Exhibit 4.3
CHESAPEAKE FUNDING LLC,
as Issuer
and
JPMORGAN CHASE BANK,
as Indenture Trustee
SERIES 2002-2 INDENTURE SUPPLEMENT
dated as of November __, 2002
to
BASE INDENTURE
dated as of June 30, 1999
$544,900,000
of
Floating Rate Callable Asset-Backed Investor Notes
Table of Contents
Page
PRELIMINARY STATEMENT..........................................................1
DESIGNATION....................................................................1
ARTICLE I DEFINITIONS..........................................................1
ARTICLE II ARTICLE 5 OF THE BASE INDENTURE....................................14
Section 5A.1 Establishment of Series 2002-2 Subaccounts................15
Section 5A.2 Allocations with Respect to the
Series 2002-2 Investor Notes..............................16
Section 5A.3 Determination of Interest.................................17
Section 5A.4 Monthly Application of Collections........................18
Section 5A.5 Payment of Monthly Interest Payment.......................21
Section 5A.6 Payment of Principal......................................22
Section 5A.7 The Administrator's Failure to Instruct the
Indenture Trustee to Make a Deposit or Payment............23
Section 5A.8 Series 2002-2 Reserve Account.............................23
Section 5A.9 Series 2002-2 Yield Supplement Account....................25
Section 5A.10 Series 2002-2 Distribution Account........................27
Section 5A.11 Lease Rate Caps...........................................27
ARTICLE III AMORTIZATION EVENTS...............................................29
ARTICLE IV OPTIONAL PREPAYMENT................................................31
ARTICLE V SERVICING AND ADMINISTRATOR FEES....................................31
Section 5.1 Servicing Fees..................................................31
Section 5.2 Administrator Fee...............................................32
ARTICLE VI FORM OF SERIES 2002-2 NOTES........................................32
Section 6.1 Initial Issuance of Series
2002-2 Investor Notes...........................................32
Section 6.2 Global Notes....................................................32
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Section 6.3 Definitive Notes...............................................33
ARTICLE VII INFORMATION.......................................................33
ARTICLE VIII MISCELLANEOUS....................................................33
Section 8.1 Ratification of Indenture.......................................33
Section 8.2 Obligations Unaffected..........................................33
Section 8.3 Governing Law...................................................33
Section 8.4 Further Assurances..............................................33
Section 8.5 Exhibits........................................................34
Section 8.6 No Waiver; Cumulative Remedies..................................34
Section 8.7 Amendments......................................................34
Section 8.8 Severability....................................................34
Section 8.9 Counterparts....................................................34
Section 8.10 No Bankruptcy Petition.........................................34
Section 8.11 SUBIs..........................................................35
Section 8.12 Notice to Rating Agencies......................................36
Section 8.13 Conflict of Instructions.......................................36
EXHIBITS
Exhibit A-1: Form of Class A-1 Note
Exhibit A-2: Form of Class A-2 Note
Exhibit A-3: Form of Class B Note
Exhibit B: Form of Monthly Settlement Statement
Exhibit C: Form of Series 2002-2 Lease Rate Cap
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SERIES 2002-2 SUPPLEMENT, dated as of November ___, 2002 (as amended,
supplemented, restated or otherwise modified from time to time, this "Indenture
Supplement") between CHESAPEAKE FUNDING LLC (formerly known as Greyhound Funding
LLC), a special purpose limited liability company established under the laws of
Delaware (the "Issuer"), and JPMORGAN CHASE BANK (formerly known as The Chase
Manhattan Bank) ("JPMorgan 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 Series 2002-2 Floating Rate
Callable Asset Backed Investor Notes.
The Series 2002-2 Investor Notes shall be issued in three classes: (i)
Series 2002-2 Floating Rate Callable Asset Backed Investor Notes, Class A-1,
which shall be designated generally as the Class A-1 Investor Notes; (ii) Series
2002-2 Floating Rate Callable Asset Backed Investor Notes, Class A-2, which
shall be designated generally as the Class A-2 Investor Notes; and (iii) Series
2002-2 Floating Rate Callable Asset Backed Investor Notes, Class B, which shall
be designated generally as the Class B Investor Notes. The Class A-1 Investor
Notes, the Class A-2 Investor Notes and the Class B Investor Notes are referred
to herein collectively as the "Series 2002-2 Investor Notes." The Series 2002-2
Investor Notes shall be issued in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof.
The net proceeds from the sale of the Series 2002-2 Investor Notes (as
defined herein) shall be deposited in the Series 2002-2 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 I
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
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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 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 2002-2 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 2002-2 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:
"Additional Interest" is defined in Section 5A.3(c).
"Amortization Event" is defined in Article 3.
"Assumed Lease Term" means, with respect to any Series 2002-2 Yield
Shortfall Lease, the number of months over which the Capitalized Cost of
the related Leased Vehicle is being depreciated thereunder.
"Authorized Newspaper" means a daily newspaper published in the
English language of general circulation in Luxembourg (or if publication is
not practical in Luxembourg, in Europe).
"Avis" means Avis Group Holdings, Inc. and its successors and assigns.
"Calculation Agent" means JPMorgan Chase Bank, in its capacity as
calculation agent with respect to the Series 2002-2 Note Rates.
"Cendant" means Cendant Corporation and its successors and assigns.
"Class A-1 Final Maturity Date" means the November 2007 Payment Date.
"Class A-1 Initial Invested Amount" means the aggregate initial
principal amount of the Class A-1 Investor Notes, which is $255,000,000.
"Class A Interest Shortfall Amount" is defined in Section 5A.3(c).
"Class A Monthly Interest Payment" is defined in Section 5A.3(c).
"Class A-1 Interest Shortfall Amount" is defined in Section 5A.3(c).
"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.
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"Class A-1 Investor Notes" means any one of the Series 2002-2 Floating
Rate Callable 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. 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.
"Class A-1 Monthly Interest" means, with respect to any Series 2002-2
Interest Period, an amount equal to the product of (i) the Class A-1 Note
Rate for such Series 2002-2 Interest Period, (ii) the Class A-1 Invested
Amount on the first day of such Series 2002-2 Interest Period, after giving
effect to any principal payments made on such date, or, in the case of the
initial Series 2002-2 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 2002-2 Interest Period and the denominator of which is 360.
"Class A-1 Note Rate" means, (i) with respect to the initial Series
2002-2 Interest Period, ____% per annum and (ii) with respect to each
Series 2002-2 Interest Period thereafter, a rate per annum equal to
One-Month LIBOR for such Series 2002-2 Interest Period plus ____% per
annum.
"Class A-2 Final Maturity Date" means the November 2014 Payment Date.
"Class A-2 Initial Invested Amount" means the aggregate initial
principal amount of the Class A-2 Investor Notes, which is $245,000,000.
"Class A-2 Interest Shortfall Amount" is defined in Section 5A.3(c).
"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 2002-2 Floating
Rate Asset Backed Callable 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. 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 2002-2
Interest Period, an amount equal to the product of (i) the Class A-2 Note
Rate for such Series 2002-2 Interest Period, (ii) the Class A-2 Invested
Amount on the first day of such Series 2002-2 Interest Period, after giving
effect to any principal payments made on such date, or, in the case of the
initial Series 2002-2 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 2002-2 Interest Period and the denominator of which is 360.
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"Class A-2 Note Rate" means, (i) with respect to the initial
Series 2002-2 Interest Period, ____% per annum and (ii) with respect to
each Series 2002-2 Interest Period thereafter, a rate per annum equal
to One-Month LIBOR for such Series 2002-2 Interest Period plus ____%
per annum.
"Class B Final Maturity Date" means the November 2014 Payment
Date.
"Class B Initial Invested Amount" means the aggregate initial
principal amount of the Class B Investor Notes, which is $44,900,000.
"Class B Interest Shortfall Amount" is defined in Section
5A.3(c).
"Class B Invested Amount" means, as of any date of determination,
an amount equal to (a) the Class B Initial Invested Amount minus (b)
the amount of principal payments made to Class B Investor Noteholders
on or prior to such date.
"Class B Investor Noteholder" means the Person in whose name a
Class B Investor Note is registered in the Note Register.
"Class B Investor Notes" means any one of the Series 2002-2
Floating Rate Asset Backed Callable Investor Notes, Class B, executed
by the Issuer and authenticated by or on behalf of the Indenture
Trustee, substantially in the form of Exhibit A-3. Definitive Class B
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 B Monthly Interest" means, with respect to any Series
2002-2 Interest Period, an amount equal to the product of (i) the
Class B Note Rate for such Series 2002-2 Interest Period, (ii) the
Class B Invested Amount on the first day of such Series 2002-2
Interest Period, after giving effect to any principal payments made on
such date, or, in the case of the initial Series 2002-2 Interest
Period, the Class B Initial Invested Amount and (iii) a fraction, the
numerator of which is the number of days in such Series 2002-2
Interest Period and the denominator of which is 360.
"Class B Monthly Interest Payment" is defined in Section 5A.3(c)
"Class B Note Rate" means, (i) with respect to the initial Series
2002-2 Interest Period, ___% per annum and (ii) with respect to each
Series 2002-2 Interest Period thereafter, a rate per annum equal to
One-Month LIBOR for such Series 2002-2 Interest Period plus ___% per
annum.
"Deficiency" is defined in Section 5A.4(b)(i).
"Dividend Amount" means, with respect to any Payment Date, the
aggregate amount of dividends payable to the Series 2002-2 Preferred
Members in respect of their Series 2002-2 Preferred Membership
Interests pursuant to the LLC Agreement.
"Dollar", "US$" and "$" means lawful currency of the United
States.
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"DTC" means The Depository Trust Company or its successor, as the
Clearing Agency for the Series 2002-2 Investor Notes.
"Final Maturity Date" means the (i) Class A-1 Final Maturity
Date, (ii) the Class A-2 Final Maturity Date or (iii) the Class B
Final Maturity Date.
"Indenture Supplement" has the meaning set forth in the preamble.
"Interest Shortfall Amount" is defined in Section 5A.3(c).
"LIBOR Determination Date" means, with respect to any Series
2002-2 Interest Period, the second London Business Day next preceding
the first day of such Series 2002-2 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 2002-2 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 2002-2 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 2002-2 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 2002-2 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 2002-2 Interest Period will mean One-Month
LIBOR as in effect with respect to the preceding Series 2002-2
Interest Period.
"Outstanding" means, with respect to the Series 2002-2 Investor
Notes, all Series 2002-2 Investor Notes theretofore authenticated and
delivered under the Indenture, except (a) Series 2002-2 Investor Notes
theretofore canceled or delivered to the Transfer Agent and Registrar
for cancellation, (b) Series 2002-2 Investor Notes which have not been
presented for payment but funds for the payment of which are on
deposit in the Series 2002-2 Distribution Account and are available
for payment of such Series 2002-2
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Investor Notes, and Series 2002-2 Investor Notes which are considered
paid pursuant to Section 11.1 of the Base Indenture, or (c) Series
2002-2 Investor Notes in exchange for or in lieu of other Series
2002-2 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 2002-2 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
January 7, 2003.
"PHH" means PHH Corporation and its successors and assigns.
"Prepayment Date" is defined in Article 4.
"Rating Agencies" means, with respect to the Series 2002-2
Investor Notes, Standard & Poor's, ▇▇▇▇▇'▇ and any other nationally
recognized rating agency rating the Series 2002-2 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 2002-2 Investor Notes or of any Series
2002-2 Preferred Membership Interests.
"Record Date" means, with respect to each Payment Date, the last
day of the immediately preceding calendar month.
"Reference Banks" means four major banks in the London interbank
market selected by the Calculation Agent.
"Series 2002-2" means Series 2002-2, the Principal Terms of which
are set forth in this Indenture Supplement.
"Series 2002-2 Administrator Fee" is defined in Section 5.2.
"Series 2002-2 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 2002-2 Required Asset Amount as
of such date and the denominator of which is the sum of (x) the Series
2002-2 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 2002-2 Allocated Asset Amount Deficiency" means, as of
any date of determination, the amount, if any, by which the Series
2002-2 Allocated Adjusted
7
Aggregate Unit Balance is less than the Series 2002-2 Required Asset
Amount as of such date.
"Series 2002-2 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 2002-2 Investor Notes and
(b) the close of business on the Period End Date in March 2004 and
ending on the date when (i) the Series 2002-2 Investor Notes are fully
paid, (ii) all dividends accrued and accumulated on the Series 2002-2
Preferred Membership Interests shall have been declared and paid in
full, (iii) the Series 2002-2 Preferred Membership Interests shall
have been redeemed in accordance with their terms and (iv) all amounts
owing in respect of the Series 2002-2 Preferred Membership Interests
under the Series 2002-2 Preferred Membership Interest Purchase
Agreement shall have been paid in full by the Issuer.
"Series 2002-2 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 2002-2
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 2002-2 Settlement Collection
Subaccount pursuant to paragraphs (i) through (xii) of Section 5A.4(c)
on such Settlement Date, and (ii) any amounts owing in respect of the
Series 2002-2 Preferred Membership Interests under the Series 2002-2
Preferred Membership Interest Purchase Agreement on such Settlement
Date.
"Series 2002-2 Basic Servicing Fee" is defined in Section 5.1.
"Series 2002-2 Closing Date" means November __, 2002.
"Series 2002-2 Collateral" means the Collateral, the Series
2002-2 Reserve Account, the Series 2002-2 Yield Supplement Account,
the Series 2002-2 Distribution Account and the Series 2002-2 Lease
Rate Caps.
"Series 2002-2 Collection Subaccount" is defined in Section
5A.1(a).
"Series 2002-2 Distribution Account" is defined in Section
5A.10(a).
"Series 2002-2 Eligible Counterparty" means a financial
institution having on the date of any acquisition of a Lease Rate Cap
short-term debt ratings of at least A-1 by Standard & Poor's and P-1
by ▇▇▇▇▇'▇ and long-term unsecured debt ratings of at least A+ by
Standard & Poor's and Aa3 by ▇▇▇▇▇'▇.
"Series 2002-2 Excess Fleet Receivable Amount" means, for any
Settlement Date, an amount equal to the product of (a) the average
daily Series 2002-2 Invested Percentage
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during the immediately preceding Monthly Period and (b) the Excess
Fleet Receivable Amount for such Settlement Date.
"Series 2002-2 Gain on Sale Account Percentage" means 10%.
"Series 2002-2 Global Notes" is defined in Section 6.2.
"Series 2002-2 Hypothetical Yield Shortfall Amount" means, for
any Settlement Date, an amount equal to the product of (x) the excess,
if any, of the Series 2002-2 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 2002-2 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.
"Series 2002-2 Initial Invested Amount" means the sum of (i) the
Class A-1 Initial Invested Amount, (ii) the Class A-2 Initial Invested
Amount and (iii) the Class B Initial Invested Amount.
"Series 2002-2 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 2002-2 Interest Period shall commence on and include the Series
2002-2 Closing Date and end on and include December 8, 2002.
"Series 2002-2 Invested Amount" means, as of any date of
determination, the sum of (i) the Class A-1 Invested Amount, (ii) the
Class A-2 Invested Amount and (iii) the Class B Invested Amount.
"Series 2002-2 Invested Percentage" means, with respect to any
Business Day (i) during the Series 2002-2 Revolving Period, the
percentage equivalent (which percentage shall never exceed 100%) of a
fraction the numerator of which shall be equal to the Series 2002-2
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 2002-2 Amortization Period, the percentage
equivalent (which percentage shall never exceed 100%) of a fraction
the numerator of which shall be equal to the Series 2002-2 Allocated
Adjusted Aggregate Unit Balance as of the end of the Series 2002-2
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.
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"Series 2002-2 Investor Noteholder" means, collectively, the
Class A-1 Investor Noteholders, the Class A-2 Investor Noteholders and
the Class B Investor Noteholders.
"Series 2002-2 Investor Note Owner" means, with respect to a
Series 2002-2 Global Note, the Person who is the beneficial owner of
an interest in such Series 2002-2 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 2002-2 Investor Notes" means, collectively, the Class A-1
Investor Notes, the Class A-2 Investor Notes and the Class B Investor
Notes.
"Series 2002-2 Junior Preferred Membership Interests" means the
Junior Preferred Membership Interests relating to the Series 2002-2
Investor Notes, if any, issued by the Issuer pursuant to the LLC
Agreement.
"Series 2002-2 Lease Rate Cap" means one or more interest rate
caps, substantially in the form of Exhibit C, from a Series 2002-2
Eligible Counterparty.
"Series 2002-2 Liquid Credit Enhancement Deficiency" means, on
any date of determination, the amount by which the Series 2002-2
Reserve Account Amount is less than the Series 2002-2 Required Reserve
Account Amount.
"Series 2002-2 Minimum Yield Rate" means, for any Settlement
Date, a rate per annum equal to the sum of (i) the Series 2002-2
Weighted Average Cost of Funds for such Settlement Date, (ii) 0.225%
and (iii) 0.48%.
"Series 2002-2 Monthly Interest" means, with respect to any
Series 2002-2 Interest Period, the sum of (i) Class A-1 Monthly
Interest, (ii) Class A-2 Monthly Interest and (iii) Class B Monthly
Interest for such Series 2002-2 Interest Period.
"Series 2002-2 Monthly Residual Value Gain" means, for any
Settlement Date, an amount equal to the product of (a) the average
daily Series 2002-2 Invested Percentage during the immediately
preceding Monthly Period and (b) the Monthly Residual Value Gain for
such Settlement Date.
"Series 2002-2 Note Rate" means (i) the Class A-1 Note Rate, (ii)
the Class A-2 Note Rate and (iii) the Class B Note Rate, as the
context may require.
"Series 2002-2 Note Termination Date" means the date on which the
Series 2002-2 Investor Notes are fully paid.
"Series 2002-2 Preferred Member Distribution Account" means the
account established in respect of the Series 2002-2 Preferred
Membership Interests pursuant to the LLC Agreement.
"Series 2002-2 Preferred Members" means the registered holders of
the Series 2002-2 Preferred Membership Interests.
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"Series 2002-2 Preferred Membership Interest Purchase Agreement"
means, collectively, one or more purchase agreements among the Issuer,
one or more purchasers of the Series 2002-2 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 2002-2 Junior Preferred
Membership Interests among the Issuer, one or more purchasers of the
Series 2002-2 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 2002-2 Preferred Membership Interests" means the Series
2002-2 Senior Preferred Membership Interests, if any, and the Series
2002-2 Junior Preferred Membership Interests, if any.
"Series 2002-2 Principal Collection Subaccount" is defined in
Section 5A.1(a).
"Series 2002-2 Principal Payment Amount" means, for any
Settlement Date, an amount equal to the product of (a) the average
daily Series 2002-2 Invested Percentage during the immediately
preceding Monthly Period and (b) the Principal Payment Amount for such
Settlement Date.
"Series 2002-2 Required Asset Amount" means, as of any date of
determination, the sum of the Series 2002-2 Invested Amount and the
Series 2002-2 Required Overcollateralization Amount as of such date.
"Series 2002-2 Required Enhancement Amount" means, on any date,
the Series 2002-2 Required Percentage on such date of the Series
2002-2 Initial Invested Amount plus; if the Three-Month Average
Residual Value Loss Ratio with respect to the most recent Settlement
Date exceeded 12.50%, an amount equal to the product of (a) the Series
2002-2 Invested Percentage as the last day of the Monthly Period
immediately preceding such Settlement Date and (b) 90% of the amount
by which the Aggregate Residual Value Amount exceeded the Excess
Residual Value Amount, in each case, as of that date; provided,
however, that, after the declaration or occurrence of an Amortization
Event, the Series 2002-2 Required Enhancement Amount shall equal the
Series 2002-2 Required Enhancement Amount on the date of the
declaration or occurrence of such Amortization Event.
"Series 2002-2 Required Investor Noteholders" means (a) so long
as any Class A-1 Investor Notes or Class A-2 Investor Notes are
Outstanding, Class A-1 Investor Noteholders and Class A-2 Investor
Noteholders holding more than 50% of the sum of the Class A-1 Invested
Amount and the Class A-2 Invested Amount (excluding any Class A-1
Investor Note or Class A-2 Investor Note held by the Issuer or any
Affiliate of the Issuer) and (b) so long as any Class B Investor Notes
are Outstanding and no Class A-1 Investor Notes or Class A-2 Investor
Notes are Outstanding, Class B Investor Noteholders holding more than
50% of the Class B Invested Amount (excluding any Class B Investor
Note held by the Issuer or any Affiliate of the Issuer).
11
"Series 2002-2 Required Lease Rate Cap" means one or more Series
2002-2 Lease Rate Caps having, in the aggregate, a notional amount on
each Payment Date equal to the lesser of (x) the average daily Series
2002-2 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 2002-2 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 Series 2002-2
Invested Amount 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 2002-2 Required Overcollateralization Amount" means, on
any date of determination during an Accrual Period, the amount by
which the Series 2002-2 Required Enhancement Amount exceeds the sum of
(a) the Series 2002-2 Reserve Account Amount and (b) the amount on
deposit in the Series 2002-2 Principal Collection 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 2002-2 Required Percentage" means, on any date of
determination, 5.871% unless:
(a) for the most recent Settlement Date all of the following were
true:
(i) the Three Month Average Charge-Off Ratio was 0.50 % or less;
(ii) the Twelve Month Average Charge-Off Ratio was 0.25% or less;
(iii) the Three Month Average Residual Value Loss Ratio was
10.00% or less;
(iv) the Twelve Month Average Residual Value Loss Ratio was 5.00%
or less;
(v) the Three Month Average Paid-In Advance Loss Ratio was 1.00%
or less;
(vi) the Twelve Month Average Paid-In Advance Loss Ratio was
0.50% or less; and
(vii) the Three Month Average Delinquency Ratio was 4.50% or
less;
in which case, the Series 2002-2 Required Percentage on such date will
equal 5.163% or
(b) for the most recent Settlement Date any one of the following
was true:
(i) the Three Month Average Charge-Off Ratio exceeded 0.75%;
12
(ii) the Twelve Month Average Charge-Off Ratio exceeded 0.50%;
(iii) the Three Month Average Residual Value Loss Ratio exceeded
12.50%;
(iv) the Twelve Month Average Residual Value Loss Ratio exceeded
10.00%;
(v) the Twelve Month Average Paid-In Advance Loss Ratio exceeded
0.75%; or
(vi) the Three Month Average Delinquency Ratio exceeded 6.00%;
in which case, the Series 2002-2 Required Percentage on such date will
equal 6.787%.
"Series 2002-2 Required Reserve Account Amount" means an amount
equal to 2.062% of the Series 2002-2 Initial Invested Amount.
"Series 2002-2 Required Yield Supplement Amount" means, on any
Settlement Date, the excess, if any, of (a) the Series 2002-2 Yield
Shortfall Amount for such Settlement Date over (b) 70% of the product
of (x) the Series 2002-2 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 2002-2 Required Yield Supplement Amount
on any Settlement Date will equal the Series 2002-2 Yield Shortfall
Amount for such Settlement Date.
"Series 2002-2 Reserve Account" is defined in Section 5A.8(a).
"Series 2002-2 Reserve Account Amount" means, on any date of
determination, the amount on deposit in the Series 2002-2 Reserve
Account and available for withdrawal therefrom.
"Series 2002-2 Reserve Account Surplus" means, on any date of
determination, the amount, if any, by which the Series 2002-2 Reserve
Account Amount exceeds the Series 2002-2 Required Reserve Account
Amount.
"Series 2002-2 Revolving Period" means the period from and
including the Series 2002-2 Closing Date to but excluding the
commencement of the Series 2002-2 Amortization Period.
"Series 2002-2 Senior Preferred Membership Interests" means each
series of Senior Preferred Membership Interests relating to the Series
2002-2 Investor Notes, if any, issued by the Issuer pursuant to the
LLC Agreement.
"Series 2002-2 Series Servicing Fee Percentage" is defined in
Section 5.1.
"Series 2002-2 Supplemental Servicing Fee" is defined in Section
5.1.
"Series 2002-2 Settlement Collection Subaccount" is defined in
Section 5A.1(a).
13
"Series 2002-2 Subaccounts" is defined in Section 5A.1(a).
"Series 2002-2 Weighted Average Cost of Funds" means, for any
Settlement Date, the product of (a) the quotient of the sum of (i)
aggregate amount of interest payable on the Series 2002-2 Investor
Notes on such Settlement Date and (ii) the aggregate amount of
dividends payable on the Series 2002-2 Preferred Membership Interests
on such Settlement Date, divided by the sum of (i) the Series 2002-2
Invested Amount as of the first day of the immediately preceding
Series 2002-2 Interest Period and (ii) the aggregate stated
liquidation preference of the Series 2002-2 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
2002-2 Interest Period ending on such Settlement Date.
"Series 2002-2 Weighted Average Yield Shortfall" means, for any
Settlement Date, the excess, if any, of (a) the Series 2002-2 Minimum
Yield Rate for such Settlement Date over (b) the Series 2002-2
Weighted Average Yield Shortfall Lease Yield for such Settlement Date.
"Series 2002-2 Weighted Average Yield Shortfall Lease Yield"
means, for any Settlement Date, the quotient of the sum of the product
with respect to each Series 2002-2 Yield Shortfall Lease of (a) the
actual or implicit finance charge rate applicable to such Series
2002-2 Yield Shortfall Lease and (b) the Net Book Value of the Leased
Vehicle subject to such Series 2002-2 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 2002-2 Yield Shortfall Leases as of the last day of the
immediately preceding Monthly Period.
"Series 2002-2 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 2002-2 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 2002-2 Yield Shortfall
Leases to Fixed Rate Leases, as of the last day of the immediately
preceding Monthly Period.
"Series 2002-2 Yield Shortfall Amount" means, for any Settlement
Date, (i) if the Series 2002-2 Hypothetical Yield Shortfall Amount for
such Settlement Date is less than 70% of the product of the Series
2002-2 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 2002-2
Hypothetical Yield Shortfall Amount and (ii) otherwise, an amount
equal to the product of (x) the Series 2002-2 Weighted Average Yield
Shortfall for such Settlement Date, (y) the Series 2002-2 Invested
Percentage on such Settlement Date of the aggregate Lease Balance of
all Series 2002-2 Yield Shortfall Leases as of the last day of the
immediately preceding Monthly Period and (z) the Series 2002-2
Weighted Average Yield Shortfall Life for such Settlement Date.
14
"Series 2002-2 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 2002-2 Minimum
Yield Rate as of the last day of the immediately preceding Monthly
Period.
"Series 2002-2 Yield Supplement Account" is defined in Section
5A.9(a).
"Series 2002-2 Yield Supplement Account Amount" means, on any
date of determination, the amount on deposit in the Series 2002-2
Yield Supplement Account and available for withdrawal therefrom.
"Series 2002-2 Yield Supplement Account Surplus" means, on any
date of determination, the amount, if any, by which the Series 2002-2
Yield Supplement Account Amount exceeds the Series 2002-2 Required
Yield Supplement Amount.
"Series 2002-2 Yield Supplement Deficiency" means, on any date of
determination, the amount by which the Series 2002-2 Yield Supplement
Account Amount is less than the Series 2002-2 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 2002-2 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 2002-2 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 2002-2 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 2002-2 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
2002-2 Principal Collection Subaccount and the Series 2002-2 General
Collection Subaccount transferred to the Series 2002-2 Settlement
Collection Subaccount on such Settlement Date pursuant to Section
5A.1(b) over (b) the amount withdrawn from the Series 2002-2 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.
ARTICLE II
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
15
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 2002-2 Investor Notes:
Section 5A.1 Establishment of Series 2002-2 Subaccounts.
(a) The Indenture Trustee shall establish and maintain in the name of
the Indenture Trustee for the benefit of the Series 2002-2 Investor Noteholders
(i) a subaccount of the Collection Account (the "Series 2002-2 Collection
Subaccount"); and (ii) three subaccounts of the Series 2002-2 Collection
Subaccount: (1) the Series 2002-2 General Collection Subaccount, (2) the Series
2002-2 Principal Collection Subaccount and (3) the Series 2002-2 Settlement
Collection Subaccount (respectively, the "Series 2002-2 General Collection
Subaccount," the "Series 2002-2 Principal Collection Subaccount" and the "Series
2002-2 Settlement Collection Subaccount"); the accounts established pursuant to
this Section 5A.1(a), collectively, the "Series 2002-2 Subaccounts"), each
Series 2002-2 Subaccount to bear a designation indicating that the funds
deposited therein are held for the benefit of the Series 2002-2 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 2002-2 Subaccounts and the proceeds thereof for the
benefit of the Series 2002-2 Investor Noteholders. The Series 2002-2 Subaccounts
shall be under the sole dominion and control of the Indenture Trustee for the
benefit of the Series 2002-2 Investor Noteholders.
(b) The Issuer shall instruct the institution maintaining the
Collection Account in writing to invest funds on deposit in the Series 2002-2
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 2002-2 Subaccount may be invested together with funds held in other
subaccounts of the Collection Account. Amounts on deposit and available for
investment in the Series 2002-2 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
2002-2 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 2002-2 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 2002-2 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 2002-2 Principal
Collection Subaccount and the Series 2002-2 General Collection Subaccount shall
be deposited in the Series 2002-2 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.
16
Section 5A.2 Allocations with Respect to the Series 2002-2 Investor
Notes.
(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 2002-2 Investor Noteholders and deposit in the Series 2002-2 General
Collection Subaccount an amount equal to the product of the Series 2002-2
Invested Percentage on such Deposit Date and the Collections deposited into the
Collection Account on such Deposit Date.
(b) On the Series 2002-2 Closing Date, the Indenture Trustee shall (i)
deposit in the Series 2002-2 Settlement Collection Subaccount $_____________
from the net proceeds from the sale of the Series 2002-2 Investor Notes and (2)
deposit the remainder of the net proceeds from the sale of the Series 2002-2
Investor Notes in the Series 2002-2 Principal Collection Subaccount.
(c) On each Determination Date, the Administrator shall direct the
Indenture Trustee in writing to allocate to the Series 2002-2 Investor
Noteholders and deposit in the Series 2002-2 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 2002-2 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 2002-2 Investor
Noteholders and deposit in the Series 2002-2 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 2002-2 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 2002-2 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 2002-2 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
2002-2 Lease Rate Cap.
17
(e) During the Series 2002-2 Revolving Period, the Administrator may
direct the Indenture Trustee in writing on any Business Day to withdraw amounts
on deposit in the Series 2002-2 Principal Collection Subaccount for either of
the following purposes:
(i) if such Business Day is an Additional Closing Date, to remit all
or a portion of the Transferred Asset Payment due on such Additional
Closing Date pursuant to the Transfer Agreement; or
(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
2002-2 Settlement Collection Subaccount pursuant to paragraphs (i) through (xii)
of Section 5A.4(c) on such Settlement Date and any amounts owing in respect of
the Series 2002-2 Preferred Membership Interests under the Series 2002-2
Preferred Membership Interest Purchase Agreement on such Settlement Date, the
Administrator may direct the Indenture Trustee in writing to withdraw from the
Series 2002-2 General Collection Subaccount and remit to the Issuer the Series
2002-2 Available Excess Collections Amount for such Business Day.
Section 5A.3 Determination of Interest.
(a) JPMorgan Chase is hereby appointed Calculation Agent for the
purpose of determining the Series 2002-2 Note Rates for each Series 2002-2
Interest Period. On each LIBOR Determination Date, the Calculation Agent shall
determine the Series 2002-2 Note Rate for each Class of Series 2002-2 Investor
Notes for the next succeeding Series 2002-2 Interest Period and deliver notice
of such Series 2002-2 Note Rates to the Indenture Trustee. On each LIBOR
Determination Date, the Indenture Trustee shall deliver to the Administrator
notice of the Series 2002-2 Note Rate for each Class of Series 2002-2 Investor
Notes for the next succeeding Series 2002-2 Interest Period.
(b) Until the Administrator shall give the Indenture Trustee written
notice that no Class of the Series 2002-2 Investor Notes is listed on the
Luxembourg Stock Exchange, the Indenture Trustee shall, or shall instruct the
Calculation Agent to, cause (i) the Series 2002-2 Note Rate applicable to each
Class of the Series 2002-2 Investor Notes for the next succeeding Series 2002-2
Interest Period, the number of days in such Series 2002-2 Interest Period, the
Payment Date for such Series 2002-2 Interest Period and the amount of interest
payable on each Class of Series 2002-2 Investor Notes on such Payment Date to be
(A) communicated to DTC, 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 (a)
the excess, if any (the "Class A Interest Shortfall Amount"), of (i) the sum of
(A) the Class A-1 Monthly Interest for the Series 2002-2 Interest Period ending
on the next
18
succeeding Payment Date, (B) the Class A-2 Monthly Interest for the Series
2002-2 Interest Period ending on the next succeeding Payment Date and (C) the
amount of any unpaid Class A Interest Shortfall Amount, as of the preceding
Payment Date (together with any Additional Interest on such Class A Interest
Shortfall Amount) (such sum, the "Class A Monthly Interest Payment") over (ii)
the amount which will be available to pay interest on the Series 2002-2 Investor
Notes in accordance with Section 5A.4(c)(v) on such Payment Date, and (b) the
excess, if any (the "Class B Interest Shortfall Amount"), of (i) the sum of (A)
the Class B Monthly Interest for the Series 2002-2 Interest Period ending on the
next succeeding Payment Date and (B) the amount of any unpaid Class B Interest
Shortfall Amount, as of the preceding Payment Date (together with any Additional
Interest on such Class B Interest Shortfall Amount) (such sum, the "Class B
Monthly Interest Payment") over (ii) the excess, if any, of (A) the amount which
will be available to pay interest on the Series 2002-2 Investor Notes in
accordance with Section 5A.4(c)(v) on such Payment Date over (B) the Class A
Monthly Interest Payment for such Payment Date. If the Class A Interest
Shortfall Amount with respect to any Payment Date is greater than zero, payments
of interest to the Class A-1 Investor Noteholders and the Class A-2 Investor
Noteholders will be reduced on a pro rata basis, based on the amount of interest
payable to each such Class A-1 Investor Noteholder and Class A-2 Investor
Noteholder, by the amount of the Class A Interest Shortfall Amount. The portion
of the Class A Interest Shortfall Amount allocable to the Class A-1 Investor
Notes and to the Class A-2 Investor Notes shall be referred to as the "Class A-1
Interest Shortfall Amount" and the "Class A-2 Interest Shortfall Amount,"
respectively. If the Class B Interest Shortfall Amount with respect to any
Payment Date is greater than zero, payments of interest to the Class B Investor
Noteholders will be reduced on a pro rata basis by the amount of the Class B
Interest Shortfall Amount. An additional amount of interest ("Additional
Interest") shall accrue on the Class A-1 Interest Shortfall Amount, the Class
A-2 Interest Shortfall Amount and the Class B Interest Shortfall Amount
(collectively, the "Interest Shortfall Amount") for each Series 2002-2 Interest
Period at the applicable Series 2002-2 Note Rate for such Series 2002-2 Interest
Period. Until the Administrator shall give the Indenture Trustee written notice
that no Class of the Series 2002-2 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 2002-2 Investor Notes, the amount of interest to be paid on any Class of
the Series 2002-2 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
2002-2 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 2626 5155, 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 2002-2 General
Collection Subaccount and allocate to the Series 2002-2 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 2002-2 General
Collection Subaccount and the Series 2002-2 Principal Collection Subaccount
transferred to the Series 2002-2 Settlement Collection Subaccount pursuant to
Section 5A.1(b)).
19
(b) (i) If the Administrator determines that the aggregate amount
distributable from the Series 2002-2 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 2002-2 Reserve Account and deposit in the Series 2002-2 Settlement
Collection Subaccount an amount equal to the least of (x) such Deficiency, (y)
the product of the average daily Series 2002-2 Invested Percentage during the
immediately preceding Monthly Period and Aggregate Net Lease Losses for such
Monthly Period and (z) the Series 2002-2 Reserve Account Amount and, to the
extent that such amount is less than the Deficiency, withdraw from the Series
2002-2 Yield Supplement Account and deposit in the Series 2002-2 Settlement
Collection Subaccount an amount equal to the lesser of the amount of such
insufficiency and the Series 2002-2 Yield Supplement Account Amount. If the
Deficiency with respect to any Payment Date exceeds the amounts to be withdrawn
from the Series 2002-2 Reserve Account and the Series 2002-2 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 2002-2 Reserve Account
and deposit in the Series 2002-2 Settlement Collection Subaccount an amount
equal to the lesser of (x) the remaining portion of the Deficiency and (y) the
Series 2002-2 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 2002-2 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, (B) the amount to be deposited in the Series 2002-2 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 or (C) the amount to be deposited in the
Series 2002-2 Distribution Account in accordance with Section 5A.4(c)(ix) and
paid to the Class B Investor Noteholders pursuant to Section 5A.6 on the Class B
Final Maturity Date is less than the Class B 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 2002-2 Reserve Account and deposit in the Series 2002-2 Distribution
Account an amount equal to the lesser of such insufficiency and the Series
2002-2 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 2002-2 Reserve Account Amount is less than such insufficiency on the
Class B 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 B 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 B Final Maturity Date, withdraw from the Series 2002-2
Yield
20
Supplement Account and deposit in the Series 2002-2 Distribution Account an
amount equal to the lesser of such remaining insufficiency and the Series 2002-2
Yield Supplement Account Amount (after giving effect to any withdrawal therefrom
pursuant to Section 5A.4(b)(i) on the Class B Final Maturity Date).
(c) On each Payment Date, based solely on the information contained in
the Monthly Settlement Statement with respect to Series 2002-2 Investor Notes,
the Indenture Trustee shall apply the following amounts allocated to, or
deposited in, the Series 2002-2 Settlement Collection Subaccount on such Payment
Date in the following order of priority:
(i) to SPV, an amount equal to the Series 2002-2 Excess Fleet
Receivable Amount, if any, for such Payment Date;
(ii) to the Gain On Sale Account, an amount equal to the Series 2002-2
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 2002-2 Invested Percentage during the immediately preceding
Monthly Period;
(iv) if VMS is not the Servicer, to the Servicer, an amount equal to
the Series 2002-2 Basic Servicing Fee for the Series 2002-2 Interest Period
ending on such Payment Date plus, on the first Payment Date following the
transfer of the servicing from VMS to a successor Servicer pursuant to
Section 9.1 of the Series 1999-1 SUBI Servicing Supplement, to the extent
not reimbursed by VMS, the reasonable costs and expenses of the successor
Servicer incurred in connection with the transfer of the servicing, in an
amount up to $250,000;
(v) to the Series 2002-2 Distribution Account, an amount equal to the
Series 2002-2 Monthly Interest payable on such Payment Date plus the amount
of any unpaid Interest Shortfall Amount, as of the preceding Payment Date,
together with any Additional Interest on such Interest Shortfall Amount
(such amount, the "Monthly Interest Payment");
(vi) if VMS is the Servicer, to the Servicer, an amount equal to the
Series 2002-2 Basic Servicing Fee for the Series 2002-2 Interest Period
ending on such Payment Date;
(vii) to the Administrator, an amount equal to the Series 2002-2
Administrator Fee for the Series 2002-2 Interest Period ending on such
Payment Date;
(viii) other than during a Lockout Period, to the Series 2002-2
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 2002-2 Revolving Period, to the Series 2002-2
Principal Collection Subaccount, an amount equal to the Series 2002-2
Allocated Asset Amount Deficiency, if any, on such Payment Date, (B) on the
earlier of (x) the second Payment Date following the March 2004 Period End
Date or (y) the first Payment Date following the occurrence
21
of an Amortization Event, to the Series 2002-2 Distribution Account, an
amount equal to the lesser of the Series 2002-2 Principal Payment Amount
for such Payment Date and the Series 2002-2 Invested Amount on such Payment
Date and (C) if any Series 2002-2 Preferred Membership Interests are issued
and outstanding, on any Payment Date on and after the Series 2002-2 Note
Termination Date, to the Series 2002-2 Preferred Member Distribution
Account, an amount equal to the Series 2002-2 Principal Payment Amount for
such Payment Date (or, on the Series 2002-2 Note Termination Date, the
portion thereof not deposited into the Series 2002-2 Distribution Account);
provided, however that on or after the Series 2002-2 Note Termination Date
during a Lockout Period, the Series 2002-2 Principal Payment Amount for
such Payment Date (or, on the Series 2002-2 Note Termination Date, the
portion thereof not deposited into the Series 2002-2 Distribution Account)
shall be applied by the Indenture Trustee in accordance with Section 5.4(d)
of the Base Indenture;
(x) to the Series 2002-2 Reserve Account, to the extent that a Series
2002-2 Liquid Credit Enhancement Deficiency exists or, on any Payment Date
immediately succeeding a Monthly Period falling in the Series 2002-2
Amortization Period, to the extent that a Series 2002-2 Allocated Asset
Amount Deficiency exists, an amount equal to the greater of such
deficiencies;
(xi) to the Series 2002-2 Yield Supplement Account, to the extent that
a Series 2002-2 Yield Supplement Deficiency exists (or, will exist after
giving effect to any reduction in the Class X 1999-1B Invested Amount on
such Payment Date), an amount equal to such deficiency;
(xii) if VMS is not the Servicer, to the Servicer, an amount equal to
any Series 2002-2 Supplemental Servicing Fee for the Series 2002-2 Interest
Period ending on such Payment Date; and
(xiii) if any Series 2002-2 Preferred Membership Interests are issued
and outstanding, to the Series 2002-2 Preferred Member Distribution
Account, an amount equal to the balance remaining in the Series 2002-2
Settlement Collection Subaccount.
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 2002-2 Investor Notes,
the Indenture Trustee shall, in accordance with Section 6.1 of the Base
Indenture, distribute to the Series 2002-2 Investor Noteholders, from the Series
2002-2 Distribution Account, the Monthly Interest Payment in the following order
of priority to the extent of the amount deposited in the Series 2002-2
Distribution Account for the payment of interest on the Series 2002-2 Investor
Notes pursuant to Section 5A.4(c)(v):
(a) pro rata to each Class A-1 Investor Noteholder and each Class A-2
Investor Noteholder, an amount equal to the Class A Monthly Interest Payment
payable on such Payment Date; and
22
(b) pro rata to each Class B Investor Noteholder, an amount equal to
the Class B Monthly Interest Payment payable on such Payment Date.
Section 5A.6 Payment of Principal.
(a) The principal amount of each Class of the Series 2002-2 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
2002-2 Distribution Account pursuant to Section 5A.4(c)(ix) or an amount is
deposited in the Series 2002-2 Distribution Account pursuant to Section
5A.4(b)(ii), based solely on the information contained in the Monthly Settlement
Statement with respect to Series 2002-2 Investor Notes, the Indenture Trustee
shall, in accordance with Section 6.1 of the Base Indenture, distribute during
the Series 2002-2 Amortization Period, from the Series 2002-2 Distribution
Account the amount deposited therein pursuant to Section 5A.4(c)(ix) and Section
5A.4(b)(ii) in the following order of priority:
(i) pro rata to each Class A-1 Investor Noteholder until the Class A-1
Invested Amount is reduced to zero;
(ii) pro rata to each Class A-2 Investor Noteholder until the Class
A-2 Invested Amount is reduced to zero; and
(iii) pro rata to each Class B Investor Noteholder until the Class B
Invested Amount is reduced to zero.
provided however that on any Payment Date falling after the occurrence of an
Amortization Event resulting from the occurrence of an Event of Default
described in Section 9.1(a), (b) or (f) of the Base Indenture the Indenture
Trustee shall distribute from the Series 2002-2 Distribution Account the amounts
deposited therein pursuant to Section 5A.4(c)(ix) and Section 5A.4(b)(ii) in the
following order of priority:
(y) pro rata to each Class A-1 Investor Noteholder and each Class A-2
Investor Noteholder until the Class A-1 Invested Amount and Class A-2
Invested Amount are reduced to zero; and
(z) pro rata to each Class B Investor Noteholder until the Class B
Invested Amount is reduced to zero.
(c) The Indenture Trustee shall notify the Person in whose name a
Series 2002-2 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 2002-2 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 2002-2 Investor Note and shall specify the place where
such Series 2002-2 Investor Note may be presented and surrendered for payment of
such installment. Notices in connection with
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redemptions of Series 2002-2 Investor Notes shall be (i) transmitted by
facsimile to Series 2002-2 Investor Noteholders holding Global Notes and (ii)
sent by registered mailed to Series 2002-2 Investor Noteholders holding
Definitive Notes and shall specify that such final installment will be payable
only upon presentation and surrender of such Series 2002-2 Investor Note and
shall specify the place where such Series 2002-2 Investor Note may be presented
and surrendered for payment of such installment.
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 2002-2 Reserve Account.
(a) The Indenture Trustee shall establish and maintain in the name of
the Indenture Trustee for the benefit of the Series 2002-2 Investor Noteholders
an account (the "Series 2002-2 Reserve Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Series 2002-2 Investor Noteholders. The Series 2002-2 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 2002-2 Reserve
Account that is an Eligible Deposit Account. If the Indenture Trustee
establishes a new Series 2002-2 Reserve Account, it shall transfer all cash and
investments from the non-qualifying Series 2002-2 Reserve Account into the new
Series 2002-2 Reserve Account. Initially, the Series 2002-2 Reserve Account will
be established with JPMorgan Chase Bank.
(b) The Issuer may instruct the institution maintaining the Series
2002-2 Reserve Account in writing to invest funds on deposit in the Series
2002-2 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 2002-2 Reserve Account and
any such Permitted
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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 2002-2 Reserve Account. In absence
of written direction as provided hereunder, funds on deposit in the Series
2002-2 Reserve Account shall remain uninvested.
(c) All interest and earnings (net of losses and investment expenses)
paid on funds on deposit in the Series 2002-2 Reserve Account shall be deemed to
be on deposit and available for distribution.
(d) If there is a Series 2002-2 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 2002-2
Reserve Account and deposit in the Series 2002-2 Preferred Member Distribution
Account, and the Indenture Trustee shall withdraw from the Series 2002-2 Reserve
Account and deposit in the Series 2002-2 Preferred Member Distribution Account,
so long as no Series 2002-2 Allocated Asset Amount Deficiency exists or would
result therefrom, an amount up to the lesser of (i) such Series 2002-2 Reserve
Account Surplus on such Business Day and (ii) the Series 2002-2 Reserve Account
Amount on such Business Day.
(e) Amounts will be withdrawn from the Series 2002-2 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 2002-2 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
2002-2 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 2002-2 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 2002-2
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
2002-2 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 2002-2 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 2002-2 Reserve Account and in all proceeds thereof and shall
be the only person authorized to originate entitlement orders in respect of the
Series 2002-2 Reserve Account. The Indenture Trustee and the Series 2002-2
Investor
25
Noteholders shall have no interest in any amounts withdrawn from the Series
2002-2 Reserve Account and deposited in the Series 2002-2 Preferred Member
Distribution Account.
(g) On the first Payment Date after the Series 2002-2 Note Termination
Date on which the sum of (a) the Series 2002-2 Reserve Account Amount, (b) the
Series 2002-2 Yield Supplement Account Amount and (c) the amount available to be
deposited in the Series 2002-2 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 2002-2 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
2002-2 Reserve Account all amounts on deposit therein for deposit in the Series
2002-2 Preferred Member Distribution Account.
Section 5A.9 Series 2002-2 Yield Supplement Account.
(a) The Indenture Trustee shall establish and maintain in the name of
the Indenture Trustee for the benefit of the Series 2002-2 Investor Noteholders
an account (the "Series 2002-2 Yield Supplement Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Series 2002-2 Investor Noteholders. The Series 2002-2 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
2002-2 Yield Supplement Account that is an Eligible Deposit Account. If the
Indenture Trustee establishes a new Series 2002-2 Yield Supplement Account, it
shall transfer all cash and investments from the non-qualifying Series 2002-2
Yield Supplement Account into the new Series 2002-2 Yield Supplement Account.
Initially, the Series 2002-2 Yield Supplement Account will be established with
JPMorgan Chase Bank.
(b) The Issuer may instruct the institution maintaining the Series
2002-2 Yield Supplement Account in writing to invest funds on deposit in the
Series 2002-2 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
2002-2 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 2002-2 Yield Supplement Account. In
absence of written direction as provided hereunder, funds on deposit in the
Series 2002-2 Yield Supplement Account shall remain uninvested.
26
(c) All interest and earnings (net of losses and investment expenses)
paid on funds on deposit in the Series 2002-2 Yield Supplement Account shall be
deemed to be on deposit and available for distribution.
(d) If there is a Series 2002-2 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 2002-2
Yield Supplement Account and deposit in the Series 2002-2 Preferred Member
Distribution Account, and the Indenture Trustee shall withdraw from the Series
2002-2 Yield Supplement Account and deposit in the Series 2002-2 Preferred
Member Distribution Account an amount up to the lesser of (i) such Series 2002-2
Yield Supplement Account Surplus on such Business Day and (ii) the Series 2002-2
Yield Supplement Account Amount on such Business Day.
(e) Amounts will be withdrawn from the Series 2002-2 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 2002-2 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
2002-2 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 2002-2 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 2002-2 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 2002-2 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 2002-2 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 2002-2 Yield
Supplement Account and in all proceeds thereof and shall be the only person
authorized to originate entitlement orders in respect of the Series 2002-2 Yield
Supplement Account. The Indenture Trustee and the Series 2002-2 Investor
Noteholders shall have no interest in any amounts withdrawn from the Series
2002-2 Yield Supplement Account and deposited in the Series 2002-2 Preferred
Member Distribution Account.
(g) On the first Payment Date after the Series 2002-2 Note Termination
Date on which the sum of (a) the Series 2002-2 Reserve Account Amount, (b) the
Series 2002-2 Yield Supplement Account Amount and (c) the amount available to be
deposited in the Series 2002-2 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 2002-2 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
2002-2 Yield Supplement Account all amounts on deposit therein for deposit in
the Series 2002-2 Preferred Member Distribution Account.
27
Section 5A.10 Series 2002-2 Distribution Account.
(a) The Indenture Trustee shall establish and maintain in the name of
the Indenture Trustee for the benefit of the Series 2002-2 Investor Noteholders
an account (the "Series 2002-2 Distribution Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Series 2002-2 Investor Noteholders. The Series 2002-2 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 2002-2
Distribution Account that is an Eligible Deposit Account. If the Indenture
Trustee establishes a new Series 2002-2 Distribution Account, it shall transfer
all cash and investments from the non-qualifying Series 2002-2 Distribution
Account into the new Series 2002-2 Distribution Account. Initially, the Series
2002-2 Distribution Account will be established with JPMorgan Chase Bank.
(b) In order to secure and provide for the repayment and payment of
the Issuer Obligations with respect to the Series 2002-2 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
2002-2 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 2002-2 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 2002-2
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 2002-2 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 2002-2
Distribution Account and in all proceeds thereof and shall be the only person
authorized to originate entitlement orders in respect of the Series 2002-2
Distribution Account.
Section 5A.11 Lease Rate Caps.
(a) The Issuer shall have obtained on the Series 2002-2 Closing Date
and shall thereafter maintain one or more interest rate caps, each from a Series
2002-2 Eligible Counterparty, having, in the aggregate, a notional amount on the
Series 2002-2 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 2002-2
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 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.
28
(b) On or prior to the date that any Fixed Rate Lease is allocated to
the Lease SUBI Portfolio on or after the Series 2002-2 Closing Date, the Issuer
shall have obtained and shall thereafter maintain an interest rate cap from a
Series 2002-2 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 2002-2
Eligible Counterparty in respect of any Fixed Rate Lease 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 2002-2 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 2002-2 Closing Date
and shall thereafter maintain the Series 2002-2 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 A+ by
Standard & Poor's or Aa3 by ▇▇▇▇▇'▇, the Issuer shall obtain an equivalent
interest rate cap from a Series 2002-2 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.
(f) In order to secure and provide for the repayment and payment of
the Issuer Obligations with respect to the Series 2002-2 Investor Notes, the
Issuer hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Indenture Trustee, for the
29
benefit of the Series 2002-2 Investor Noteholders, all of the Issuer's right,
title and interest in and to the Series 2002-2 Lease Rate Cap and all proceeds
thereof.
ARTICLE III
AMORTIZATION EVENTS
If any one of the following events shall occur with respect to the
Series 2002-2 Investor Notes:
(a) the Series 2002-2 Reserve Account shall have become subject to an
injunction, estoppel or other stay or a Lien (other than a Permitted Lien);
(b) the Series 2002-2 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 2002-2 Liquid Credit Enhancement Deficiency shall occur
and continue for at least two Business Days;
(d) a Series 2002-2 Allocated Asset Amount Deficiency shall occur and
continue for at least two Business Days;
(e) a Series 2002-2 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 1.00%;
(g) the Three Month Average Paid-In Advance Loss Ratio with respect to
any Settlement Date exceeds 1.50%;
(h) the Three Month Average Delinquency Ratio with respect to any
Settlement Date exceeds 7.00%;
(i) the failure on the part of the Issuer to declare and pay dividends
on the Series 2002-2 Senior Preferred Membership Interests or the Series 2002-2
Junior Preferred Membership Interests on any Payment Date in accordance with
their terms;
(j) any Servicer Termination Event shall occur;
(k) any Termination Event shall occur;
(l) an Event of Default with respect to the Series 2002-2 Investor
Notes shall occur;
(m) there is at least $10,000,000 on deposit in the Series 2002-2
Principal Collection Subaccount on two consecutive Settlement Dates during the
Series 2002-2 Revolving Period;
30
(n) an Insolvency Event shall occur with respect to SPV, the
Origination Trust, Avis, PHH, Cendant or VMS;
(o) 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, 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, or all principal and interest of the Class B Investor
Notes is not paid in full on or before the Class B Maturity Date;
(p) 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 2002-2
Required Investor Noteholders, written notice specifying such default and
requiring it to be remedied;
(q) 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 2002-2 Required Investor Noteholders,
written notice thereof;
(r) 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;
(s) there shall have been filed against Cendant, PHH, 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;
(t) 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
(u) 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 (p) through (u) above, an
Amortization Event will be deemed to have occurred with respect to the Series
2002-2 Investor Notes only, if after
31
the applicable grace period, either the Indenture Trustee or Series 2002-2
Required Investor Noteholders, declare that an Amortization Event has occurred
with respect to the Series 2002-2 Investor Notes. In the case of any event
described in clauses (a) through (o) above, an Amortization Event with respect
to the Series 2002-2 Investor Notes will be deemed to have occurred without
notice or other action on the part of the Indenture Trustee or the Series 2002-2
Investor Noteholders.
ARTICLE IV
OPTIONAL PREPAYMENT
The Issuer shall have the option to prepay the Series 2002-2 Investor
Notes in full on any Payment Date after the Payment Date in April 2004. 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 Series
2002-2 Investor Notes shall equal the aggregate outstanding principal balance of
the Series 2002-2 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
2002-2 Distribution Account an amount equal to the prepayment price in
immediately available funds. The funds deposited into the Series 2002-2
Distribution Account will be paid by the Indenture Trustee to the Series 2002-2
Investor Noteholders on such Prepayment Date.
ARTICLE V
SERVICING AND ADMINISTRATOR FEES
Section 5.1 Servicing Fees. A periodic servicing fee (the "Series
2002-2 Basic Servicing Fee") shall be payable to the Servicer on each Payment
Date for the Series 2002-2 Interest Period ending on such Payment Date in an
amount equal to the product of (a) 0.215% (the "Series Servicing Fee
Percentage") times (b) the Series 2002-2 Allocated Adjusted Aggregate Unit
Balance as of the first day of such Series 2002-2 Interest Period times (c) the
number of days in such Series 2002-2 Interest Period divided by 365 (or 366, as
applicable) days; provided, however that if VMS is not the Servicer, the
servicing fee payable to the Servicer on each Payment Date hereunder may be
increased such that the sum of the Series 2002-2 Basic Servicing Fee and the
additional servicing fee payable to the Servicer hereunder (the "Series 2002-2
Supplemental Servicing Fee") for each Series 2002-2 Interest Period equals 110%
of the costs to the successor Servicer of servicing the portion of the Lease
SUBI Portfolio allocated to Series 2002-2 during such Series 2002-2 Interest
Period. For this purpose, the portion of the Lease SUBI Portfolio allocated to
Series 2002-2 for each Series 2002-2 Interest Period shall equal the average
Series 2002-2 Invested Percentage during such Series 2002-2 Interest Period. The
Series 2002-2 Basic Servicing Fee and any Series 2002-2 Supplemental Servicing
Fee shall be payable to the Servicer on each Payment Date pursuant to Section
5A.4(c).
32
Section 5.2 Administrator Fee. A periodic fee (the "Series 2002-2
Administrator Fee") shall be payable to the Administrator on each Payment Date
for the Series 2002-2 Interest Period ending on such Payment Date in an amount
equal to the product of (a) 0.01% times (b) the Series 2002-2 Allocated Adjusted
Aggregate Unit Balance as of the first day of the immediately preceding Monthly
Period times (c) the number of days in such Series 2002-2 Interest Period
divided by 365 (or 366, as applicable) days. The Series 2002-2 Administrator Fee
shall be payable to the Administrator on each Payment Date pursuant to Section
5A.4(c)(vii).
ARTICLE VI
FORM OF SERIES 2002-2 NOTES
Section 6.1 Initial Issuance of Series 2002-2 Investor Notes.
The Series 2002-2 Investor Notes are being offered and sold by the
Issuer in a registered public offering pursuant to an Underwriting Agreement,
dated November __, 2002, among the Issuer, VMS, PHH and ▇.▇. ▇▇▇▇▇▇ Securities
Inc. and ▇▇▇▇▇▇▇'▇ Capital Inc., as the representatives of the underwriters.
Section 6.2 Global Notes.
The Series 2002-2 Investor Notes of each Class will be issued in the
form of one or more Global Notes in fully registered form, without coupons,
substantially in the form set forth in Exhibits A-1, A-2 and A-3, registered in
the name of Cede & Co., as nominee of DTC, and deposited with JPMorgan Chase, as
custodian of DTC (collectively, the "Series 2002-2 Global Notes").
The Series 2002-2 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 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
33
BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
Section 6.3 Definitive Notes.
No Series 2002-2 Note Owner will receive a Definitive Note
representing such Series 2002-2 Note Owner's interest in the Series 2002-2
Investor Notes other than in accordance with Section 2.11 of the Base Indenture.
ARTICLE VII
INFORMATION
The Issuer hereby agrees to provide to the Indenture Trustee and each
provider of the Series 2002-2 Required Lease Rate Cap, on each Determination
Date, a Monthly Settlement Statement, substantially in the form of Exhibit B,
setting forth as of the last day of the most recent Monthly Period and for such
Monthly Period the information set forth therein. The Indenture Trustee shall
provide to the Series 2002-2 Investor Noteholders, or their designated agent,
copies of each Monthly Settlement Statement.
ARTICLE VIII
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 2002-2 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 2002-2 Required Investor Noteholders more
fully to effect the purposes of this Indenture Supplement and the sale of the
Series 2002-2 Investor Notes hereunder. The Issuer hereby authorizes the
Indenture Trustee to file any financing statements or similar documents or
notices or
34
continuation statements relating to the Series 2002-2 Collateral 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: Form of Class A-1 Note
Exhibit A-2: Form of Class A-2 Note
Exhibit A-3: Form of Class B Note
Exhibit B: Form of Monthly Settlement Statement
Exhibit C: Form of Series 2002-2 Lease Rate Cap
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.
(c) The Issuer reserves the right, without any consent or other action
of the Series 2002-2 Investor Noteholders, to amend Schedule 1 to the Base
Indenture by (i) deleting "15%" from clause (a)(ii) of the definition of Excess
Longer-Term Lease Amount and substituting in lieu thereof "20%", (ii) deleting
"5%" from clause (b)(ii) of the definition of Excess Longer-Term Lease Amount
and substituting in lieu thereof "7.5%" and (c) deleting "10%" from clause (ii)
of the definition of Excess Residual Value Amount and substituting in lieu
thereof "7.5%".
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 2002-2
Investor Note or an interest therein, each Series 2002-2
35
Investor Noteholder and each Series 2002-2 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.
(a) By acquiring a Series 2002-2 Investor Note or an interest therein,
each Series 2002-2 Investor Noteholder and each Series 2002-2 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 2002-2 Investor Note or an
interest therein, each Series 2002-2 Investor Noteholder and each Series 2002-2
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 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,
36
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.
37
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.
CHESAPEAKE FUNDING LLC
By:
------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Indenture Trustee
By:
------------------------------
Name:
Title:
EXHIBIT A-1
TO SERIES 2002-2
INDENTURE SUPPLEMENT
FORM OF GLOBAL CLASS A-1 INVESTOR NOTE
REGISTERED $255,000,000
No. R-___
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP (CINS) NO. _________
ISIN NO. US__________
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.
CHESAPEAKE FUNDING LLC
SERIES 2002-2 FLOATING RATE CALLABLE ASSET BACKED INVESTOR NOTES,
CLASS A-1
A-1
CHESAPEAKE 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 Two Hundred Fifty Five Million Dollars, 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 Investor Note for each Series 2002-2 Interest Period,
in accordance with the terms of the Indenture, at the Class A-1 Note Rate for
such Interest Period. Each "Series 2002-2 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 2002-2 Interest Period shall commence on and include the Series 2002-2
Closing Date and end on and include December 8, 2002. 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: JPMorgan Chase Bank, ▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: Institutional
Trust 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-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date: _______, 2002
CHESAPEAKE 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.
JPMORGAN CHASE BANK, as Indenture Trustee
By:___________________________
Authorized Signatory
A-3
[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 2002-2 Floating
Rate Asset Backed Investor Notes, Class A-1 (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 JPMorgan Chase Bank (formerly known as 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 2002-2 Indenture Supplement dated as of November __, 2002 (the "Series
2002-2 Indenture Supplement") between the Issuer and the Indenture Trustee. The
Base Indenture and the Series 2002-2 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 2002-2 Collateral pledged as security therefor as provided
in the Indenture and the Series 2002-2 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 January 7, 2003.
The entire unpaid principal amount of this Class A-1 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 2002-2 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.
The Issuer will have the option to prepay the Series 2002-2 Investor
Notes, in whole but not in part, on any Payment Date after the Payment Date in
April 2004. The prepayment price for the Series 2002-2 Investor Notes will be
equal to the amount set forth in the Indenture.
Interest will accrue on this Class A-1 Investor Notes for each Series
2002-2 Interest Period at a rate equal to (i) with respect to the initial Series
2002-2 Interest Period, ____% per annum and (ii) with respect to each Series
2002-2 Interest Period thereafter, a rate per annum equal to One-Month LIBOR for
such Series 2002-2 Interest Period plus ____% per annum (the "Class A-1 Note
Rate"). "One-Month LIBOR" means, for each Series 2002-2 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
2002-2 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
A-4
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 2002-2 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 2002-2 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 2002-2 Interest
Period will mean One-Month LIBOR as in effect with respect to the preceding
Series 2002-2 Interest Period.
All interest payments on the Class A-1 Investor Notes shall be made
pro rata to the Class A-1 Investor Noteholders and the Class A-2 Investor
Noteholders based on the aggregate amounts of interest payable thereon. 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
A-5
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 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 2002-2 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
A-6
of the Holders of the Series 2002-2 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 2002-2 Investor Notes affected by such amendment or modification. The
Indenture also contains provisions permitting the Holders of Series 2002-2
Investor Notes representing specified percentages of the aggregate outstanding
amount of the Series 2002-2 Investor Notes, on behalf of the Holders of all the
Series 2002-2 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-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 2002-2 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 Global Note may be exchanged for Definitive Notes,
subject to the provisions of the Indenture.
A-7
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-8
EXHIBIT A-2
TO SERIES 2002-2
INDENTURE SUPPLEMENT
FORM OF GLOBAL CLASS A-2 INVESTOR NOTE
REGISTERED $245,000,000
No. R-___
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP (CINS) NO. _________
ISIN NO. US__________
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-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.
CHESAPEAKE FUNDING LLC
SERIES 2002-2 FLOATING RATE CALLABLE ASSET BACKED INVESTOR NOTES,
CLASS A-2
A-9
CHESAPEAKE 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 Two Hundred Forty Five Million Dollars, 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 2002-2 Interest Period, in
accordance with the terms of the Indenture at the Class A-2 Note Rate for such
Interest Period. Each "Series 2002-2 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 2002-2 Interest Period shall commence on and include the Series 2002-2
Closing Date and end on and include December 8, 2002. 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: JPMorgan Chase Bank, ▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: Institutional
Trust 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-10
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date: _______, 2002
CHESAPEAKE 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.
JPMORGAN CHASE BANK, as Indenture Trustee
By:________________________________
Authorized Signatory
A-11
[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 2002-2 Floating
Rate Asset Backed Investor Notes, Class A-2 (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 JPMorgan Chase Bank (formerly known as 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 2002-2 Indenture Supplement dated as of November __, 2002 (the "Series
2002-2 Indenture Supplement") between the Issuer and the Indenture Trustee. The
Base Indenture and the Series 2002-2 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 2002-2 Collateral pledged as security therefor as provided
in the Indenture and the Series 2002-2 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 January 7, 2003.
The entire unpaid principal amount of this Series 2002-2 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 2002-2 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 Series 2002-2 Investor
Notes, in whole but not in part, on any Payment Date after the Payment Date in
April 2004. The prepayment price for the Series 2002-2 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
2002-2 Interest Period at a rate equal to (i) with respect to the initial Series
2002-2 Interest Period, ____% per annum and (ii) with respect to each Series
2002-2 Interest Period thereafter, a rate per annum equal to One-Month LIBOR for
such Series 2002-2 Interest Period plus ____% per annum (the "Class A-2 Note
Rate"). "One-Month LIBOR" means, for each Series 2002-2 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
2002-2 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
A-12
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 2002-2 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 2002-2 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 2002-2 Interest
Period will mean One-Month LIBOR as in effect with respect to the preceding
Series 2002-2 Interest Period.
All interest payments on the Class A-2 Investor Notes shall be made
pro rata to the Class A-2 Investor Noteholders and the Class A-1 Investor
Noteholders based on the aggregate amounts of interest payable thereon. 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
A-13
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 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 2002-2 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
A-14
of the Holders of the Series 2002-2 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 2002-2 Investor Notes affected by such amendment or modification. The
Indenture also contains provisions permitting the Holders of Series 2002-2
Investor Notes representing specified percentages of the aggregate outstanding
amount of the Series 2002-2 Investor Notes, on behalf of the Holders of all the
Series 2002-2 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 2002-2 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 Global Note may be exchanged for Definitive Notes,
subject to the provisions of the Indenture.
A-15
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:_______________________2
Signature Guaranteed:
__________________________________
__________________________________
_______________________
2 NOTE: The signature to this assignment must correspond witht he name of the
registered owner as it appears on the face of the within Class A-2 Investor
Note, without alteration, enlargement or any change whatsoever.
A-16
EXHIBIT A-3
TO SERIES 2002-2
INDENTURE SUPPLEMENT
FORM OF GLOBAL CLASS B INVESTOR NOTE
REGISTERED $44,900,000
No. R-___
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP (CINS) NO. _________
ISIN NO. US__________
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 B INVESTOR NOTE IS PAYABLE IN INSTALLMENTS
AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS
B INVESTOR NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
CHESAPEAKE FUNDING LLC
SERIES 2002-2 FLOATING RATE CALLABLE ASSET BACKED INVESTOR NOTES,
CLASS B
A-17
CHESAPEAKE 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 Forty Four Million Nine Hundred Thousand Dollars, 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 B Investor Note shall be due on the Class B Final Maturity Date.
However, principal with respect to the Class B Investor Notes may be paid
earlier under certain limited circumstances described in the Indenture. The
Issuer will pay interest on this Class B Note for each Series 2002-2 Interest
Period, in accordance with the terms of the Indenture at the Class B Note Rate
for such Interest Period. Each "Series 2002-2 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 2002-2 Interest Period shall commence on and include the Series 2002-2
Closing Date and end on and include December 8, 2002. Such principal of and
interest on this Class B 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 B 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 B Investor Note shall be applied
as provided in the Indenture. This Class B 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 B 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 B 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 B 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: JPMorgan Chase Bank, ▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: Institutional Trust
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 B
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: ____________, 2002
CHESAPEAKE FUNDING LLC
By:_________________________
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B Investor Notes issued under the
within-mentioned Indenture.
JPMORGAN CHASE BANK, as Indenture Trustee
By:_____________________________
Authorized Signatory
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[REVERSE OF CLASS B INVESTOR NOTE]
This Class B Investor Note is one of a duly authorized issue of Class
B Investor Notes of the Issuer designated its Series 2002-2 Floating Rate Asset
Backed Investor Notes, Class B (herein called the "Class B 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 JPMorgan Chase Bank (formerly known as 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 2002-2 Indenture Supplement dated as of November __, 2002 (the "Series
2002-2 Indenture Supplement") between the Issuer and the Indenture Trustee. The
Base Indenture and the Series 2002-2 Supplement are referred to herein as the
"Indenture". The Class B Investor Notes are subject to all terms of the
Indenture. All terms used in this Class B 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 B Investor Notes are and will be equally and ratably secured
by the Series 2002-2 Collateral pledged as security therefor as provided in the
Indenture and the Series 2002-2 Indenture Supplement. Payment of interest on,
and principal of, the Class B Investor Notes is subordinated to the payment of
interest on, and principal of, the Class A-1 Investor Notes and the Class A-2
Investor Notes as provided in the Series 2002-2 Indenture Supplement.
Principal of the Class B 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 January 7, 2003.
The entire unpaid principal amount of this Series 2002-2 Investor Note
shall be due and payable on the Class B Final Maturity Date. Notwithstanding the
foregoing, principal on the Class B Investor Notes will be paid earlier during
the Series 2002-2 Amortization Period as described in the Indenture. All
principal payments on the Class B Investor Notes shall be made pro rata to the
Class B Investor Noteholders entitled thereto.
The Issuer will have the option to prepay the Series 2002-2 Investor
Notes, in whole but not in part, on any Payment Date after the Payment Date in
April 2004. The prepayment price for the Series 2002-2 Investor Notes will be
equal to the amount set forth in the Indenture.
Interest will accrue on this Class B Investor Notes for each Series
2002-2 Interest Period at a rate equal to (i) with respect to the initial Series
2002-2 Interest Period, ____% per annum and (ii) with respect to each Series
2002-2 Interest Period thereafter, a rate per annum equal to One-Month LIBOR for
such Series 2002-2 Interest Period plus ____% per annum (the "Class B Note
Rate"). "One-Month LIBOR" means, for each Series 2002-2 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
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will mean, for such 2002-2 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 2002-2 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 2002-2 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 2002-2
Interest Period will mean One-Month LIBOR as in effect with respect to the
preceding Series 2002-2 Interest Period.
All interest payments on the Class B Investor Notes shall be made pro
rata to the Class B Investor Noteholders based on the amounts of interest
payable thereon. The Issuer shall pay interest on overdue installments of
interest at the Class B Note Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Class B Investor Note may be registered on
the Note Register upon surrender of this Class B 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 B 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 B 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 B Investor Note or an interest therein, each
Class B Investor Noteholder and each Class B 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 B Investor Noteholder, by acceptance of a Class B Investor
Note or, in the case of a Class B Investor Note Owner, a beneficial interest in
a Class B 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
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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 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 B Investor Noteholder or Class B Investor Note Owner, by
acceptance of a Class B Investor Note or, in the case of a Class B Investor Note
Owner, a beneficial interest in a Class B Investor Note, covenants and agrees
that by accepting the benefits of the Indenture that such Class B Investor
Noteholder or Class B 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 B Investor Noteholder and
each Class B Investor Note Owner that, for Federal, state and local income and
franchise tax purposes only, the Class B Investor Notes will evidence
indebtedness of the Issuer secured by the Series 2002-2 Collateral. Each Class B
Investor Noteholder and each Class B Investor Note Owner, by the acceptance of
this Class B Investor Note, agrees to treat this Class B 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
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of the Holders of the Series 2002-2 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 2002-2 Investor Notes affected by such amendment or modification. The
Indenture also contains provisions permitting the Holders of Series 2002-2
Investor Notes representing specified percentages of the aggregate outstanding
amount of the Series 2002-2 Investor Notes, on behalf of the Holders of all the
Series 2002-2 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 B
Investor Note (or any one or more predecessor Class B Investor Notes) shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class B Investor Note and of any Class B 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 B 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 2002-2 Investor Notes issued thereunder.
The term "Issuer" as used in this Class B Investor Note includes any
successor to the Issuer under the Indenture.
The Class B Investor Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations set
forth therein.
This Class B 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 B
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 B Investor Note at the times, place and rate, and in the
coin or currency herein prescribed.
Interests in this 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 B Investor Note and all rights thereunder, and hereby
irrevocably constitutes and appoints ____________________, attorney, to transfer
said Class B Investor Note on the books kept for registration thereof, with full
power of substitution in the premises.
Dated:__________________ By:_______________________3
Signature Guaranteed:
____________________________________
____________________________________
_____________________________
3/ 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 B
Investor Note, without alteration, enlargement or any change
whatsoever.
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