Exhibit 10.17
GUARANTY
THIS GUARANTY (this "Guaranty") dated as of June 18, 2003, is made by
X.X. Xxxxxxxx Trust, a Delaware statutory trust (the "Guarantor"), in respect of
the obligations of Chesapeake Funding LLC (formerly known as Greyhound Funding
LLC), a Delaware limited liability company ("Chesapeake Funding"). Reference is
hereby made to (i) the Base Indenture (the "Base Indenture"), dated as of June
30, 1999, as amended, between Chesapeake Funding, as Issuer and JPMorgan Chase
Bank (formerly known as the Chase Manhattan Bank), as Indenture Trustee (in such
capacity, the "Indenture Trustee"), and each supplement (each an "Indenture
Supplement") to the Base Indenture executed in connection with the issuance of
any series of Investor Notes (the Base Indenture, as supplemented by each
Indenture Supplement, the "Indenture") and (ii) the Security Agreement, dated as
of June 18, 2003, between X.X. Xxxxxxxx Trust and the Indenture Trustee. Except
as otherwise defined herein, terms used herein and defined in the Base Indenture
shall be used herein as defined therein.
W I T N E S S E T H
WHEREAS, Chesapeake Funding and the Indenture Trustee have entered
into the Base Indenture, providing for the issuance of Investor Notes from time
to time as contemplated therein; and
WHEREAS, the Guarantor has obtained, and will obtain, benefits from
the issuance of Investor Notes by Chesapeake Funding from time to time under the
Indenture;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to the Guarantor, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby agrees with the Indenture Trustee 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") as follows:
1. Guaranty. The Guarantor hereby irrevocably, absolutely and
unconditionally guarantees to the Indenture Trustee the payment and performance
of the following obligations and liabilities (hereinafter collectively referred
to as the "Obligations") on the terms set forth herein:
(i) payment by Chesapeake Funding of all amounts now or hereafter owed
by Chesapeake Funding to any Investor Noteholder under the Indenture,
whether for principal, interest, fees, penalties, expenses, indemnities or
otherwise;
(ii) payment by Chesapeake Funding of dividends on each series of
Preferred Membership Interests, when, as and if declared by Chesapeake
Funding, and payable by Chesapeake Funding from amounts on deposit in the
Collection Account;
(iii) payment by Chesapeake Funding of the redemption price of each
series or portion thereof of Preferred Membership Interests subject to
mandatory redemption with amounts on deposit in the Collection Account;
(iv) payment by Chesapeake Funding of all other amounts owed by
Chesapeake Funding to any Secured Party, whether for fees, penalties,
expenses, indemnities or otherwise; and
(v) payment of any and all expenses, including reasonable attorneys'
fees, incurred by the Indenture Trustee or the Secured Parties in enforcing
their rights under this Guaranty.
2. Payments under Guaranty. (a) In the event any Secured Party does
not receive the full amount of any Obligation payable to or for the benefit of
such Secured Party on any date (a "Chesapeake Default"), then the Guarantor
shall pay to the Indenture Trustee, for the benefit of such Secured Party, any
such amount that remains outstanding on the later of (x) the date that is one
year following the latest final maturity date of any Class of Investor Notes
Outstanding on the date of such Chesapeake Default and (y) Five Business Days
following the date of such Chesapeake Default.
(b) All amounts paid by the Guarantor under this Guaranty will be
treated like Collections and applied in accordance with the priority of payment
provisions of the Indenture.
3. Continuance of this Agreement. This Guaranty (i) is a continuing
guarantee and shall remain in full force and effect until all of the Obligations
have been indefeasibly paid in full and the Indenture has been terminated in
accordance with its terms; and (ii) shall continue to be effective or shall be
reinstated, as the case may be, if at any time any payment of any of the
Obligations is rescinded, avoided or rendered void as a preferential transfer,
impermissible set-off, fraudulent conveyance or must otherwise be returned or
disgorged by the Indenture Trustee or any Secured Party upon the insolvency,
bankruptcy or reorganization of any Person, all as though such rescinded,
avoided or voided payment had not been made, and notwithstanding any action or
failure to act on the part of the Indenture Trustee or such Secured Party in
reliance on such payment.
4. Waivers. The Guarantor hereby waives (a) promptness and diligence;
(b) notice of the incurrence of any additional obligations by Chesapeake
Funding; (c) notice of any actions taken by the Indenture Trustee or the Secured
Parties under the Indenture; (d) acceptance of this Guaranty and reliance
thereon by the Indenture Trustee or the Secured Parties; and (e) presentment,
demand of payment, notice of dishonor or nonpayment, protest and notice of
protest with respect to the Obligations, and all other formalities of every kind
in connection with the enforcement of the Obligations, the omission of or delay
in which might constitute grounds for relieving the Guarantor of its obligations
under this Guaranty.
5. Subrogation and Similar Rights. The Guarantor waives any right of
subrogation to the claims of the Indenture Trustee of the Secured Parties
against Chesapeake Funding, and any right of indemnification by or contribution
from Chesapeake Funding arising by reason of any payment made by the Guarantor
under this Guaranty or otherwise. If,
-2-
notwithFtanding such waiver, any amount shall be paid to the Guarantor on
account of such subrogation, indemnification or contribution at any time when
all of the Obligations shall not have been discharged in full, such amount shall
be held in trust for the benefit of the Indenture Trustee and the Secured
Parties, shall be segregated from the other funds of the Guarantor and shall be
remitted to the Indenture Trustee for application against the Obligations, in
such order and amount as the Indenture Trustee shall elect.
6. Representations and Warranties. The Guarantor represents and
warrants to the Indenture Trustee and the Secured Parties that:
a. The Guarantor has full capacity to make and perform this
Guaranty.
b. This Guaranty has been duly executed and delivered by the
Guarantor and satisfaction by the Guarantor of the Obligations will
not violate any applicable provision of law or judgment, order or
regulation of any court or of any public or governmental agency or
authority nor conflict with or constitute a breach of or a default
under any instrument to which the Guarantor is a party or by which the
Guarantor or any of the Guarantor's property is bound, and that this
Guaranty is a legal, valid and binding obligation of the Guarantor
enforceable in accordance with its terms.
c. There is no litigation, proceeding or investigation pending
or, to the knowledge of the Guarantor, threatened against the
Guarantor, which has resulted or could reasonably be expected to
result in a material adverse effect on the business, property or
financial condition of the Guarantor or on the performance by the
Guarantor of the Guarantor's obligations hereunder, and the Guarantor
is not in violation in any material respect of any applicable statute,
rule, order or regulation of any governmental body.
7. Notices. All notices, requests, demands, claims and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder will be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Indenture Trustee:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to the Guarantor:
X.X. Xxxxxxxx Trust
000 Xxxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
-3-
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
8. Recourse. The obligations of the Guarantor 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 Guaranty, and each Secured Party by
accepting the benefit of this Guaranty, acknowledges and agrees that (a) each of
the Lease SUBI and the Fleet Receivable SUBI is a separate series of the
Guarantor 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
Guaranty shall be enforceable against the Lease SUBI Portfolio and 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, 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 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.
9. Miscellaneous.
a. This Guaranty contains the entire agreement of the Indenture
Trustee, the Secured Parties and the Guarantor. No amendment of any provision of
this Guaranty shall be effective unless it is in writing and signed by the
Guarantor and the Indenture Trustee, and no waiver of any provision of this
Guaranty, and no waiver or consent to any departure by the Guarantor therefrom,
shall be effective unless (i) it is in writing and signed by the Indenture
Trustee and (ii) the Rating Agency Condition has been satisfied with respect to
such amendment, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
-4-
b. No failure on the part of the Indenture Trustee or any of the
Secured Parties or such Person's assigns to exercise, and no delay in
exercising, any right hereunder or under the Indenture or any right against
Chesapeake Funding shall operate as a waiver hereof or thereof; nor shall any
single or partial exercise of any right preclude any other or further exercise
thereof or the exercise of any other right. The rights and remedies of the
Indenture Trustee and the Secured Parties under this Guaranty and the Indenture
are cumulative and are in addition to, and not exclusive of, any rights or
remedies provided by law.
c. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability, and such prohibition or
unenforceability shall not invalidate such provision to the extent it is not
prohibited or unenforceable in any other jurisdiction, nor invalidate the
remaining provisions hereof or thereof, all of which shall be liberally
construed in favor of the Indenture Trustee in order to effect the provisions
hereof.
d. The obligations of the Guarantor under this Guaranty shall not
be subject to any counterclaim, setoff, deduction or defense based upon any
related or unrelated claim which the Guarantor may now or hereafter have against
the Indenture Trustee or the Secured Parties, except indefeasible discharge of
the Obligations.
e. The Indenture Trustee, on behalf of the Secured Parties, shall
be entitled to enforce this Guaranty directly against the Guarantor.
f. This Agreement shall be governed by and construed in
accordance with the law of the State of New York.
g. The paragraph headings used herein are for convenience only
and do not affect or modify the terms and conditions hereof.
10. Judicial Proceedings. Any suit, action, or proceeding, whether
claim or counterclaim, brought or instituted by the Indenture Trustee, the
Secured Parties or the Guarantor, or any of their successors or assigns, on or
with respect to this Guaranty, the dealings of the Indenture Trustee, the
Secured Parties or the Guarantor with respect hereto, shall be tried only by a
court and not by a jury. THE GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR
PROCEEDING. Further, the Guarantor waives any right it may have to claim or
recover, in any such suit, action or proceeding, any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. THE GUARANTOR ACKNOWLEDGES AND AGREES THAT THIS PARAGRAPH IS A
SPECIFIC AND MATERIAL ASPECT OF THIS GUARANTY AND THAT NEITHER THE SECURED
PARTIES NOR THE INDENTURE TRUSTEE WOULD ENTER INTO THE TRANSACTIONS CONTEMPLATED
HEREIN IF THE WAIVERS SET FORTH IN THIS PARAGRAPH WERE NOT A PART OF THIS
AGREEMENT.
11. Consent to Jurisdiction and Service of Process. The Guarantor
irrevocably appoints each and every officer of the Indenture Trustee as its
attorneys upon whom may be
-5-
served, by regular or certified mail at the address for notices set forth in the
Base Indenture, any notice, process or pleading in any action or proceeding
against it arising out of or in connection with this Guaranty, the Base
Indenture or the Investor Notes. The Guarantor hereby (a) consents that any
action or proceeding against it be commenced and maintained in any court within
the State of New York or in the United States District Court for the Southern
District of New York by service of process on any such officer; (b) agrees that
the courts of the State of New York and the United States District Court for the
Southern District of New York shall have jurisdiction with respect to the
subject matter hereof and the person of the Guarantor; and (c) waives any
objection that the Guarantor may now or hereafter have as to the venue of any
such suit, action or proceeding brought in such a court or that such court is an
inconvenient forum. Notwithstanding the foregoing, the Indenture Trustee, in its
absolute discretion, may also initiate proceedings in the courts of any other
jurisdiction in which the Guarantor may be found or in which any of its
properties may be located.
12. Non-petition. The Indenture Trustee, by entering into and
accepting this Guaranty, and each Secured Party by accepting the benefit of this
Guaranty, hereby covenants and agrees that it will not at any time institute
against, or join any other Person in instituting against, the Guarantor, 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.
13. Limitation of Liability. It is expressly understood and agreed by
the parties hereto that (a) this Guaranty is executed and delivered by
Wilmington Trust Company, not individually or personally but solely as trustee
of the Guarantor 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 the
Guarantor 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 the Guarantor and (c) under no circumstances shall Wilmington
Trust Company be personally liable for the payment of any indebtedness or
expenses of the Guarantor or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
Guarantor under this Guaranty except in accordance with the provisions of the
Origination Trust Agreement.
-6-
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be
duly executed as of the date first above written.
X.X. Xxxxxxxx Trust, as Guarantor
By: Wilmington Trust Company, not in
its individual capacity but solely as
Delaware Trustee and SUBI Trustee
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------------------
Title: Financial Services Officer
JPMORGAN CHASE BANK, as
Indenture Trustee
By: /s/ Xxxxxx Xxx
---------------------------------------------
Title: Trust Officer
