Exhibit 4.5
CHESAPEAKE FUNDING LLC,
as Issuer
and
JPMORGAN CHASE BANK,
as Indenture Trustee
SUPPLEMENTAL INDENTURE No. 4
Dated as of July 31, 2003
to
BASE INDENTURE
Dated as of June 30, 1999
Asset Backed Notes
(Issuable in Series)
TABLE OF CONTENTS
Page
SECTION 1: CERTAIN DEFINED TERMS....................................1
SECTION 2: AMENDMENT TO BASE INDENTURE........................1
Section 2.1 Amendment to Schedule 1............................1
SECTION 3: REPRESENTATIONS AND WARRANTIES...........................2
Section 3.1 Affirmation of Representations and Warranties......2
Section 3.2 LLC Agreement and Governmental Authorization.......2
Section 3.3 Binding Effect.....................................3
Section 3.4 No Consent.........................................3
SECTION 4: CONDITIONS PRECEDENT.....................................3
SECTION 5: MISCELLANEOUS............................................4
Section 5.1 Duplicate Originals................................4
Section 5.2 Ratification and Effect............................4
Section 5.3 Severability of Provisions.........................4
Section 5.4 Counterparts.......................................5
Section 5.5 Table of Contents, Headings, etc...................5
Section 5.6 Choice of Law......................................5
(i)
SUPPLEMENTAL INDENTURE No. 4, dated as of July 31, 2003
("Supplemental Indenture"), to BASE INDENTURE, dated as of June 30, 1999, as
supplemented by Supplemental Indenture No. 1 thereto, dated as of October 28,
1999, Supplemental Indenture No. 2 thereto, dated as of May 27, 2003, and
Supplemental Indenture No. 3 thereto, dated as of June 18, 2003, 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),
a New York banking corporation ("JPMorgan"), as trustee (in such capacity, the
"Indenture Trustee")
W I T N E S S E T H:
WHEREAS, the Issuer and JPMorgan are parties to a Base Indenture,
dated as of June 30, 1999, as supplemented by Supplemental Indenture No. 1
thereto, dated as of October 28, 1999, and Supplemental Indenture No. 2 thereto,
dated as of May 27, 2003, and Supplemental Indenture No. 3 thereto, dated as of
June 18, 2003 (the "Base Indenture");
WHEREAS, the Issuer desires to amend Schedule 1 to the Base Indenture
pursuant to Section 12.2 thereof to amend the definitions of "Excess Longer-Term
Lease Amount" and "Excess Residual Value Amount";
WHEREAS, each of the Investor Noteholders has consented to this
Supplemental Indenture pursuant to a consent set forth in the related Indenture
Supplement;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Supplemental Indenture; and
WHEREAS, JPMorgan, as Indenture Trustee, is willing to enter into
this Supplemental Indenture.
NOW, THEREFORE, for and in consideration of the premises, and
other good and valuable consideration the receipt and sufficiency of which are
acknowledged, it is mutually covenanted and agreed, that the Base Indenture be
amended and supplemented as follows:
SECTION 1: CERTAIN DEFINED TERMS
Certain capitalized terms used herein, and not defined herein,
shall have the respective meanings assigned to such terms in the Definitions
List attached as Schedule 1 (the "Definitions List") to the Base Indenture, as
such Definitions List may be hereafter further amended or modified from time to
time.
SECTION 2: AMENDMENT TO BASE INDENTURE
Section 2.1 Amendment to Schedule 1.
(a) the definition of "Excess Longer-Term Lease Amount" is hereby
deleted from Schedule 1 and replaced by the following:
""Excess Longer-Term Lease Amount" means, as of any date of
determination during an Accrual Period, an amount equal to the
greater of (a) the excess, if any, of (i) the aggregate Lease
Balance of all Eligible Leases having remaining terms of longer
than five years allocated to the Lease SUBI Portfolio as of the
last day of the Monthly Period immediately preceding the first
day of such Accrual Period over (ii) an amount equal to 20% of
the aggregate Lease Balance as of such date and (b) the excess if
any of (i) the aggregate Lease Balance of an all Eligible Leases
having remaining terms of longer than seven years allocated to
the Lease SUBI Portfolio as of the last day of the Monthly Period
immediately preceding the first day of such Accrual Period over
(ii) an amount equal to 7.5% of the aggregate Lease Balance as of
such date."
(b) the definition of "Excess Residual Value Amount" is hereby
deleted and replaced with the following:
""Excess Residual Value Amount" means, as of any date of
determination during an Accrual Period, an amount equal to the
excess, if any, of (i) the Aggregate Residual Value Amount as of
such date over (ii) an amount equal to 7.5% of the Aggregate Unit
Balance as of such date."
SECTION 3: REPRESENTATIONS AND WARRANTIES
In order to induce the Indenture Trustee to agree to this
Supplemental Indenture, the Issuer hereby represents and warrants, as follows,
for the benefit of the Indenture Trustee and the Investor Noteholders, as of the
date hereof:
Section 3.1 Affirmation of Representations and Warranties.
Each representation and warranty of the Issuer set forth in the
Base Indenture and in each other Transaction Document to which it is a party, is
true and correct as of the date of this Supplemental Indenture as though such
representation or warranty were being made on and as of the date hereof and is
hereby deemed repeated as though fully set forth herein.
Section 3.2 LLC Agreement.
The execution, delivery and performance by the Issuer of this
Supplemental Indenture (a) is within the Issuer's power, (b) has been duly
authorized by all necessary action and (c) does not contravene, or constitute a
default under, any Requirement of Law or any provision of applicable law, its
certificate of formation or the LLC Agreement or of any law or governmental
regulation, rule, contract, agreement, judgment, injunction, order, decree or
other instrument binding upon the Issuer or any of the Issuer Assets or result
in the creation or imposition of any Lien on any Issuer Asset except for Liens
created by the Indenture or the other Transaction Documents. This Supplemental
Indenture has been executed and delivered by a duly authorized manager of the
Issuer.
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Section 3.3 Binding Effect.
This Supplemental Indenture is a legal, valid and binding
obligation of the Issuer enforceable against the Issuer in accordance with its
terms (except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally or by general equitable principles,
whether considered in a proceeding at law or in equity and by an implied
covenant of good faith and fair dealing).
Section 3.4 No Consent.
No consent, action by or in respect of, approval or other
authorization of, or registration, declaration or filing with, any Governmental
Authority or other Person is required for the valid execution and delivery of
this Supplemental Indenture or for the performance of any of the Issuer's
obligations hereunder other than such consents, actions, approvals,
authorizations, registrations, declarations or filings as were obtained by the
Issuer prior to the date hereof.
SECTION 4: CONDITIONS PRECEDENT
This Supplemental Indenture shall become effective and shall be
binding on each of the parties hereto upon the satisfaction or due waiver of
each of the following conditions precedent:
(i) The Indenture Trustee shall have received evidence satisfactory
to it that each Manager of the Issuer has approved this
Supplemental Indenture.
(ii) The Indenture Trustee shall have received a Manager's or an
officer's Certificate of the Issuer, dated as of the date hereof,
to the effect that (i) no Amortization Event, Potential
Amortization Event, Event of Default or Potential Event of
Default is continuing or will occur as a result of the execution
and delivery of this Supplemental Indenture and (ii) the
execution and delivery of this Supplemental Indenture will not
result in any breach of any of the terms, conditions or
provisions of or constitute a default under any indenture,
mortgage, deed of trust or other agreement or instrument,
including, without limitation, any Transaction Document, to which
the Issuer is a party or by which it or its property is bound or
any order of any court or administrative agency entered in any
suit, action or other judicial or administrative proceeding to
which the Issuer is a party or by which it or its property may be
bound or to which it or its property may be subject.
(iii)The Indenture Trustee shall have received a Manager's or an
officer's Certificate of the Issuer, dated as of the date hereof,
to the effect that all conditions precedent provided for in the
Base Indenture with respect to the execution and delivery of this
Supplemental Indenture have been complied with in all material
respects.
(iv) The Indenture Trustee shall have received an Opinion of Counsel,
subject to the assumptions and qualifications stated therein, and
in a form substantially
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acceptable to the Indenture Trustee, dated the date hereof, substantially to the
effect that:
(a) all conditions precedent provided for in the Base Indenture
with respect to the execution and delivery of this
Supplemental Indenture have been complied with in all
material respects;
(b) the Issuer is duly organized under the jurisdiction of its
formation and has the power and authority to execute and
deliver this Supplemental Indenture;
(c) this Supplemental Indenture has been duly authorized,
executed and delivered by the Issuer;
(d) this Supplemental Indenture constitutes the legal, valid and
binding obligation of the Issuer, enforceable against the
Issuer in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar
laws affecting the enforcement of creditors' rights
generally and by general principles of equity (regardless of
whether the issue of enforceability is considered in a
proceeding in equity or at law); and
(e) such other matters as the Indenture Trustee may reasonably
require.
(v) The Indenture Trustee shall have received such other documents,
instruments, certifications, agreements or other items as the
Indenture Trustee may reasonably require.
SECTION 5: MISCELLANEOUS
Section 5.1 Duplicate Originals.
The parties may sign any number of copies of this Supplemental
Indenture. One signed copy is enough to prove this Supplemental Indenture.
Section 5.2 Ratification and Effect.
The Base Indenture, as amended and supplemented by this
Supplemental Indenture, is in all respects ratified and confirmed, shall
continue to be in full force and effect, and shall be read, taken and construed
as one and the same instrument.
Section 5.3 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Supplemental Indenture shall for any reason whatsoever be held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Supplemental Indenture and shall in no way affect the validity or enforceability
of the other provisions of this Supplemental Indenture.
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Section 5.4 Counterparts.
This Supplemental Indenture may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
Section 5.5 Table of Contents, Headings, etc.
The table of contents and headings of the Sections of this
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.
Section 5.6 Choice of Law.
THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the Indenture Trustee and the Issuer have
caused this Supplemental Indenture to be duly executed by their respective duly
authorized officers or managers as of the day and year first written above.
CHESAPEAKE FUNDING LLC,
as Issuer
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
JPMORGAN CHASE BANK,
as Indenture Trustee
By: /s/ Wen Xxx Xxxx
---------------------------
Name: Wen Xxx Xxxx
Title: Asst. Vice President
Consented to by:
XXXX VALLEY LLC, as holder of the
Series 0000-0 Xxxxxxxxx Membership
Interest
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
