or any general partner or single member of any Special Purpose
Entity that is a partnership or limited liability company, respectively, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceedings under any federal or state bankruptcy or similar law.
Each Class A-2 Investor Noteholder, by acceptance of a Class
A-2 Investor Note or, in the case of a Class A-2 Investor Note Owner, a
beneficial interest in a Class A-2 Investor Note, hereby represents, warrants
and covenants that (a) each of the Lease SUBI and the Fleet Receivable SUBI is a
separate series of the Origination Trust as provided in Section 3806(b)(2) of
Chapter 38 of Title 12 of the Delaware Code, 12 DEL.C. ss. 3801 ET SEQ., (b)(i)
the debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to the Lease SUBI, the Lease SUBI Portfolio or
the Fleet Receivable SUBI shall be enforceable against the Lease SUBI Portfolio
or the Fleet Receivable SUBI only, as applicable, and not
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against any other SUBI Portfolio or the UTI Portfolio and (ii) the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to any other SUBI (used in this paragraph as defined in
the Origination Trust Agreement), any other SUBI Portfolio (used in this
paragraph as defined in the Origination Trust Agreement), the UTI or the UTI
Portfolio shall be enforceable against such other SUBI Portfolio or the UTI
Portfolio only, as applicable, and not against any other SUBI Assets, (c) except
to the extent required by law, UTI Assets or SUBI Assets with respect to any
SUBI (other than the Lease SUBI and the Fleet Receivable SUBI) shall not be
subject to the claims, debts, liabilities, expenses or obligations arising from
or with respect to the Lease SUBI or Fleet Receivable SUBI, respectively, in
respect of such claim, (d)(i) no creditor or holder of a claim relating to the
Lease SUBI, the Fleet Receivable SUBI or the Lease SUBI Portfolio shall be
entitled to maintain any action against or recover any assets allocated to the
UTI or the UTI Portfolio or any other SUBI or the assets allocated thereto, and
(ii) no creditor or holder of a claim relating to the UTI, the UTI Portfolio or
any SUBI other than the Lease SUBI or the Fleet Receivable SUBI or any SUBI
Assets other than the Lease SUBI Portfolio or the Fleet Receivables shall be
entitled to maintain any action against or recover any assets allocated to the
Lease SUBI or the Fleet Receivable SUBI, and (e) any purchaser, assignee or
pledgee of an interest in the Lease SUBI, the Lease SUBI Certificate, the Fleet
Receivable SUBI, the Lease SUBI Certificate, the Fleet Receivable SUBI
Certificate, any other SUBI, any other SUBI Certificate (used in this Section as
defined in the Origination Trust Agreement), the UTI or the UTI Certificate
must, prior to or contemporaneously with the grant of any such assignment,
pledge or security interest, (i) give to the Origination Trust a non-petition
covenant substantially similar to that set forth in Section 6.9 of the
Origination Trust Agreement, and (ii) execute an agreement for the benefit of
each holder, assignee or pledgee from time to time of the UTI or UTI Certificate
and any other SUBI or SUBI Certificate to release all claims to the assets of
the Origination Trust allocated to the UTI and each other SUBI Portfolio and in
the event that such release is not given effect, to fully subordinate all claims
it may be deemed to have against the assets of the Origination Trust allocated
to the UTI Portfolio and each other SUBI Portfolio.
Each Class A-2 Investor Noteholder or Class A-2 Investor Note
Owner, by acceptance of a Class A-2 Investor Note or, in the case of a Class A-2
Investor Note Owner, a beneficial interest in a Class A-2 Investor Note,
covenants and agrees that by accepting the benefits of the Indenture that such
Class A-2 Investor Noteholder or Class A-2 Investor Note Owner will not
institute against, or join with any other Person in instituting against, the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings, under any Federal or state bankruptcy or
similar law.
It is the intent of the Issuer, each Class A-2 Investor
Noteholder and each Class A-2 Investor Note Owner that, for Federal, state and
local income and franchise tax purposes only, the Class A-2 Investor Notes will
evidence indebtedness of the Issuer secured by the Series 1999-2 Collateral.
Each Class A-2 Investor Noteholder and each Class A-2 Investor Note Owner, by
the acceptance of this Class A-2 Investor Note, agrees to treat this Class A-2
Investor Note for purposes of Federal, state and local income and franchise
taxes and any other tax imposed on or measured by income, as indebtedness of the
Issuer.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Series 1999-2
Investor Notes under the Indenture at any time by the Issuer
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with the consent of the Holders of a Majority in Interest of the Series 1999-2
Investor Notes affected by such amendment or modification. The Indenture also
contains provisions permitting the Holders of Series 1999-2 Investor Notes
representing specified percentages of the aggregate outstanding amount of the
Series 1999-2 Investor Notes, on behalf of the Holders of all the Series 1999-2
Investor Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class A-2 Investor Note (or any
one or more predecessor Class A-2 Investor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this Class A-2 Investor
Note and of any Class A-2 Investor Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Class A-2 Investor Note. The Indenture also
permits the Indenture Trustee to amend or waive certain terms and conditions set
forth in the Indenture without the consent of Holders of the Series 1999-2
Investor Notes issued thereunder.
The term "Issuer" as used in this Class A-2 Investor Note
includes any successor to the Issuer under the Indenture.
The Class A-2 Investor Notes are issuable only in registered
form in denominations as provided in the Indenture, subject to certain
limitations set forth therein.
This Class A-2 Investor Note and the Indenture shall be
governed by, and construed in accordance with, the law of the State of New York,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such law.
No reference herein to the Indenture and no provision of this
Class A-2 Investor Note or of the Indenture shall alter or impair the obligation
of the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Class A-2 Investor Note at the times, place and rate, and in
the coin or currency herein prescribed.
Interests in this Unrestricted Global Note may be exchanged
for Definitive Notes, subject to the provisions of the Indenture.
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_______________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Class A-2 Investor Note and all rights thereunder, and hereby
irrevocably constitutes and appoints ____________________, attorney, to transfer
said Class A-2 Investor Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: By:
------------------------------ -------------------------------- (1)
Signature Guaranteed
------------------------------------
------------------------------------
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(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 Class A-1 Investor
Note, without alteration, enlargement or any change whatsoever.
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