Exhibit 10.21
--------------------------------------------------------------------------------
SECURITY AGREEMENT
dated as of June 18, 2003
between
▇.▇. ▇▇▇▇▇▇▇▇ TRUST
and
JPMORGAN CHASE BANK,
as Indenture Trustee
--------------------------------------------------------------------------------
Exhibit 10.21
Table of Contents
ARTICLE I DEFINITIONS; CONSTRUCTION...............................................................................1
SECTION 1.1 Definitions..................................................................................1
SECTION 1.2 Rules of Construction........................................................................1
SECTION 1.3 Accounting and UCC Terms.....................................................................2
SECTION 1.4 Computation of Time Periods..................................................................2
SECTION 1.5 Cross-References.............................................................................2
SECTION 1.6 Reference to Secured Parties.................................................................2
SECTION 1.7 Other Agreements.............................................................................2
SECTION 1.8 Legal Representation of the Parties..........................................................2
ARTICLE II SECURITY INTEREST......................................................................................2
SECTION 2.1 Grant of Security Interest; No Obligation....................................................2
ARTICLE III RIGHTS OF SECURED PARTIES.............................................................................3
SECTION 3.1 Rights of Secured Parties....................................................................3
ARTICLE IV REMEDIES...............................................................................................3
SECTION 4.1 Remedies.....................................................................................3
SECTION 4.2 Right to Initiate Judicial Proceedings, etc..................................................4
SECTION 4.3 Appointment of a Receiver....................................................................4
SECTION 4.4 Directions Originated by the Required Secured Parties........................................4
SECTION 4.5 Remedies Not Exclusive.......................................................................5
SECTION 4.6 Waiver of Certain Rights.....................................................................6
SECTION 4.7 Notice of Indenture Trustee Actions..........................................................6
SECTION 4.8 Limitation by Law............................................................................6
ARTICLE V TERMINATION OF SECURITY INTEREST........................................................................6
SECTION 5.1 Termination of Security Interest; Release of Collateral......................................6
SECTION 5.2 Termination Statements.......................................................................6
ARTICLE VI REPRESENTATIONS AND WARRANTIES.........................................................................6
SECTION 6.1
ARTICLE VII COVENANTS.............................................................................................8
SECTION 7.1 Title Covenants..............................................................................8
SECTION 7.2 Further Assurances...........................................................................8
SECTION 7.3 Notices......................................................................................9
SECTION 7.4 Costs of Transfer; Taxes; and Expenses.......................................................9
SECTION 7.5 The Indenture Trustee May Perform............................................................9
ARTICLE VIII INDENTURE TRUSTEE'S ROLE............................................................................10
SECTION 8.1 Appointment and Duties of the Indenture Trustee.............................................10
SECTION 8.2 Compensation and Expenses...................................................................10
i
Table of Contents
(continued)
Page
SECTION 8.3 Filing Fees, Excise Taxes, etc..............................................................10
SECTION 8.4 Indemnification.............................................................................10
SECTION 8.5 Acceptance of Appointment...................................................................11
SECTION 8.6 Exculpatory Provisions......................................................................11
SECTION 8.7 Reliance by Indenture Trustee...............................................................12
SECTION 8.8 Limitations on Duties of the Indenture Trustee..............................................12
SECTION 8.9 Resignation and Removal of the Indenture Trustee............................................13
SECTION 8.10 Reasonable Care............................................................................13
SECTION 8.11 Delegation of Duties.......................................................................13
ARTICLE IX MISCELLANEOUS.........................................................................................14
SECTION 9.1 Amendments, Supplements and Waivers.........................................................14
SECTION 9.2 Recourse....................................................................................14
SECTION 9.3 Notices.....................................................................................14
SECTION 9.4 Headings....................................................................................15
SECTION 9.5 Severability................................................................................15
SECTION 9.6 Binding Effect..............................................................................15
SECTION 9.7 GOVERNING LAW...............................................................................15
SECTION 9.8 Counterparts................................................................................15
SECTION 9.9 Other Transactions..........................................................................15
SECTION 9.10 Limitation on Actions, Inconsistency.......................................................15
SECTION 9.11 Non-petition...............................................................................16
SECTION 9.12 FORUM SELECTION AND CONSENT TO JURISDICTION................................................16
SECTION 9.13 WAIVER OF JURY TRIAL.......................................................................16
SECTION 9.14 Limitation of Liability....................................................................16
ii
SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated as of June 18, 2003 (as amended,
supplemented or otherwise modified from time to time, this "Agreement"), is
entered into by and between ▇.▇. ▇▇▇▇▇▇▇▇ TRUST ("DLPT"), and JPMORGAN CHASE
BANK (formerly known as The Chase Manhattan Bank) (the "Indenture Trustee"), as
Indenture Trustee.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, DLPT has executed a Guaranty (the "Guaranty"), dated as
of June 18, 2003 in favor of the Indenture Trustee, pursuant to which DLPT has
guaranteed the payment of certain amounts payable under the Base Indenture (the
"Base Indenture"), dated as of June 30, 1999, as amended, between Chesapeake
Funding LLC (formerly known as Greyhound Funding LLC) ("Chesapeake Funding"), as
Issuer and the Indenture Trustee, as supplemented by each supplement (each an
"Indenture Supplement") to the Base Indenture executed in connection with the
issuance of a series of Investor Notes (the Base Indenture, as supplemented by
each Indenture Supplement, the "Indenture"), for the benefit of each Investor
Noteholder and each other person to whom amounts are payable from amounts on
deposit in the Collection Account or any subaccount thereof (all such Investor
Noteholders and other such persons, collectively, the "Secured Parties"); and
WHEREAS, it is the intent of the parties that the obligations of
DLPT to the Secured Parties under the Guaranty be secured by a first priority
lien and security interest in the Collateral and this Agreement create such lien
and security interest in such assets to secure the obligations of DLPT under the
Guaranty;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1 Definitions. As used in this Agreement, and unless
the context requires a different meaning, capitalized terms used but not defined
herein shall have the respective meanings set forth in Annex I hereto. In the
event of any inconsistency between the definition of any term as set forth
herein and the definition of such term as set forth in Annex I, the definition
of such term as set forth in Annex I shall control. Terms not otherwise defined
in this Agreement (including Annex I) are used herein as defined in the Base
Indenture.
SECTION 1.2 Rules of Construction. Unless the context otherwise
requires, (a) a term has the meaning assigned to it herein or in Annex I hereto,
subject to the provisions of Section 1.1 (Definitions); (b) words in the
singular include the plural, and words in the plural
include the singular; (c) "paid in full" and any phrase of similar import means
"paid in full in cash"; and (d) "including" means, where not already so
indicated, "including without limitation."
SECTION 1.3 Accounting and UCC Terms. As used herein, unless
otherwise specifically defined in this Agreement, and unless the context
requires a different meaning: (a) all accounting terms shall be construed in
accordance with GAAP; and (b) all terms defined in Articles 8 and 9 of the UCC
are used herein as so defined.
SECTION 1.4 Computation of Time Periods. Unless otherwise stated
in this Agreement, in the computation of a period of time from a specified date
to a later specified date, the word "from" means "from and including" and the
words "to" and "until" each mean "to but excluding."
SECTION 1.5 Cross-References. "Herein," "hereof" and other words
of similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision. Unless otherwise specified, references in
this Agreement to any Article, Section, Schedule, Annex or Exhibit are
references to such Article or Section of, or Schedule, Annex or Exhibit to, this
Agreement, and references in any Article, Section, Schedule, Annex, Exhibit or
definition to any subsection or clause are references to such subsection or
clause of such Article, Section, Schedule, Annex, Exhibit or definition.
SECTION 1.6 Reference to Secured Parties. In each case herein
where any payment or distribution is to be made or notice is to be given to
"Secured Parties," such payments, distributions and notices shall be made to the
Indenture Trustee.
SECTION 1.7 Other Agreements. All references in this Agreement to
an agreement, instrument or other document shall be construed as a reference to
that agreement, instrument or document as the same may be amended, modified,
varied, supplemented or novated from time to time.
SECTION 1.8 Legal Representation of the Parties. This Agreement
was negotiated by the parties with the benefit of legal representation and any
rule of construction or interpretation otherwise requiring this Agreement or any
other Transaction Document to be construed or interpreted against any party
shall not apply to any construction or interpretation hereof or thereof.
ARTICLE II
SECURITY INTEREST
SECTION 2.1 Grant of Security Interest; No Obligation. (a) To
secure the due and punctual payment of all Secured Obligations, howsoever
created, arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing or due or to become due, in accordance
with the terms thereof, and to secure the due and punctual performance of all of
the Secured Obligations, DLPT hereby Grants to the Indenture Trustee (and each
successor Indenture Trustee) for its benefit and the benefit of the Secured
Parties a security interest in all of DLPT's right, title and interest in and to
the Collateral.
-2-
(b) The Security Interest is Granted as security only and shall
not subject the Secured Parties to, or transfer or in any way affect or modify,
any obligation or liability of DLPT with respect to any of the Collateral or any
transaction in connection therewith.
ARTICLE III
RIGHTS OF SECURED PARTIES
SECTION 3.1 Rights of Secured Parties. In the event of any
Guarantor Default, the Indenture Trustee may, and upon the direction of the
Required Secured Parties shall, foreclose on the Security Interest Granted to
the Indenture Trustee or sell the Collateral pursuant to the terms of this
Agreement in any commercially reasonable manner that the Indenture Trustee, in
its sole discretion, may elect even though a higher price might have been
obtained had the Security Interest been foreclosed upon or the Collateral sold
in another manner.
ARTICLE IV
REMEDIES
SECTION 4.1 Remedies. (a) In the event of any Guarantor Default,
the Indenture Trustee (on behalf of the Secured Parties) shall be entitled to
exercise the rights and remedies as provided in this Agreement. Instructions
from the Indenture Trustee with respect to the disposition of Collateral
(including as to method, manner, time, place and terms thereof) shall be given
in accordance with Section 9-610(a) of the New York Uniform Commercial Code.
(b) DLPT hereby irrevocably constitutes and appoints the
Indenture Trustee and any officer or Indenture Trustee thereof, with full power
of substitution, as its true and lawful attorney-in-fact, which appointment
shall be coupled with an interest, with full power and authority in the name of
DLPT, or in its own name, from time to time in the Indenture Trustee's
discretion, for the purpose of carrying out the terms of this Agreement and the
other Related Documents as provided in this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes hereof and thereof and,
without limiting the generality of the foregoing, hereby gives the Indenture
Trustee, from and after the date of any Guarantor Default, the power and right
on behalf and in the name of DLPT, without notice to or assent by DLPT, to the
extent permitted by Applicable Law, to do the following, in each case on behalf
of the Secured Parties:
(i) to ask for, demand, ▇▇▇ for, collect, receive and
give acquittance for any and all moneys due or to become due with
respect to the Collateral;
(ii) to receive, take, endorse, assign and deliver any and all
checks, notes, drafts, acceptances, documents and other negotiable and
non-negotiable instruments, documents and chattel paper taken or
received by the Indenture Trustee in connection herewith and
therewith;
-3-
(iii) to commence, file, prosecute, defend, settle, compromise or
adjust any claim, suit, action or proceeding with respect to the
Collateral;
(iv) to sell, transfer, assign or otherwise deal in or with the
Collateral or any part thereof pursuant to the terms and conditions
hereunder and thereunder and vote proxies with respect to the
Collateral;
(v) to transfer all or any part of the Collateral into the
name of the Indenture Trustee or its nominee, with or without
disclosing that such Collateral is subject to the Security Interest
under this Agreement;
(vi) to notify the parties obligated on any of the Collateral to
make payment to the Indenture Trustee of any amount due or to become
due thereunder; and
(vii) to do, at its option and at the expense and for the account
of DLPT, at any time or from time to time, all acts and things which
the Indenture Trustee reasonably deems necessary to protect or
preserve the Collateral and to realize upon the Collateral.
Any sale of the Collateral or any part thereof may, with prior
notice to DLPT, be made in one or more lots at public or private sale, for cash,
on credit or for future delivery, and upon such other terms as the Indenture
Trustee may deem commercially reasonable. Any Secured Party and/or any of their
Affiliates may be a purchaser at any such sale if such purchase is for cash and
is made without netting any amounts owed by DLPT to the purchaser. The Indenture
Trustee shall not be obligated to make any sale of Collateral regardless of
notice of sale having been given. The Indenture Trustee may adjourn any public
or private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned. DLPT shall cooperate with the Indenture
Trustee in all reasonable ways in order to assist the Indenture Trustee in the
sale and other disposition of the Collateral.
SECTION 4.2 Right to Initiate Judicial Proceedings, etc. The
Indenture Trustee shall have the right and power to institute and maintain such
suits and proceedings as it may deem appropriate to protect and enforce the
rights vested in it and the other Secured Parties by this Agreement and the
other Related Documents. Following the occurrence and continuance of a Guarantor
Default, the Indenture Trustee may, either after entry or without entry, proceed
by suit or suits at law or in equity to enforce such rights and to foreclose
upon the Collateral and to sell all, or from time to time any, of the Collateral
under the judgment or decree of a court of competent jurisdiction.
SECTION 4.3 Appointment of a Receiver. If a receiver of the
Collateral shall be appointed in judicial proceedings, the Indenture Trustee may
be appointed as such receiver. Notwithstanding the appointment of a receiver,
but subject to an order of the court in the judicial proceedings referred to
above, the Indenture Trustee shall be entitled to retain possession and control
of all cash or property held by or deposited with it pursuant to any provision
of this Agreement.
SECTION 4.4 Directions Originated by the Required Secured
Parties. (a) The Secured Parties shall have the right, by an instrument in
writing executed and delivered to the
-4-
Indenture Trustee by the Required Secured Parties, to direct the Indenture
Trustee as to (i) the exercise of any right or remedy available to the Indenture
Trustee in respect of the Security Interest for the benefit of the Secured
Parties, (ii) the time, method and place of conducting any proceeding for any
such right or remedy or of exercising any power conferred on the Indenture
Trustee, (iii) the appointment of a receiver, or (iv) the taking of any other
action authorized by this Article IV. The Indenture Trustee hereby agrees to
comply with such directions.
(b) The Indenture Trustee shall not be obligated to follow any
written directions received pursuant to this Section 4.4 to the extent such
written directions are in conflict with any provisions of law or this Agreement;
provided, however, that under no circumstances shall the Indenture Trustee be
liable hereunder for acting or refraining from acting in accordance with the
instructions of the Required Secured Parties.
(c) Nothing in this Section 4.4 shall impair the right of the
Indenture Trustee in its discretion to take or omit to take any action deemed
proper by the Indenture Trustee in connection with a direction pursuant to this
Section 4.4 and which action or omission is not inconsistent with the direction
of the Required Secured Parties pursuant to this Section 4.4; provided, however,
that the Indenture Trustee shall not be under any obligation, as a result of
this Section 4.4, to take any action which is discretionary with the Indenture
Trustee under the provisions hereof.
SECTION 4.5 Remedies Not Exclusive. (a) No remedy conferred upon
or reserved to the Indenture Trustee or the Secured Parties herein is intended
to be exclusive of any other remedy or remedies, but every such remedy shall be
cumulative and shall be in addition to every other remedy conferred herein or
now or hereafter existing at law or in equity or by statute.
(b) No delay by or omission of the Indenture Trustee or any
Secured Party to exercise any right, remedy or power accruing upon the
occurrence and continuance of any Guarantor Default shall impair any such right,
remedy or power or shall be construed to be a waiver of any such Guarantor
Default or an acquiescence therein; and every right, power and remedy given by
this Agreement to the Indenture Trustee may be exercised from time to time and
as often as may be deemed expedient by the Indenture Trustee, subject to the
provisions of this Agreement and the other Related Documents.
(c) In case the Indenture Trustee shall have proceeded to
enforce any right, remedy or power under this Agreement or any other Related
Document and the proceeding for the enforcement thereof shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to the Indenture Trustee or any other Secured Party, then and in every such case
DLPT, the Indenture Trustee and the other Secured Parties shall, subject to any
effect of or determination in such proceeding, severally and respectively be
restored to their former positions and rights hereunder with respect to the
Collateral and in all other respects, and thereafter all rights, remedies and
powers of the Indenture Trustee and the other Secured Parties shall continue as
though no such proceeding had been taken.
(d) All rights of action and rights to assert claims upon or
under this Agreement may be enforced by the Indenture Trustee without the
possession of this Agreement or any Related Document or any other document or
Instrument evidencing any of the Secured
-5-
Obligations or the production thereof in any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Indenture Trustee
shall be brought in its name as Indenture Trustee and any recovery of judgment
shall be held as part of the Collateral.
SECTION 4.6 Waiver of Certain Rights. DLPT, to the extent it may
lawfully do so, on behalf of itself and all who may claim through or under it,
including any and all subsequent creditors, vendees, assignees and lienors,
except as provided in Section 4.7, expressly waives and releases any, every and
all rights to presentment, demand, protest or any notice (to the extent
permitted by Applicable Law and except as specifically provided in this
Agreement) of any kind in connection with this Agreement or any Collateral or to
have any marshalling of the Collateral upon any sale, whether made under any
power of sale granted hereunder or any other Related Document, or pursuant to
judicial proceedings or upon any foreclosure or any enforcement of this
Agreement or any other Related Document and consents and agrees that all the
Collateral may at any such sale be offered and sold as an entirety or in lots or
otherwise as the Indenture Trustee may determine or be directed hereunder.
SECTION 4.7 Notice of Indenture Trustee Actions. The Indenture
Trustee agrees to give DLPT a minimum of 10 Business Days' prior notice of any
sale of Collateral if notice thereof is required by law and DLPT agrees that, to
the extent the notice of the sale or other disposition of any of the Collateral
is required by law, 10 Business Days' prior notice to DLPT shall constitute
reasonable notification of such sale or other disposition.
SECTION 4.8 Limitation by Law. All the provisions of this Article
IV are intended to be subject to all applicable mandatory provisions of law
which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Agreement invalid, unenforceable in
whole or in part or not entitled to be recorded, registered, or filed under the
provisions of any Applicable Law.
ARTICLE V
TERMINATION OF SECURITY INTEREST
SECTION 5.1 Termination of Security Interest; Release of
Collateral. Upon the payment in full of all Secured Obligations and termination
of the Indenture in accordance with its terms, this Agreement and the Security
Interest shall terminate and, subject to the terms hereof and of the Related
Documents, all rights to the Collateral Granted hereunder shall revert to DLPT.
In such case, the Indenture Trustee shall at DLPT's expense, execute and deliver
to DLPT such documents as are necessary to evidence such termination of the
Security Interest or such release of Collateral.
SECTION 5.2 Termination Statements. DLPT shall, upon the payment
in full of all Secured Obligations to the Secured Parties prepare and file, at
DLPT's expense where appropriate, UCC-3 termination statements releasing the
Security Interest.
-6-
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1 (a) DLPT represents and warrants that:
(i) Perfection of Security Interest. Upon, (i) filing of the
UCC-1 Financing Statement naming DLPT as debtor and the Indenture
Trustee as secured party in each of the jurisdictions listed on Annex
II, (ii) the naming of Raven Funding LLC ("Raven") as lienholder on
each certificate of title for each Leased Vehicle and each Paid in
Advance Vehicle and (iii) the execution of the Nominee Agreement, the
Indenture Trustee shall have a valid and continuing security interest
(as defined in the UCC) in and perfected pledge of the Collateral and
all Proceeds thereof (subject to Section 9-306 of the UCC), which
security interest shall be prior to all other interests in such
Collateral and shall be enforceable as such as against creditors of
and purchasers from DLPT.
(ii) Jurisdiction of Organization. On the date hereof, the
jurisdiction of organization and the location of the chief executive
office or sole place of business of DLPT are as specified on Annex II.
(iii) Status. DLPT is a statutory trust duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has all requisite power and authority to enter into and perform
its obligations under this Agreement and the execution, delivery and
performance by it of this Agreement have been duly authorized by all
necessary action on its part.
(b) Execution and Delivery. Each party hereto hereby represents
and warrants that this Agreement has been duly executed and delivered by such
party and constitutes the legal, valid and binding obligation of such party
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability.
(c) Additional Representations and Warranties. DLPT hereby
agrees, in addition to its obligations hereunder, that:
(i) it has taken all steps necessary to perfect its security
interest, if any against the Obligor, in the property securing the
Leases;
(ii) the Leases constitute Chattel Paper within the meaning of
the UCC;
(iii) the Fleet Receivables constitute Accounts within the
meaning of the UCC;
(iv) it has in its possession all original copies of the Leases
that constitute or evidence part of the Collateral. The Leases that
constitute or evidence part of the Collateral do not have any marks or
notations indicating that they have been pledged, assigned or
otherwise conveyed to any Person other than the Indenture Trustee. All
financing statements filed or to be filed against DLPT in favor of the
Indenture Trustee in connection herewith describing the Collateral
contain a statement to the following effect: "A purchase of or
security interest in any collateral described in this financing
statement will violate the rights of the Indenture Trustee";
-7-
(v) it owns and has good and marketable title to the Collateral
free and clear of any Lien, claim or encumbrance of any Person;
(vi) it has received all consents and approvals required by the
terms of the Collateral to the transfer to the Indenture Trustee of
its interest and rights in the Collateral hereunder;
(vii) it (x) with respect to any part of the Collateral in which
perfection of such Collateral is governed by the UCC, has caused or
will have caused, within ten days, the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security
interest granted therein to the Indenture Trustee hereunder and (y)
with respect to any part of the Collateral in which perfection of such
Collateral is governed by a certificate of title statute, has caused
Raven to be listed as lienholder on behalf of the Indenture Trustee on
each certificate of title for such Collateral in order to perfect the
security interest granted therein to the Indenture Trustee hereunder;
(viii) other than the security interest granted to the Indenture
Trustee pursuant to this Agreement, DLPT has not pledged or granted a
security interest in any of the Collateral. DLPT has not authorized
the filing of and is not aware of any financing statements against
DLPT that include a description of collateral covering the Collateral
other than any financing statement relating to the security interest
granted to the Indenture Trustee hereunder or that has been
terminated. Debtor is not aware of any judgment or tax lien filings
against DLPT; and
(ix) it will perform all actions necessary to maintain the
perfection and priority of the Indenture Trustee's security interest
in the Collateral.
(b) The representations and warranties of DLPT under this Section 6.1 shall
survive until the termination of this Agreement and shall not be subject to
amendment or waiver by the parties hereto.
ARTICLE VII
COVENANTS
SECTION 7.1 Title Covenants. DLPT covenants that at no time shall
it (a) create, permit or suffer to be created any Lien or other security
interest in the Collateral other than the Security Interest and the rights
created therein under the Transaction Documents; or (b) sell, transfer, assign,
deliver or otherwise dispose of any of the Collateral or any interest therein
other than pursuant to, and as permitted by, the Transaction Documents. DLPT
further covenants and agrees, subject to the terms of this Agreement, to defend
the Collateral against the claims and demands of all other parties.
-8-
SECTION 7.2 Further Assurances.
(a) Filings, etc. a) DLPT shall at its sole expense file, record,
make, execute and deliver all such notices, instruments, statements and other
documents, and perform such acts as the Indenture Trustee may reasonably request
in writing from time to time, or otherwise as necessary to perfect, preserve or
otherwise protect the Security Interest in the Collateral or any part thereof,
or to give effect to the rights, powers and remedies of the Indenture Trustee
hereunder and under the other Related Documents, including execution and
delivery of financing statements. DLPT shall be obligated to perform its
obligations under this Agreement notwithstanding the ability of any other Person
to take such actions pursuant to the provisions of Section 7.5.
(ii) DLPT agrees that a carbon, photographic, photostatic or
other reproduction of this Agreement or of a financing statement is sufficient
as a financing statement. DLPT authorizes the Indenture Trustee to file any
financing statements naming DLPT as debtor necessary to perfect the Security
Interest in the Collateral without the signature of DLPT.
(b) Location of DLPT. DLPT shall not change the location of its
jurisdiction of organization, unless it shall have given the Indenture Trustee
at least 30 days' (or such shorter period as is acceptable to the Indenture
Trustee) prior written notice thereof. DLPT shall not change its name, identity
or corporate structure (within the meaning of UCC Section 9-402(7)) in any
manner, unless it shall have given the Indenture Trustee at least 30 days' (or
such shorter period as is acceptable to the Indenture Trustee) prior written
notice thereof.
SECTION 7.3 Notices. DLPT shall advise the Indenture Trustee and
each Representative promptly after becoming aware thereof, in reasonable detail,
of any Lien (other than the Security Interest and any other Liens created under
any Transaction Document) on, or claim asserted against, any of the Collateral.
SECTION 7.4 Costs of Transfer; Taxes; and Expenses. DLPT shall
pay all transfer taxes and other costs incurred in connection with all transfers
of Collateral made in respect of this Agreement. DLPT shall pay the Indenture
Trustee the reasonable costs and expenses, including reasonable attorneys' fees
and other charges, incurred by the Indenture Trustee or its designee in
connection with making collections on any Collateral.
SECTION 7.5 The Indenture Trustee May Perform. (a) If DLPT fails
to perform any agreement contained herein required to be performed by it, the
Indenture Trustee may, upon the written instruction of the Required Secured
Parties, itself file, record, make, execute and deliver all such notices,
instruments, statements and other documents, and take such acts, as the Secured
Parties may reasonably determine to be necessary or desirable from time to time
to perfect, preserve or otherwise protect the Security Interest of the Secured
Parties and otherwise perform, or cause performance of, any other such actions
as the Required Secured Parties shall reasonably determine is necessary or
desirable, and the reasonable out-of-pocket expenses of the Indenture Trustee
incurred in connection therewith shall be payable by DLPT and shall be part of
the Secured Obligations. The powers conferred on the Indenture Trustee hereunder
are solely to protect its interest (on behalf of the Secured Parties) in the
Collateral and shall not impose any duty on it to exercise any such powers.
Except for reasonable care of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Indenture Trustee
shall have no duty as to any Collateral or responsibility for (a) ascertaining
or
-9-
taking action with respect to any Collateral or (b) taking any necessary
steps to preserve rights against prior parties or any other rights pertaining to
any Collateral.
(b) The Indenture Trustee shall not be responsible for the
filing of any financing statements or continuation statements, or otherwise be
responsible for maintaining a perfected security interest in the Collateral.
ARTICLE VIII
INDENTURE TRUSTEE'S ROLE
SECTION 8.1 Appointment and Duties of the Indenture Trustee. Each
Secured Party hereby designates and appoints the Indenture Trustee to act as the
Indenture Trustee and representative for such Secured Party, and each such
Secured Party hereby authorizes the Indenture Trustee to take such actions on
its behalf and on behalf of such Secured Party hereunder. Notwithstanding any
provision to the contrary elsewhere in the Related Documents, the Indenture
Trustee shall not have any fiduciary relationship with any Secured Party in its
capacity as such, and no implied covenants, functions, obligations or
responsibilities shall be read into this Agreement, the other Related Documents
or otherwise exist against the Indenture Trustee.
SECTION 8.2 Compensation and Expenses. DLPT shall pay or cause to
be paid to the Indenture Trustee (including any successor Indenture Trustee
appointed hereunder), from time to time within 10 days after demand, all
reasonable out-of-pocket costs and expenses of the Indenture Trustee (including
reasonable out-of-pocket fees and expenses of legal counsel) arising in
connection with the modification and/or termination of and performance of its
obligations under this Agreement and each other Related Document.
SECTION 8.3 Filing Fees, Excise Taxes, etc. DLPT shall (a) pay or
reimburse the Indenture Trustee for any and all amounts in respect of all
search, filing, recording and registration fees, taxes, excise taxes and other
similar imposts which may be payable or determined to be payable by the
Indenture Trustee in respect of the execution, delivery, performance and/or
enforcement of this Agreement and/or any other Related Document and (b) save the
Indenture Trustee harmless from and against any and all liabilities with respect
to or resulting from any delay in paying or omission to pay such taxes and fees.
The obligations of DLPT under this Section 8.3 shall survive the termination of
the other provisions of this Agreement.
SECTION 8.4 Indemnification.
(a) Indemnity in favor of Indenture Trustee. To the fullest
extent permitted by Applicable Law, DLPT shall protect, indemnify and save
harmless the Indenture Trustee or attorney-in-fact appointed by the Indenture
Trustee and each of their respective officers, directors, shareholders,
controlling persons, employees, Indenture Trustees and servants (each an
"Indemnified Party") from and against, any and all liabilities, obligations,
losses, claims, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever with respect to or in
connection with the execution, delivery, enforcement,
-10-
performance and/or administration of this Agreement and/or any other Related
Document or any of the powers granted to the Indenture Trustee hereunder unless
arising from the gross negligence, bad faith or willful misconduct (as
determined by a final adjudication by a court of competent jurisdiction) of any
Indemnified Party. If for any reason the indemnification provided above in this
Section 8.4 is declared unenforceable by a court of law, DLPT shall contribute
to the amount paid or payable by such Indemnified Party as a result of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements in such proportion as is appropriate to reflect
not only the relative benefits received by such Indemnified Party, on the one
hand and DLPT on the other hand but also the relative fault of such Indemnified
Party, as well as any other relevant equitable considerations.
(b) Suits, etc. In any suit, proceeding or action brought by the
Indenture Trustee under or with respect to the Related Documents for any sum
owing thereunder or to enforce any provisions thereof, DLPT shall save,
indemnify and keep the Indenture Trustee harmless from and against all loss,
damage and reasonable, out-of-pocket expense suffered by reason of any defense,
set-off, counterclaim, recoupment or reduction of liability whatsoever of the
obligor thereunder (unless such expense, loss or damage is caused by the gross
negligence, bad faith or willful misconduct of the Indenture Trustee) arising
out of a breach by DLPT of any obligation thereunder or arising out of any other
agreement, indebtedness or liability at any time owing to or in favor of such
obligor or its successors from DLPT and all such obligations of DLPT shall be
and remain enforceable against and only against DLPT and shall not be
enforceable against the Indenture Trustee or any other Secured Party.
(c) Limitation on Expenses. The indemnification obligations of
DLPT pursuant to this Section 8.4 shall be, in the case of any expenses and
reimbursement obligations incurred by the Indenture Trustee, limited to the
reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and
expenses of legal counsel) so incurred.
(d) The obligations of DLPT under this Section 8.4 shall survive
the termination of the other provisions of this Agreement.
SECTION 8.5 Acceptance of Appointment. The Indenture Trustee
hereby accepts the appointment as Indenture Trustee and representative on behalf
of the Secured Parties under this Agreement and the other Related Documents upon
the terms and conditions hereof and the other Related Documents.
SECTION 8.6 Exculpatory Provisions. (a) The Indenture Trustee
shall not be responsible in any manner whatsoever for the correctness of any
recitals, statements, representations or warranties contained herein or in the
other Related Documents, unless specifically made by the Indenture Trustee. The
Indenture Trustee makes no representations as to the value or condition of the
Collateral or any part thereof, or as to the title of DLPT thereto or as to the
security interest afforded by this Agreement, the perfection or priority of any
security interest created hereby or, as to the validity, execution (except its
own execution), enforceability, legality or sufficiency of this Agreement or any
other Transaction Document, and, except as otherwise provided herein, the
Indenture Trustee shall incur no liability or responsibility in respect of any
such matters. The Indenture Trustee shall not be responsible for insuring the
Collateral or for the payment of taxes, charges, assessments or liens upon the
Collateral or for perfecting or maintain-
-11-
ing the perfection of the Security Interest in the Collateral or for recording
any documents in connection with patents or trademarks or otherwise as to the
maintenance of the Collateral, except in the event that the Indenture Trustee
enters into possession of a part or all of the Collateral, the Indenture Trustee
shall preserve the part in its possession; provided, however, that the Indenture
Trustee shall not be required to expend any of its own funds to preserve the
Collateral if it shall reasonably determine that reimbursement therefor is not
reasonably assured to it hereunder.
(b) The Indenture Trustee shall not be required to ascertain or
inquire as to the performance by DLPT of any of the covenants or agreements
contained herein or in any other Related Document.
(c) The Indenture Trustee shall perform hereunder with the same
standard of care set forth in Section 10.1 of the Indenture and shall be
entitled to the same rights and protections as the Indenture Trustee as in
Article 10 of the Indenture.
SECTION 8.7 Reliance by Indenture Trustee. (a) Whenever in the
administration of this Agreement the Indenture Trustee shall deem it necessary
or desirable that a matter with respect to DLPT be proved or established in
connection with the taking, suffering or omitting any action hereunder and/or
any other Related Document by the Indenture Trustee, unless otherwise
specifically provided herein, such matter may be deemed to be conclusively
proved or established by a certificate of DLPT or the Servicer delivered to the
Indenture Trustee, and such certificate may be conclusively relied upon by the
Indenture Trustee and shall constitute a full warranty to the Indenture Trustee
for any action taken, suffered or omitted in reliance thereon.
(b) Subject to the provisions of the Indenture incorporated by
reference in Section 8.6(c) hereto, the Indenture Trustee may consult with
counsel and any opinion of such counsel shall be full and complete authorization
and protection in respect of any action taken or suffered by the Indenture
Trustee hereunder in accordance therewith.
(c) The Indenture Trustee may rely and shall be fully protected
in acting upon any resolution, statement, certificate, instrument, opinion,
report, notice, request, consent, order, bond or other paper or document which
it has no reason to believe to be other than genuine and to have been signed or
presented by the proper party or parties or, in the case of cables, telecopies
and telexes, to have been sent by the proper party or parties. In the absence of
its gross negligence, bad faith or willful misconduct, the Indenture Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Indenture Trustee that conform to the requirements of this Agreement or any
other Transaction Document.
SECTION 8.8 Limitations on Duties of the Indenture Trustee.
(a) The Indenture Trustee undertakes to perform only the duties expressly set
forth herein, together with such powers as are reasonably incidental thereto.
-12-
(b) The Indenture Trustee may exercise the rights and powers
granted to it by this Agreement and the other Related Documents, but only
pursuant to the terms of this Agreement, and the Indenture Trustee shall not be
liable with respect to any action taken or omitted by it in accordance with a
direction of the Secured Parties.
(c) Except as herein otherwise expressly provided, the Indenture
Trustee shall not be under any obligation to take any action which is
discretionary on the part of the Indenture Trustee under the provisions hereof
or under any Related Document, except upon the written request of the Required
Secured Parties pursuant to this Agreement.
(d) The Indenture Trustee shall not be liable for any error of
judgment made in good faith by an officer of it, unless it shall be proved that
the Indenture Trustee was grossly negligent in ascertaining the pertinent facts.
(e) The Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement at the
request or direction of the Required Secured Parties pursuant to this Agreement,
unless the Indenture Trustee has been provided adequate security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
SECTION 8.9 Resignation and Removal of the Indenture Trustee(a)
The Indenture Trustee (i) may at any time (with or without cause) by giving
thirty (30) days' prior written notice to DLPT and all Secured Parties, resign
and be discharged of the responsibilities hereby created, such resignation to
become effective upon the appointment of a successor Indenture Trustee, the
assignment of the Security Interest to the successor Indenture Trustee and the
acceptance of such appointment and assignment by such successor Indenture
Trustee and (ii) may be removed at any time (with or without cause) by giving
thirty (30) days' prior written notice to the Indenture Trustee after the
affirmative vote of the Required Secured Parties, such removal to become
effective upon the appointment of a successor Indenture Trustee, the assignment
of the Security Interest to the successor Indenture Trustee and the acceptance
of such appointment and assignment by such successor.
SECTION 8.10 Reasonable Care. The Indenture Trustee shall be
deemed to have exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which the Indenture Trustee accords its own property
and the property of its other customers, consistent with the degree of care used
by other national banking institutions exercising similar functions.
SECTION 8.11 Delegation of Duties. The Indenture Trustee may
execute any of the powers hereof and perform any duty hereunder either directly
or by or through Indenture Trustees or attorneys-in-fact, which may include
officers and employees of the Indenture Trustee or otherwise. Neither the
Indenture Trustee nor DLPT shall be responsible for the negligence, bad faith or
willful misconduct of any Indenture Trustees or attorneys-in-fact selected by
the Indenture Trustee with due care.
-13-
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Amendments, Supplements and Waivers. No amendment or
waiver of any provision of this Agreement, nor consent to any departure by DLPT
therefrom, nor instruction to the Indenture Trustee, shall in any event be
effective unless (i) the same shall be in writing and signed by each of the
parties hereto and (ii) the Rating Agency Condition is satisfied with respect to
such amendment or waiver.
SECTION 9.2 Recourse. The obligations of DLPT created hereunder
are contracted for and created solely in respect of the Origination Trust Assets
allocated to the Lease SUBI, the Lease SUBI Portfolio and the Fleet Receivable
SUBI, and not against any other Origination Trust Assets. The Indenture Trustee,
by entering into and accepting this Agreement, and each Secured Party by
accepting the benefit of this Agreement, acknowledges and agrees that (a) each
of the Lease SUBI and the Fleet Receivable SUBI is a separate series of DLPT as
provided in Section 3806(b)(2) of Chapter 38 of Title 12 of the Delaware Code,
12 Del.C. Section 3801 et seq., (b)(i) the obligations under this Agreement
shall be enforceable against the Lease SUBI Portfolio or the Fleet Receivable
SUBI only, and not against any other SUBI Portfolio (used in this Section as
defined in the Origination Trust Agreement) or the UTI Portfolio, (ii) other
debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to the Lease SUBI, the Lease SUBI Portfolio, the
Fleet Receivable SUBI or the Fleet Receivables shall be enforceable against the
Lease SUBI Portfolio or the Fleet Receivable SUBI, as applicable and not against
any other SUBI Portfolio (used in this Section as defined in the Origination
Trust Agreement) or the UTI Portfolio and (iii) 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, 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 under the Guaranty
or hereunder or otherwise arising from or with respect to the Lease SUBI or
Fleet Receivable SUBI, respectively, in respect of such claim, and (d)(i) no
creditor or holder of a claim relating to the Lease SUBI, the Fleet Receivable
SUBI, the Lease SUBI Portfolio or the Fleet Receivables 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.
SECTION 9.3 Notices. Unless otherwise specifically provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telegraphic, telex, facsimile transmission or cable
communication) and mailed, transmitted or delivered to the applicable party at
its address set forth in Annex III. Any such notice or communication shall be
deemed to have been given or made as of the date so delivered, if delivered
-14-
personally or by overnight courier; when receipt is acknowledged, if
transmitted; and five calendar days after mailing, if sent by registered or
certified mail (except notice of change of address shall not be deemed to have
been given until actually received by the addressee). Where this Agreement
provides for notice in any manner, such notice may be waived in writing by any
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice.
SECTION 9.4 Headings. The table of contents of this Agreement and
Section, clause and other headings used in this Agreement are for convenience of
reference only and shall not affect the construction of this Agreement.
SECTION 9.5 Severability. In each case to the extent permitted by
Applicable Law, any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 9.6 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of each of the parties hereto and shall inure to the
benefit of the Secured Parties and their respective successors and assigns,
provided, however, that, DLPT may not assign or transfer any of its rights or
obligations hereunder without the prior consent of the Indenture Trustee.
SECTION 9.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO
THE EXTENT THAT UNDER NEW YORK LAW THE PERFECTION (AND THE EFFECT OF PERFECTION
OR NONPERFECTION) OF ANY SECURITY INTEREST IN SOME PORTION OF THE COLLATERAL IS
GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
SECTION 9.8 Counterparts. This Agreement may be executed in
separate counterparts, each of which shall be an original and all of which taken
together shall constitute one and the same instrument.
SECTION 9.9 Other Transactions. Nothing contained herein shall
preclude any Secured Party from engaging in any transaction, in addition to
those contemplated by this Agreement and the Transaction Documents, with DLPT or
any of its Affiliates.
SECTION 9.10 Limitation on Actions, Inconsistency.
Notwithstanding anything contained herein to the contrary, for so long as this
Agreement is in effect neither the Indenture Trustee nor any other Secured Party
(a) may take any action to attach, foreclose or realize upon the Collateral,
whether pursuant to the Security Interest or otherwise, except pursuant to the
terms of this Agreement or (b) shall take any other action inconsistent with the
rights and remedies granted to the Indenture Trustee or the Secured Parties
under this Agreement, including the right of the Indenture Trustee to give
instructions to any Person or Indenture Trustee.
-15-
SECTION 9.11 Non-petition. The Indenture Trustee, by entering
into and accepting this Agreement, and each Secured Party by accepting the
benefit of this Agreement, hereby covenants and agrees that it will not at any
time institute against, or join any other Person in instituting against, DLPT,
Raven Funding LLC, 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 9.12 FORUM SELECTION AND CONSENT TO JURISDICTION. EACH
PARTY HERETO EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, SITTING IN THE BOROUGH OF MANHATTAN, FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH SUCH LITIGATION.
SECTION 9.13 WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO.
SECTION 9.14 Limitation of Liability. It is expressly understood
and agreed by the parties hereto that (a) this Agreement is executed and
delivered by Wilmington Trust Company, not individually or personally but solely
as trustee of DLPT in the exercise of the powers and authority conferred and
vested in it under the Origination Trust Agreement, (b) each of the
representations, undertakings and agreements herein made on the part of DLPT is
made and intended not as a personal representation, undertaking and agreement by
Wilmington Trust Company but is made and intended for the purpose of binding
only DLPT and (c) under no circumstances shall Wilmington Trust Company be
personally liable for the payment of any indebtedness or expenses of DLPT or be
liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by DLPT under this Agreement except in accordance
with the provisions of the Origination Trust Agreement.
-16-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
▇.▇. ▇▇▇▇▇▇▇▇ TRUST
By: Wilmington Trust Company, not in its
individual capacity but solely as
Delaware Trustee and SUBI Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
Title: Financial Services Officer
JPMORGAN CHASE BANK, as Indenture Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇
---------------------------------------------
Title: Trust Officer
SCHEDULE I
Definitions
Terms not otherwise defined herein are used as defined in the
Base Indenture, dated as of June 30, 1999, as amended, between Chesapeake
Funding LLC (formerly known as Greyhound Funding LLC), as Issuer and JPMorgan
Chase Bank (formerly known as the Chase Manhattan Bank), as Indenture Trustee,
as amended.
"Affiliate" means, with respect to any Person, any Person
directly or indirectly controlling, controlled by, or under common control with,
such former Person. As used in this definition of "Affiliate," the term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through ownership of voting securities, by contract or otherwise.
"Agreement" has the meaning assigned to that term in the preamble
of this Agreement.
"Applicable Law" with respect to any Person or matter, means any
law, rule, regulation, order, decree or other requirement having the force of
law relating to such Person or matter and, where applicable, any interpretation
thereof by any Person having jurisdiction with respect thereto or charged with
the administration or interpretation thereof.
"Base Indenture" has the meaning assigned to that term in the
first paragraph of this Agreement.
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks are authorized or obligated by law, regulation or
executive order to close in New York City.
"Chesapeake Funding" has the meaning assigned to that term in the
first paragraph of this Agreement.
"Collateral" means, collectively, all of the following
Origination Trust Assets allocated to the Lease SUBI or the Fleet Receivable
SUBI, whether now owned or existing or hereafter acquired or arising: (i) all
Leases, (ii) all Fleet Receivables, (iii) all Leased Vehicles, (iv) all Paid in
Advance Vehicles and (v) all Proceeds and products of any and all of the
foregoing.
"GAAP" means generally accepted accounting principles in effect
from time to time in the United States.
"Grant" means to grant, bargain, sell, warrant, alienate, remise,
demise, release, convey, assign, transfer, mortgage, pledge, create and grant a
security interest in, general lien upon, and right of set-off against, deposit,
set over and confirm.
Page 2
"Guarantor Default" means any failure of the Guarantor to pay any
Obligation when due including, if applicable, any grace period under the terms
of the Guaranty.
"Guaranty" has the meaning assigned to that term in the first
paragraph of this Agreement.
"Indemnified Party" is defined in Section 8.4(a).
"Indenture Trustee" has the meaning assigned to that term in the
first paragraph of this Agreement.
"Liens" shall mean any security interest, mortgage, pledge, lien,
claim, charge, encumbrance, title retention agreement, lessor's interest in a
financing lease or analogous instrument, in, of, or on DLPT's property.
"Nominee Agreement" means the Nominee Agreement, dated as of June
18, 2003, between Raven, as nominee lienholder and the Indenture Trustee.
"Obligations" has the meaning assigned to that term in the
Guaranty.
"Payment Date" with respect to each Series of Investor Notes has
the meaning assigned to that term in the applicable Series Supplement.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Proceeds" means all "proceeds" as such term is defined in
Section 9-306(l) of the UCC and all other proceeds of Collateral.
"Raven" is defined in Section 6.1(a)(i)(ii).
"Related Documents" means this Agreement, the Guaranty and the
Indenture.
"Required Secured Parties" means (i) so long as any Investor
Notes are Outstanding, the Holders of more than 50% of the aggregate principal
amount of all Outstanding Investor Notes and (ii) at any time when no Investor
Notes are Outstanding, Persons holding more than 50% of the aggregate amount of
the Secured Obligations then owing by DLPT under the Guaranty.
"Requirements of Law" for any Person, means the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other governmental authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Secured Obligations" means each and every obligation of DLPT to
make payment of any amount owing by it under the terms of the Guaranty.
Page 3
"Secured Parties" has the meaning assigned to that term in the
first paragraph of this Agreement.
"Security Interest" means the security interest Granted under
this Agreement in the Collateral securing the Secured Obligations.
"UCC" means at any time the Uniform Commercial Code as in effect
in the State of New York as of the date hereof; provided, however, that if by
reason of mandatory provisions of law, the perfection or the effect of
perfection or non-perfection of the Security Interest in any collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other the
State of New York, "UCC" means the Uniform Commercial Code as in effect in the
other jurisdiction for purposes of the provisions hereof relating to such
perfection or the effect of perfection or non-perfection (and for purposes of
definitions related to such provisions).
"United States" or "U.S." means the United States of America, its
▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ and the Commonwealth of Puerto Rico.
SCHEDULE II
Locations
▇.▇. ▇▇▇▇▇▇▇▇ Trust:
Jurisdiction of Organization:
State of Delaware
Principal Place of Business:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Office
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE III
Addresses for Notices
DLPT
▇.▇. ▇▇▇▇▇▇▇▇ TRUST
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
INDENTURE TRUSTEE
JPMORGAN CHASE BANK
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(i)