Exhibit 4.3
CHESAPEAKE FUNDING LLC,
as Issuer
and
JPMORGAN CHASE BANK,
as Indenture Trustee
SUPPLEMENTAL INDENTURE No. 2
Dated as of May 27, 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 Section 3.2.....................................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...............................................2
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.................................................4
Section 5.5 Table of Contents, Headings, etc.............................5
Section 5.6 Choice of Law................................................5
SUPPLEMENTAL INDENTURE No. 2, dated as of May 27, 2003 ("Supplemental
Indenture"), to BASE INDENTURE, dated as of June 30, 1999, as supplemented by
Supplemental Indenture No. 1, dated as of October 28, 1999, 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, 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,
dated as of October 28, 1999, (the "Base Indenture");
WHEREAS, the Issuer desires to amend the Base Indenture pursuant to
Section 12.1(d) thereof to correct an inconsistency in certain provisions
thereof;
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 Section 3.2.
Section 3.2(c) of the Base Indenture is hereby amended and restated in
its entirety as follows:
"(c) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of
the Indenture Trustee hereunder, the Issuer agrees that, unless such
action is specifically permitted hereunder or under the other
Transaction Documents, it will not, without the prior written consent
of the Holders of a Majority in Interest of each Series of Outstanding
Notes, (i) amend, modify, waive, supplement, terminate or surrender,
or agree to any amendment, modification, supplement, termination,
waiver or
surrender of, the terms of any of the Issuer Assets, including any of
the Transaction Documents; provided that no consent of Investor
Noteholders shall be required for any amendment, modification or
waiver of or to any Transaction Document if such amendment,
modification or waiver does not adversely affect in any material
respect the Noteholders of any Series of Investor Notes (as
substantiated by an Opinion of Counsel to such effect) and provided
further that the Rating Agency Condition is satisfied with respect to
each affected Series of Investor Notes; or (ii) waive timely
performance or observance by SPV under the Transfer Agreement or the
Origination Trust, VMS or the Servicer under the Origination Trust
Documents. Upon the occurrence of a Servicer Termination Event, the
Issuer will not, without the prior written consent of the Indenture
Trustee or the Holders of a Majority in Interest of each Series of
Outstanding Notes, terminate the Servicer and appoint a successor
Servicer in accordance with the Servicing Agreement and will terminate
the Servicer and appoint a successor Servicer in accordance with the
Servicing Agreement if so directed by the Indenture Trustee or the
Holders of a Majority in Interest of each Series of Outstanding
Notes."
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 and Governmental Authorization.
The execution, delivery and performance by the Issuer of this
Supplemental Indenture (a) is within the Issuer's power, has been duly
authorized by all necessary action, (b) requires no action by or in respect of,
or filing with, any governmental body, agency or official which has not been
obtained 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 officer of the Issuer.
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
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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, 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 an Manager'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 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 an Manager'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 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;
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(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) the 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 No. 2, 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 of enforceability
of the other provisions of this Supplemental Indenture.
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.
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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 No. 2 to be duly executed by their respective duly
authorized officers as of the day and year first written above.
CHESAPEAKE FUNDING LLC,
as Issuer
By: /s/ Xxxxxx X. Xxxxxx
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Manager
JPMORGAN CHASE BANK,
as Indenture Trustee
By: /s/ Xxxxxx Xxx
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Trust Officer
