EXHIBIT 10.5.c
EXECUTION COPY
BAY VIEW AUTO RECEIVABLES OWNER TRUST
Issuer
and
JPMORGAN CHASE BANK, N.A.
Trustee
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THIRD SUPPLEMENTAL INDENTURE
Dated as of January 31, 2005
to the
INDENTURE
Dated as of June 5, 2003
--------------------
THIS THIRD SUPPLEMENTAL INDENTURE is entered into as of January 31,
2005, among BAY VIEW AUTO RECEIVABLES OWNER TRUST, a statutory trust organized
and existing under the laws of the State of Delaware (the "Issuer") and JPMORGAN
CHASE BANK, N.A. (formerly known as JPMorgan Chase Bank), a national banking
corporation duly organized and existing under the laws of the United States of
America, as Trustee (the "Trustee").
RECITALS
A. The Issuer has heretofore duly executed and delivered to the
Trustee an Indenture, dated as of June 5, 2003 (as amended or modified from time
to time, the "Indenture"), providing for the issuance of the Notes. All
capitalized terms used in this Third Supplemental Indenture and not defined
herein shall have the meaning assigned to them in the Indenture.
B. Section 9.02 of the Indenture provides that, with the consent of
the Holders, the Issuer and the Trustee, by an Issuer Order, may enter into one
or more supplemental indentures to modify provisions of the Indenture.
C. All things necessary to make this Third Supplemental Indenture a
valid agreement of the Issuer, and a valid supplement to the Indenture, have
been done.
NOW, THEREFORE, in consideration of the premises set forth above,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to the Indenture. Effective as of the date
hereof and subject to the satisfaction of the conditions precedent set forth in
Section 2 below, the Indenture is hereby amended as follows:
1.1 The following definitions of "Excess Spread Trigger Period
Percentage", "Incremental Trigger Amount" and "Spread Account Deficiency" are
added to Section 1.01 of the Indenture:
"Excess Spread Trigger Period Percentage" means as of any
Determination Date during an Excess Spread Trigger Period, the product of
(a) the greatest amount by which 2.75% exceeded the Three Month Average
Excess Spread (rounded to the nearest hundredth of one percent) on such
Determination Date or any preceding Determination Date during such Excess
Spread Trigger Period and (b) 1.5.
"Incremental Trigger Amount" means, with respect to any
Determination Date, that portion, if any, of the Requisite Amount due
solely to (a) in the case of the first Determination Date in an Excess
Spread Trigger Period, the existence of an Excess Spread Trigger Period
Percentage, or (b) with respect to any other Determination Date, an
increase in the Excess Spread Trigger Period Percentage since the previous
Determination Date.
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"Spread Account Deficiency" means, with respect to any applicable
date, that the balance on deposit in immediately available funds in the
Spread Account is less than the Requisite Amount for such date.
1.2 The definition of "Excess Spread Trigger Event" in Section 1.01
of the Indenture is hereby amended by deleting the reference therein to "3.75%"
and substituting "2.75%" therefor.
1.3 The definition of "Excess Spread Trigger Period" in Section 1.01
of the Indenture is hereby amended by deleting the reference therein to "3.75%"
and substituting "2.75%" therefor.
1.4 The definition of "Requisite Amount" in Section 1.01 of the
Indenture is hereby amended and restated in its entirety as follows:
"Requisite Amount" means:
(a) at any time during an Excess Spread Trigger Period, an amount
equal to the lesser of (i) the Note Principal Balance at such time and
(ii) the greater of (A) $1,750,000 and (B) the Aggregate Receivable
Balance at such time times the lesser of (x) 2.0% and (y) 1.0% plus the
Excess Spread Trigger Period Percentage determined as of the most recent
Determination Date; and
(b) at any other time, an amount equal to the lesser of (i) the Note
Principal Balance at such time and (ii) the greater of (A) $1,750,000 and
(B) the Aggregate Receivable Balance at such time times 1.0%.
1.5 Subparagraph (e) of the definition of "Termination Event" in
Section 1.01 of the Indenture is hereby amended and restated in its entirety as
follows:
(e) a Spread Account Deficiency exists; provided, that (i) if such
Spread Account Deficiency exists solely as a result of the existence of an
Incremental Trigger Amount, a Termination Event under this subparagraph
(e) shall not occur with respect thereto unless there is a Spread Account
Deficiency (other than one resulting from the existence of a new
Incremental Trigger Amount) on the second Payment Date following the
Determination Date on which such Incremental Trigger Amount arose, and
(ii) if a transfer from the Spread Account to the Collection Account has
been made on a Transfer Date pursuant to Section 5.03(a), a Termination
Event under this subparagraph (e) cannot occur unless and until a Spread
Account Deficiency exists on or after the second Payment Date following
such Transfer Date;
1.6 Section 3.06(b) of the Indenture is hereby amended by deleting
the reference therein to "30 days" and substituting "90 days" therefor.
1.7 Section 8.02 of the Indenture is hereby amended by deleting the
reference therein to "Majority Holders" and substituting "Supermajority Holders"
therefor.
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SECTION 2. Conditions Precedent. This Third Supplemental Indenture
shall become effective as of the date first above written, upon satisfaction of
the following conditions: (i) receipt by the Indenture Trustee of an Opinion of
Counsel stating that the execution hereof is authorized and permitted by the
Indenture; and (ii) receipt by the Indenture Trustee of a fully executed copy
hereof, including the executed consent signature pages from each of the
Noteholders.
SECTION 3. Covenants, Representations and Warranties of the Issuer
and the Indenture Trustee.
3.1 Upon the effectiveness of this Third Supplemental Indenture,
each of Issuer and the Indenture Trustee hereby reaffirms all covenants,
representations and warranties made by it, as the same are amended hereby, in
the Indenture and agrees that all such covenants, representations and warranties
shall be deemed to have been re-made as of the effective date of this Third
Supplemental Indenture.
3.2 Each of Issuer and Indenture Trustee hereby represents and
warrants as to itself that this Third Supplemental Indenture constitutes the
legal, valid and binding obligation of such party enforceable against such party
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and general principles of equity
which may limit the availability of equitable remedies.
3.3 The Issuer hereby represents and warrants that upon the
effectiveness of this Third Supplemental Indenture, no event shall have occurred
and be continuing which constitutes an Event of Termination or which would
constitute a Default, an Event of Default or a Termination Event but for the
requirement that notice be given or time elapse or both.
SECTION 4. Reference to and Effect on the Indenture.
4.1 Upon the effectiveness of this Third Supplemental Indenture,
each reference in the Indenture to "this Agreement," "hereunder," "hereof,"
"herein," "hereby" or words of like import shall mean and be a reference to the
Indenture as amended hereby, and each reference to the Indenture in any other
document, instrument or agreement executed and/or delivered in connection with
the Indenture shall mean and be a reference to the Indenture as amended hereby.
4.2 Except as specifically amended hereby, the Indenture and other
documents, instruments and agreements executed and/or delivered in connection
therewith shall remain in full force and effect and are hereby ratified and
confirmed.
4.3 The execution, delivery and effectiveness of this Third
Supplemental Indenture shall not operate as a waiver of any right, power or
remedy of the Indenture Trustee or the Agent under the Indenture or any of the
other Transaction Documents, nor constitute a waiver of any provision contained
therein.
SECTION 5. GOVERNING LAW. THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
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THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).
SECTION 6. Execution in Counterparts. This Third Supplemental
Indenture may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together shall
constitute but one and the same instrument.
SECTION 7. Headings. Section headings in this Third Supplemental
Indenture are included herein for convenience of reference only and shall not
constitute a part of this Third Supplemental Indenture for any other purpose.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be executed on the date first set forth above by their
respective officers thereto duly authorized, to be effective as hereinabove
provided.
BAY VIEW AUTO RECEIVABLES OWNER TRUST,
as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual
capacity, but solely as Owner Trustee
By: /s/ Xxxx Xxx Xxxxxxx
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Name: Xxxx Xxx Xxxxxxx
Title: Assistant Vice President
JPMORGAN CHASE BANK, N.A. (formerly known
as JPMorgan Chase Bank), as Indenture Trustee
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Signature Page to
Third Supplemental Indenture
CONSENTED AND AGREED TO:
SHEFFIELD RECEIVABLES CORPORATION,
as a Noteholder
By: BARCLAYS BANK PLC, as its attorney-
in-fact
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Director
BARCLAYS BANK PLC,
as a Noteholder
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Director
UBS REAL ESTATE SECURITIES INC.,
as a Noteholder
By: /s/ Tamer El-Rayess
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Name: Tamer El-Rayess
Title: Director
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Managing Director
Signature Page to
Third Supplemental Indenture
