Exhibit 4.3
GREYHOUND FUNDING LLC,
as Issuer
and
THE CHASE MANHATTAN BANK,
as Indenture Trustee
SERIES 2001-1 INDENTURE SUPPLEMENT
dated as of September _, 2001
to
BASE INDENTURE
dated as of June 30, 1999
$750,000,000
of
Floating Rate Callable Asset-Backed Investor Notes
Table of Contents
Page
PRELIMINARY STATEMENT.......................................................1
DESIGNATION.................................................................1
ARTICLE I DEFINITIONS.......................................................1
ARTICLE II ARTICLE 5 OF THE BASE INDENTURE.................................13
Section 5A.1 Establishment of Series 2001-1 Subaccounts.............13
Section 5A.2 Allocations with Respect to the Series 2001-1
Investor Notes.....................................14
Section 5A.3 Determination of Interest..............................16
Section 5A.4 Monthly Application of Collections.....................17
Section 5A.5 Payment of Monthly Interest Payment....................20
Section 5A.6 Payment of Principal...................................20
Section 5A.7 The Administrator's Failure to Instruct the
Indenture Trustee to Make a Deposit or
Payment. ..........................................21
Section 5A.8 Series 2001-1 Reserve Account..........................21
Section 5A.9 Series 2001-1 Yield Supplement Account.................23
Section 5A.10 Series 2001-1 Distribution Account.....................25
Section 5A.11 Lease Rate Caps........................................25
ARTICLE III AMORTIZATION EVENTS............................................27
ARTICLE IV OPTIONAL PREPAYMENT.............................................29
ARTICLE V SERVICING AND ADMINISTRATOR FEES.................................29
Section 5.1 Servicing Fees...............................................29
Section 5.2 Administrator Fee............................................30
ARTICLE VI FORM OF SERIES 2001-1 NOTES.....................................30
Section 6.1 Initial Issuance of Series 2001-1 Investor
Notes..................................................................30
Section 6.2 Global Notes.................................................30
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Section 6.3 Definitive Notes............................................31
ARTICLE VII INFORMATION.....................................................31
ARTICLE VIII MISCELLANEOUS..................................................31
Section 8.1 Ratification of Indenture.....................................31
Section 8.2 Obligations Unaffected........................................31
Section 8.3 Governing Law.................................................31
Section 8.4 Further Assurances............................................31
Section 8.5 Exhibits......................................................32
Section 8.6 No Waiver; Cumulative Remedies................................32
Section 8.7 Amendments....................................................32
Section 8.8 Severability..................................................32
Section 8.9 Counterparts..................................................33
Section 8.10 No Bankruptcy Petition.......................................33
Section 8.11 SUBIs........................................................33
Section 8.12 Notice to Rating Agencies....................................34
Section 8.13 Conflict of Instructions.....................................34
EXHIBITS
Exhibit A-1: Form of Class A-1 Note
Exhibit A-2: Form of Class A-2 Note
Exhibit B: Form of Monthly Settlement Statement
Exhibit C: Form of Series 2001-1 Lease Rate Cap
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SERIES 2001-1 SUPPLEMENT, dated as of September _, 2001 (as amended,
supplemented, restated or otherwise modified from time to time, this
"Indenture Supplement") between GREYHOUND FUNDING LLC, a special purpose
limited liability company established under the laws of Delaware (the
"Issuer"), and THE CHASE MANHATTAN BANK ("Chase"), a New York banking
corporation, in its capacity as Indenture Trustee (together with its
successors in trust thereunder as provided in the Base Indenture referred to
below, the "Indenture Trustee"), to the Base Indenture, dated as of June 30,
1999, between the Issuer and the Indenture Trustee (as amended, modified,
restated or supplemented from time to time, exclusive of Indenture Supplements
creating new Series of Investor Notes, the "Base Indenture").
PRELIMINARY STATEMENT
---------------------
WHEREAS, Sections 2.2 and 12.1 of the Base Indenture provide, among
other things, that the Issuer and the Indenture Trustee may at any time and
from time to time enter into a Indenture Supplement to the Base Indenture for
the purpose of authorizing the issuance of one or more Series of Investor
Notes.
NOW, THEREFORE, the parties hereto agree as follows:
DESIGNATION
-----------
There is hereby created a Series of Investor Notes to be issued
pursuant to the Base Indenture and this Indenture Supplement and such Series
of Investor Notes shall be designated generally as Floating Rate Callable
Asset Backed Investor Notes, Series 2001-1.
The Series 2001-1 Investor Notes shall be issued in two classes: (i)
Series 2001-1 Floating Rate Callable Asset Backed Investor Notes, Class A-1,
which shall be designated generally as the Class A-1 Investor Notes and (ii)
the Series 2001-1 Floating Rate Callable Asset Backed Investor Notes, Class
A-2, which shall be designated generally as the Class A-2 Investor Notes. The
Class A-1 Investor Notes and the Class A-2 Investor Notes are referred to
collectively as the "Series 2001-1 Investor Notes." The Series 2001-1 Investor
Notes shall be issued in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof.
The proceeds from the sale of the Series 2001-1 Investor Notes (as
defined herein) shall be deposited in the Series 2001-1 Collection Subaccount
and shall be used by the Issuer to fund the maintenance of the SUBI
Certificates under the Transfer Agreement and/or to reduce the Invested
Amounts of other Series of Investor Notes.
ARTICLE I
DEFINITIONS
(a) All capitalized terms not otherwise defined herein are defined
in the Definitions List attached to the Base Indenture as Schedule 1 thereto.
All Article, Section or Subsection references herein shall refer to Articles,
Sections or Subsections of the Base Indenture, except as otherwise provided
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herein. Unless otherwise stated herein, as the context otherwise requires or
if such term is otherwise defined in the Base Indenture, each capitalized term
used or defined herein shall relate only to the Series 2001-1 Investor Notes
and not to any other Series of Investor Notes issued by the Issuer.
(b) The following words and phrases shall have the following
meanings with respect to the Series 2001-1 Investor Notes and the definitions
of such terms are applicable to the singular as well as the plural form of
such terms and to the masculine as well as the feminine and neuter genders of
such terms:
"Amortization Event" is defined in Article 3.
"Assumed Lease Term" means, with respect to any Series 2001-1 Yield
Shortfall Lease, the number of months over which the Capitalized Cost of
the related Leased Vehicle is being depreciated thereunder.
"Authorized Newspaper" means a daily newspaper published in the
English language of general circulation in Luxembourg (or if publication
is not practical in Luxembourg, in Europe).
"Avis" means Avis Group Holdings, Inc. and its successors and
assigns.
"Calculation Agent" means The Chase Manhattan Bank, in its capacity
as calculation agent with respect to the Series 2001-1 Note Rates.
"Cendant" means Cendant Corporation and its successors and
assigns.
"Class A-1 Final Maturity Date" means the September 2006 Payment
Date.
"Class A-1 Initial Invested Amount" means the aggregate initial
principal amount of the Class A-1 Investor Notes, which is $375,000,000.
"Class A-1 Interest Shortfall Amount" is defined in Section 5A.3.
"Class A-1 Invested Amount" means as of any date of determination,
an amount equal to (a) the Class A-1 Initial Invested Amount minus (b)
the amount of principal payments made to Class A-1 Investor Noteholders
on or prior to such date.
"Class A-1 Investor Noteholder" means the Person in whose name a
Class A-1 Investor Note is registered in the Note Register.
"Class A-1 Investor Notes" means any one of the Series 2001-1
Floating Rate Callable Asset Backed Investor Notes, Class A-1, executed
by the Issuer and authenticated by or on behalf of the Indenture Trustee,
substantially in the form of Exhibit A-1. Definitive Class A-1 Investor
Notes shall have such insertions and deletions as are necessary to give
effect to the provisions of Section 2.11 of the Base Indenture.
"Class A-1 Monthly Interest" means, with respect to any Series
2001-1 Interest Period, an amount equal to the product of (i) the Class
A-1 Note Rate for such Series
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2001-1 Interest Period, (ii) the Class A-1 Invested Amount on the first
day of such Series 2001-1 Interest Period, after giving effect to any
principal payments made on such date, or, in the case of the initial
Series 2001-1 Interest Period, the Class A-1 Initial Invested Amount and
(iii) a fraction, the numerator of which is the number of days in such
Series 2001-1 Interest Period and the denominator of which is 360.
"Class A-1 Note Rate" means, (i) with respect to the initial Series
2001-1 Interest Period, ___% per annum and (ii) with respect to each
Series 2001-1 Interest Period thereafter, a rate per annum equal to
One-Month LIBOR for such Series 2001-1 Interest Period plus 0.__% per
annum.
"Class A-2 Final Maturity Date" means the September 2013 Payment
Date.
"Class A-2 Initial Invested Amount" means the aggregate initial
principal amount of the Class A-2 Investor Notes, which is $375,000,000.
"Class A-2 Interest Shortfall Amount" is defined in Section 5A.3.
"Class A-2 Invested Amount" means, as of any date of determination,
an amount equal to (a) the Class A-2 Initial Invested Amount minus (b)
the amount of principal payments made to Class A-2 Investor Noteholders
on or prior to such date.
"Class A-2 Investor Noteholder" means the Person in whose name a
Class A-2 Investor Note is registered in the Note Register.
"Class A-2 Investor Notes" means any one of the Series 2001-1
Floating Rate Asset Backed Callable Investor Notes, Class A-2, executed
by the Issuer and authenticated by or on behalf of the Indenture Trustee,
substantially in the form of Exhibit A-2. Definitive Class A-2 Investor
Notes shall have such insertions and deletions as are necessary to give
effect to the provisions of Section 2.11 of the Base Indenture.
"Class A-2 Monthly Interest" means, with respect to any Series
2001-1 Interest Period, an amount equal to the product of (i) the Class
A-2 Note Rate for such Series 2001-1 Interest Period, (ii) the Class A-2
Invested Amount on the first day of such Series 2001-1 Interest Period,
after giving effect to any principal payments made on such date, or, in
the case of the initial Series 2001-1 Interest Period, the Class A-2
Initial Invested Amount and (iii) a fraction, the numerator of which is
the number of days in such Series 2001-1 Interest Period and the
denominator of which is 360.
"Class A-2 Note Rate" means, (i) with respect to the initial Series
2001-1 Interest Period, ___% per annum and (ii) with respect to each
Series 2001-1 Interest Period thereafter, a rate per annum equal to
One-Month LIBOR for such Series 2001-1 Interest Period plus 0.__% per
annum.
"Deficiency" is defined in Section 5A.4(b)(i).
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"Dividend Amount" means, with respect to any Payment Date, the
aggregate amount of dividends payable to the Series 2001-1 Preferred
Members in respect of their Series 2001-1 Preferred Membership Interests
pursuant to the LLC Agreement.
"Dollar", "US$" and "$" means lawful currency of the United States.
"DTC" means The Depository Trust Company or its successor, as the
Clearing Agency for the Series 2001-1 Investor Notes.
"Final Maturity Date" means the Class A-1 Final Maturity Date or the
Class A-2 Final Maturity Date.
"Indenture Supplement" has the meaning set forth in the preamble.
"Interest Shortfall" is defined in Section 5A.3.
"LIBOR Determination Date" means, with respect to any Series 2001-1
Interest Period, the second London Business Day next preceding the first
day of such Series 2001-1 Interest Period.
"London Business Day" means any day on which dealings in
deposits in Dollars are transacted in the London interbank market and
banking institutions in London are not authorized or obligated by law
or regulation to close.
"Monthly Interest Payment" is defined in Section 5A.4(c)(v).
"One-Month LIBOR" means, for each Series 2001-1 Interest Period, the
rate per annum determined on the related LIBOR Determination Date by the
Calculation Agent to be the rate for Dollar deposits having a maturity
equal to one month that appears on Telerate Page 3750 at approximately
11:00 a.m., London time, on such LIBOR Determination Date; provided,
however, that if such rate does not appear on Telerate Page 3750,
One-Month LIBOR will mean, for such 2001-1 Interest Period, the rate per
annum equal to the arithmetic mean (rounded to the nearest
one-one-hundred-thousandth of one percent) of the rates quoted by the
Reference Banks to the Calculation Agent as the rates at which deposits
in Dollars are offered by the Reference Banks at approximately 11:00
a.m., London time, on the LIBOR Determination Date to prime banks in the
London interbank market for a period equal to one month; provided,
further, that if fewer than two quotations are provided as requested by
the Reference Banks, "One-Month LIBOR" for such Series 2001-1 Interest
Period will mean the arithmetic mean (rounded to the nearest
one-one-hundred-thousandth of one percent) of the rates quoted by major
banks in New York, New York selected by the Calculation Agent, at
approximately 10:00 a.m., New York City time, on the first day of such
Series 2001-1 Interest Period for loans in Dollars to leading European
banks for a period equal to one month; provided, finally, that if no such
quotes are provided, "One-Month LIBOR" for such Series 2001-1 Interest
Period will mean One-Month LIBOR as in effect with respect to the
preceding Series 2001-1 Interest Period.
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"Outstanding" means, with respect to the Series 2001-1 Investor
Notes, all Series 2001-1 Investor Notes theretofore authenticated and
delivered under the Indenture, except (a) Series 2001-1 Investor Notes
theretofore canceled or delivered to the Transfer Agent and Registrar for
cancellation, (b) Series 2001-1 Investor Notes which have not been
presented for payment but funds for the payment of which are on deposit
in the Series 2001-1 Distribution Account and are available for payment
of such Series 2001-1 Investor Notes, and Series 2001-1 Investor Notes
which are considered paid pursuant to Section 11.1 of the Base Indenture,
or (c) Series 2001-1 Investor Notes in exchange for or in lieu of other
Series 2001-1 Investor Notes which have been authenticated and delivered
pursuant to the Indenture unless proof satisfactory to the Indenture
Trustee is presented that any such Series 2001-1 Investor Notes are held
by a purchaser for value.
"Payment Date" means the 7th day of each month, or if such date is
not a Business Day, the next succeeding Business Day, commencing
October 9, 2001.
"PHH" means PHH Corporation and its successors and assigns.
"Prepayment Date" is defined in Article 4.
"Rating Agencies" means, with respect to the Series 2001-1 Investor
Notes, Standard & Poor's, Xxxxx'x and any other nationally recognized
rating agency rating the Series 2001-1 Investor Notes at the request of
the Issuer. "Rating Agency Condition" means, with respect to any action
specified herein as requiring satisfaction of the Rating Agency
Condition, that each Rating Agency shall have been given 10 days' (or
such shorter period as shall be acceptable to each Rating Agency) prior
notice thereof and that each of the Rating Agencies shall have notified
the Issuer and the Indenture Trustee in writing that such action will not
result in a reduction or withdrawal of the then current rating of the
Series 2001-1 Investor Notes or of any Series 2001-1 Preferred Membership
Interests.
"Record Date" means, with respect to each Payment Date, the last day
of the immediately preceding calendar month.
"Reference Banks" means four major banks in the London interbank
market selected by the Calculation Agent.
"Series 2001-1" means Series 2001-1, the Principal Terms of which
are set forth in this Indenture Supplement.
"Series 2001-1 Administrator Fee" is defined in Section 5.2.
"Series 2001-1 Allocated Adjusted Aggregate Unit Balance" means, as
of any date of determination, the product of (a) the Adjusted Aggregate
Unit Balance and (b) the percentage equivalent of a fraction the
numerator of which is the Series 2001-1 Required Asset Amount as of such
date and the denominator of which is the sum of (x) the Series 2001-1
Required Asset Amount and (y) the aggregate Required Asset Amounts with
respect to each other Series of Investor Notes as of such date, including
all Series of
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Investor Notes that have been paid in full but as to which the
Amortization Period shall have not ended.
"Series 2001-1 Allocated Asset Amount Deficiency" means, as of any
date of determination, the amount, if any, by which the Series 2001-1
Allocated Adjusted Aggregate Unit Balance is less than the Series 2001-1
Required Asset Amount as of such date.
"Series 2001-1 Amortization Period" means the period beginning at
the earlier of (a) the close of business on the Business Day immediately
preceding the day on which an Amortization Event is deemed to have
occurred with respect to the Series 2001-1 Investor Notes and (b) the
close of business on the Period End Date in January 2003 and ending on
the date when (i) the Series 2001-1 Investor Notes are fully paid, (ii)
all dividends accrued and accumulated on the Series 2001-1 Preferred
Membership Interests shall have been declared and paid in full, (iii) the
Series 2001-1 Preferred Membership Interests shall have been redeemed in
accordance with their terms and (iv) all amounts owing in respect of the
Series 2001-1 Preferred Membership Interests under the Series 2001-1
Preferred Membership Interest Purchase Agreement shall have been paid in
full by the Issuer.
"Series 2001-1 Available Excess Collections Amount" means, on any
Business Day during the period commencing on a Period End Date to but
excluding the next succeeding Settlement Date, an amount equal to the
excess, if any, of (a) the amount deposited in the Series 2001-1 General
Collection Subaccount during the immediately preceding Monthly Period
pursuant to Section 5A.2(a) over (b) the sum of (i) the amounts to be
distributed from the Series 2001-1 Settlement Collection Subaccount
pursuant to paragraphs (i) through (xii) of Section 5A.4(c) on such
Settlement Date, and (ii) any amounts owing in respect of the Series
2001-1 Preferred Membership Interests under the Series 2001-1 Preferred
Membership Interest Purchase Agreement on such Settlement Date.
"Series 2001-1 Basic Servicing Fee" is defined in Section 5.1.
"Series 2001-1 Closing Date" means September __, 2001.
"Series 2001-1 Collateral" means the Collateral, the Series 2001-1
Reserve Account, the Series 2001-1 Yield Supplement Account, the Series
2001-1 Distribution Account and the Series 2001-1 Lease Rate Caps.
"Series 2001-1 Collection Subaccount" is defined in Section 5A.1(a).
"Series 2001-1 Distribution Account" is defined in Section 5A.10(a).
"Series 2001-1 Eligible Counterparty" means a financial institution
having on the date of any acquisition of a Lease Rate Cap short-term debt
ratings of at least A-1 by Standard & Poor's and P-1 by Xxxxx'x and
long-term unsecured debt ratings of at least A+ by Standard & Poor's and
Aa3 by Xxxxx'x.
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"Series 2001-1 Excess Fleet Receivable Amount" means, for any
Settlement Date, an amount equal to the product of (a) the average daily
Series 2001-1 Invested Percentage during the immediately preceding
Monthly Period and (b) the Excess Fleet Receivable Amount for such
Settlement Date.
"Series 2001-1 Gain on Sale Account Percentage" means 10%.
"Series 2001-1 Global Notes" is defined in Section 6.2.
"Series 2001-1 Hypothetical Yield Shortfall Amount" means, for any
Settlement Date, an amount equal to the product of (x) the excess, if
any, of the Series 2001-1 Minimum Yield Rate for such Settlement Date
over the CP Rate as of the last day of the immediately preceding Monthly
Period, (y) the Series 2001-1 Invested Percentage on such Settlement Date
of the aggregate Lease Balance of all Floating Rate Leases as of the last
day of the immediately preceding Monthly Period and (z) 2.75.
"Series 2001-1 Initial Invested Amount" means the sum of the Class
A-1 Initial Invested Amount and the Class A-2 Initial Invested Amount.
"Series 2001-1 Interest Period" means a period commencing on and
including a Payment Date and ending on and including the day preceding
the next succeeding Payment Date; provided, however, that the initial
Series 2001-1 Interest Period shall commence on and include the Series
2001-1 Closing Date and end on and include September 6, 2001.
"Series 2001-1 Invested Amount" means, as of any date of
determination, the sum of the Class A-1 Invested Amount and the Class A-2
Invested Amount as of such date.
"Series 2001-1 Invested Percentage" means, with respect to any
Business Day (i) during the Series 2001-1 Revolving Period, the
percentage equivalent (which percentage shall never exceed 100%) of a
fraction the numerator of which shall be equal to the Series 2001-1
Allocated Adjusted Aggregate Unit Balance as of the end of the
immediately preceding Business Day and the denominator of which is the
sum of the numerators used to determine invested percentages for
allocations for all Series of Investor Notes (and all classes of such
Series of Investor Notes), including all Series of Investor Notes that
have been paid in full but as to which the Amortization Period has not
ended, as of the end of such immediately preceding Business Day or (ii)
during the Series 2001-1 Amortization Period, the percentage equivalent
(which percentage shall never exceed 100%) of a fraction the numerator of
which shall be equal to the Series 2001-1 Allocated Adjusted Aggregate
Unit Balance as of the end of the Series 2001-1 Revolving Period, and the
denominator of which is the sum of the numerators used to determine
invested percentages for allocations for all Series of Investor Notes
(and all classes of such Series of Investor Notes), including all Series
of Investor Notes that have been paid in full but as to which the
Amortization Period has not ended, as of the end of the immediately
preceding Business Day.
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"Series 2001-1 Investor Noteholder" means, collectively, the Class
A-1 Investor Noteholders and the Class A-2 Investor Noteholders.
"Series 2001-1 Investor Note Owner" means, with respect to a Series
2001-1 Global Note, the Person who is the beneficial owner of an interest
in such Series 2001-1 Global Note, as reflected on the books of DTC, or
on the books of a Person maintaining an account with DTC (directly as a
Clearing Agency Participant or as an indirect participant, in each case
in accordance with the rules of DTC).
"Series 2001-1 Investor Notes" means, collectively, the Class A-1
Investor Notes and the Class A-2 Investor Notes.
"Series 2001-1 Junior Preferred Membership Interests" means the
Junior Preferred Membership Interests relating to the Series 2001-1
Investor Notes, if any, issued by the Issuer pursuant to the LLC
Agreement.
"Series 2001-1 Lease Rate Cap" means one or more interest rate caps,
substantially in the form of Exhibit C, from a Series 2001-1 Eligible
Counterparty.
"Series 2001-1 Liquid Credit Enhancement Deficiency" means, on any
date of determination, the amount by which the Series 2001-1 Reserve
Account Amount is less than the Series 2001-1 Required Reserve Account
Amount.
"Series 2001-1 Minimum Yield Rate" means, for any Settlement Date, a
rate per annum equal to the sum of (i) the Series 2001-1 Weighted Average
Cost of Funds for such Settlement Date, (ii) 0.225% and (iii) 0.48%.
"Series 2001-1 Monthly Interest" means, with respect to any Series
2001-1 Interest Period, the sum of Class A-1 Monthly Interest and Class
A-2 Monthly Interest for such Series 2001-1 Interest Period.
"Series 2001-1 Monthly Residual Value Gain" means, for any
Settlement Date, an amount equal to the product of (a) the average daily
Series 2001-1 Invested Percentage during the immediately preceding
Monthly Period and (b) the Monthly Residual Value Gain for such
Settlement Date.
"Series 2001-1 Note Rate" means the Class A-1 Note Rate or the Class
A-2 Note Rate, as the context may require.
"Series 2001-1 Note Termination Date" means the date on which the
Series 2001-1 Investor Notes are fully paid.
"Series 2001-1 Preferred Member Distribution Account" means the
account established in respect of the Series 2001-1 Preferred Membership
Interests pursuant to the LLC Agreement.
"Series 2001-1 Preferred Members" means the registered holders of
the Series 2001-1 Preferred Membership Interests.
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"Series 2001-1 Preferred Membership Interest Purchase Agreement"
means, collectively, one or more purchase agreements among the Issuer,
one or more purchasers of the Series 2001-1 Senior Preferred Membership
Interests thereunder, the funding agents of such purchasers, one or more
banks or other financial institutions providing liquidity funding to such
purchasers and the Administrator, as the same may from time to time be
amended, supplemented or otherwise modified in accordance with its terms,
and one or more purchase agreements relating to the Series 2001-1 Junior
Preferred Membership Interests among the Issuer, one or more purchasers
of the Series 2001-1 Junior Preferred Membership Interests and the
Administrator, as the same may from time to time be amended, supplemented
or otherwise modified in accordance with its terms.
"Series 2001-1 Preferred Membership Interests" means the Series
2001-1 Senior Preferred Membership Interests and the Series 2001-1 Junior
Preferred Membership Interests, if any.
"Series 2001-1 Principal Collection Subaccount" is defined in
Section 5A.1(a).
"Series 2001-1 Principal Payment Amount" means, for any Settlement
Date, an amount equal to the product of (a) the average daily Series
2001-1 Invested Percentage during the immediately preceding Monthly
Period and (b) the Principal Payment Amount for such Settlement Date.
"Series 2001-1 Required Asset Amount" means, as of any date of
determination, the sum of the Series 2001-1 Invested Amount and the
Series 2001-1 Required Overcollateralization Amount as of such date.
"Series 2001-1 Required Enhancement Amount" means, on any date, the
Required Percentage on such date of the Series 2001-1 Initial Invested
Amount plus; if the Three-Month Average Residual Value Loss Ratio with
respect to the most recent Settlement Date exceeded 12.50%, an amount
equal to the product of (a) the Series 2001-1 Invested Percentage as the
last day of the Monthly Period immediately preceding such Settlement Date
and (b) 90% of the amount by which the Aggregate Residual Value Amount
exceeded the Excess Residual Value Amount, in each case, as of that date;
provided, however, that, after the declaration or occurrence of an
Amortization Event, the Series 2001-1 Required Enhancement Amount shall
equal the Series 2001-1 Required Enhancement Amount on the date of the
declaration or occurrence of such Amortization Event.
"Series 2001-1 Required Investor Noteholders" means Series 2001-1
Investor Noteholders holding more than 50% of the Series 2001-1 Invested
Amount (excluding any Series 2001-1 Investor Notes held by the Issuer or
any Affiliate of the Issuer).
"Series 2001-1 Required Lease Rate Cap" means one or more Series
2001-1 Lease Rate Caps having, in the aggregate, a notional amount on
each Payment Date equal to the lesser of (x) the average daily Series
2001-1 Invested Percentage during the Monthly Period immediately
preceding such Payment Date of the aggregate Lease Balance of all Fixed
Rate Leases allocated to the Lease SUBI Portfolio as of the last day
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of the immediately preceding Monthly Period that were not Fixed Rate
Leases when initially allocated to the Lease SUBI Portfolio or on the
Series 2001-1 Closing Date, plus, in the case of all such Fixed Rate
Leases that are Closed-End Leases, the aggregate Stated Residual Values
of the related Leased Vehicles and (y) the sum of the Series 2001-1
Invested Amount and the aggregate stated liquidation preference of the
Series 2001-1 Preferred Membership Interests on such Payment Date and an
effective strike rate based on the eurodollar rate set forth therein in
effect on the dates set forth therein at the most equal to the weighted
average fixed rate of interest on such Fixed Rate Leases minus 0.65% per
annum.
"Series 2001-1 Required Overcollateralization Amount" means, on any
date of determination during an Accrual Period, the amount by which the
Series 2001-1 Required Enhancement Amount exceeds the sum of (a) the
Series 2001-1 Reserve Account Amount and (b) the amount on deposit in the
Series 2001-1 Principal Collection Subaccount on such date (excluding any
amounts deposited therein pursuant to Section 5A.2(d) during the Monthly
Period commencing after the first day of such Accrual Period).
"Series 2001-1 Required Percentage" means, on any date of
determination, 15.9425% unless:
(a) for the most recent Settlement Date all of the following were
true:
(i) the Three Month Average Charge-Off Ratio was 0.50 % or
less;
(ii) the Twelve Month Average Charge-Off Ratio was 0.25% or
less;
(iii) the Three Month Average Residual Value Loss Ratio was
10.00% or less;
(iv) the Twelve Month Average Residual Value Loss Ratio was
5.00% or less;
(v) the Three Month Average Paid-In Advance Loss Ratio was
1.00% or less;
(vi) the Twelve Month Average Paid-In Advance Loss Ratio was
0.50% or less; and
(vii) the Three Month Average Delinquency Ratio was 4.50% or
less;
in which case, the Series 2001-1 Required Percentage on such date
will equal 14.9425% or
(b) for the most recent Settlement Date any one of the following was
true:
(i) the Three Month Average Charge-Off Ratio exceeded 0.75%;
(ii) the Twelve Month Average Charge-Off Ratio exceeded 0.50%;
(iii) the Three Month Average Residual Value Loss Ratio
exceeded 12.50%;
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(iv) the Twelve Month Average Residual Value Loss Ratio
exceeded 10.00%;
(v) the Twelve Month Average Paid-In Advance Loss Ratio
exceeded 0.75%; or
(vi) the Three Month Average Delinquency Ratio exceeded 6.00%;
in which case, the Series 2001-1 Required Percentage on such date
will equal 16.9425%.
"Series 2001-1 Required Reserve Account Amount" means an amount
equal to 2.2538% of the Series 2001-1 Initial Invested Amount.
"Series 2001-1 Required Yield Supplement Amount" means, on any
Settlement Date, the excess, if any, of (a) the Series 2001-1 Yield
Shortfall Amount for such Settlement Date over (b) 70% of the product of
(x) the Series 2001-1 Invested Percentage on such Settlement Date and (y)
the Class X 1999-1B Invested Amount as of such Settlement Date (after
giving effect to any increase thereof on such Settlement Date); provided,
however that upon the occurrence of a Receivable Purchase Termination
Event, the Series 2001-1 Required Yield Supplement Amount on any
Settlement Date will equal the Series 2001-1 Yield Shortfall Amount for
such Settlement Date.
"Series 2001-1 Reserve Account" is defined in Section 5A.8(a).
"Series 2001-1 Reserve Account Amount" means, on any date of
determination, the amount on deposit in the Series 2001-1 Reserve Account
and available for withdrawal therefrom.
"Series 2001-1 Reserve Account Surplus" means, on any date of
determination, the amount, if any, by which the Series 2001-1 Reserve
Account Amount exceeds the Series 2001-1 Required Reserve Account Amount.
"Series 2001-1 Revolving Period" means the period from and including
the Series 2001-1 Closing Date to but excluding the commencement of the
Series 2001-1 Amortization Period.
"Series 2001-1 Senior Preferred Membership Interests" means each
series of Senior Preferred Membership Interests relating to the Series
2001-1 Investor Notes issued by the Issuer pursuant to the LLC Agreement.
"Series 2001-1 Supplemental Servicing Fee" is defined in Section
5.1.
"Series 2001-1 Servicing Fee Percentage" is defined in Section 5.1.
"Series 2001-1 Settlement Collection Subaccount" is defined in
Section 5A.1(a).
"Series 2001-1 Subaccounts" is defined in Section 5A.1(a).
"Series 2001-1 Weighted Average Cost of Funds" means, for any
Settlement Date, the product of (a) the quotient of the sum of (i) the
aggregate amount of interest
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payable on the Series 2001-1 Investor Notes on such Settlement Date and
(ii) the aggregate amount of dividends payable on the Series 2001-1
Preferred Membership Interests on such Settlement Date, divided by the
sum of (i) the Series 2001-1 Invested Amount as of the first day of the
immediately preceding Series 2001-1 Interest Period and (ii) the
aggregate stated liquidation preference of the Series 2001-1 Preferred
Membership Interests as of such day and (b) a fraction, the numerator of
which is 360 and the denominator of which is the number of days in the
Series 2001-1 Interest Period ending on such Settlement Date.
"Series 2001-1 Weighted Average Yield Shortfall" means, for any
Settlement Date, the excess, if any, of (a) the Series 2001-1 Minimum
Yield Rate for such Settlement Date over (b) the Series 2001-1 Weighted
Average Yield Shortfall Lease Yield for such Settlement Date.
"Series 2001-1 Weighted Average Yield Shortfall Lease Yield" means,
for any Settlement Date, the quotient of the sum of the product with
respect to each Series 2001-1 Yield Shortfall Lease of (a) the actual or
implicit finance charge rate applicable to such Series 2001-1 Yield
Shortfall Lease and (b) the Net Book Value of the Leased Vehicle subject
to such Series 2001-1 Yield Shortfall Lease as of the last day of the
immediately preceding Monthly Period divided by the aggregate Net Book
Value of the Leased Vehicles subject to all of the Series 2001-1 Yield
Shortfall Leases as of the last day of the immediately preceding Monthly
Period.
"Series 2001-1 Weighted Average Yield Shortfall Life" means, for any
Settlement Date, 50% of the weighted (on the basis of Net Book Value of
the related Leased Vehicle) average Assumed Lease Term of the Series
2001-1 Yield Shortfall Leases, assuming that all scheduled lease payments
are made thereon when scheduled and that the Obligors thereunder do not
elect to convert such Series 2001-1 Yield Shortfall Leases to Fixed Rate
Leases, as of the last day of the immediately preceding Monthly Period.
"Series 2001-1 Yield Shortfall Amount" means, for any Settlement
Date, (i) if the Series 2001-1 Hypothetical Yield Shortfall Amount for
such Settlement Date is less than 70% of the product of the Series 2001-1
Invested Percentage and the Class X 1999-1B Invested Amount as of such
Settlement Date (after giving effect to any increase thereof on such
Settlement Date), an amount equal to the Series 2001-1 Hypothetical Yield
Shortfall Amount and (ii) otherwise, an amount equal to the product of
(x) the Series 2001-1 Weighted Average Yield Shortfall for such
Settlement Date, (y) the Series 2001-1 Invested Percentage on such
Settlement Date of the aggregate Lease Balance of all Series 2001-1 Yield
Shortfall Leases as of the last day of the immediately preceding Monthly
Period and (z) the Series 2001-1 Weighted Average Yield Shortfall Life
for such Settlement Date.
"Series 2001-1 Yield Shortfall Lease" means, as of any Settlement
Date, each Unit Lease that is a Floating Rate Lease with an actual or
implicit finance charge rate of less than the Series 2001-1 Minimum Yield
Rate as of the last day of the immediately preceding Monthly Period.
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"Series 2001-1 Yield Supplement Account" is defined in Section
5A.9(a).
"Series 2001-1 Yield Supplement Account Amount" means, on any date
of determination, the amount on deposit in the Series 2001-1 Yield
Supplement Account and available for withdrawal therefrom.
"Series 2001-1 Yield Supplement Account Surplus" means, on any date
of determination, the amount, if any, by which the Series 2001-1 Yield
Supplement Account Amount exceeds the Series 2001-1 Required Yield
Supplement Amount.
"Series 2001-1 Yield Supplement Deficiency" means, on any date of
determination, the amount by which the Series 2001-1 Yield Supplement
Account Amount is less than the Series 2001-1 Required Yield Supplement
Amount.
"Telerate Page 3750" has the meaning set forth in the International
Swaps Derivatives Association, Inc. 1991 Interest Rate and Currency
Exchange Definitions.
"Total Cash Available" means, for any Settlement Date, the excess,
if any, of (a) the sum of (i) the aggregate amount of Collections
allocated to the Series 2001-1 General Collection Subaccount pursuant to
Section 5A.2(a) during the immediately preceding Monthly Period, (ii) an
amount equal to the product of the average daily Series 2001-1 Invested
Percentage during such Monthly Period and the amount of the Unit
Repurchase Payments paid by the Servicer and/or SPV on such Settlement
Date, (iii) an amount equal to the product of the average daily Series
2001-1 Invested Percentage during such Monthly Period and the amount of
the Monthly Servicer Advance made by the Servicer on such Settlement
Date, (iv) an amount equal to the product of the average daily Series
2001-1 Invested Percentage during such Monthly Period and the amount
withdrawn from the Gain on Sale Account pursuant to Section 5.2(e) of the
Base Indenture on the Transfer Date immediately preceding such Settlement
Date and (v) the investment income on amounts on deposit in the Series
2001-1 Principal Collection Subaccount and the Series 2001-1 General
Collection Subaccount transferred to the Series 2001-1 Settlement
Collection Subaccount on such Settlement Date pursuant to Section 5A.1(b)
over (b) the amount withdrawn from the Series 2001-1 General Collection
Subaccount pursuant to Section 5A.2(f) during the period commencing on
the Period End Date immediately preceding such Settlement Date to but
excluding such Settlement Date.
ARTICLE II
ARTICLE 5 OF THE BASE INDENTURE
Sections 5.1 through 5.4 of the Base Indenture and each other
Section of Article 5 of the Indenture relating to another Series shall read in
their entirety as provided in the Base Indenture or any applicable Indenture
Supplement. Article 5 of the Indenture (except for Sections 5.1 through 5.4
thereof and any portion thereof relating to another Series) shall read in its
entirety as follows and shall be exclusively applicable to the Series 2001-1
Investor Notes:
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Section 5A.1 Establishment of Series 2001-1 Subaccounts.
(a) The Indenture Trustee shall establish and maintain in the name
of the Indenture Trustee for the benefit of the Series 2001-1 Investor
Noteholders (i) a subaccount of the Collection Account (the "Series 2001-1
Collection Subaccount"); and (ii) three subaccounts of the Series 2001-1
Collection Subaccount: (1) the Series 2001-1 General Collection Subaccount,
(2) the Series 2001-1 Principal Collection Subaccount and (3) the Series
2001-1 Settlement Collection Subaccount (respectively, the "Series 2001-1
General Collection Subaccount," the "Series 2001-1 Principal Collection
Subaccount" and the "Series 2001-1 Settlement Collection Subaccount"); the
accounts established pursuant to this Section 5A.1(a), collectively, the
"Series 2001-1 Subaccounts"), each Series 2001-1 Subaccount to bear a
designation indicating that the funds deposited therein are held for the
benefit of the Series 2001-1 Investor Noteholders. The Indenture Trustee shall
possess all right, title and interest in all moneys, instruments, securities
and other property on deposit from time to time in the Series 2001-1
Subaccounts and the proceeds thereof for the benefit of the Series 2001-1
Investor Noteholders. The Series 2001-1 Subaccounts shall be under the sole
dominion and control of the Indenture Trustee for the benefit of the Series
2001-1 Investor Noteholders.
(b) The Issuer shall instruct the institution maintaining the
Collection Account in writing to invest funds on deposit in the Series 2001-1
Subaccounts at all times in Permitted Investments selected by the Issuer (by
standing instructions or otherwise); provided, however, that funds on deposit
in a Series 2001-1 Subaccounts may be invested together with funds held in
other subaccounts of the Collection Account. Amounts on deposit and available
for investment in the Series 2001-1 General Collection Subaccount shall be
invested by the Indenture Trustee at the written direction of the Issuer in
Permitted Investments that mature, or that are payable or redeemable upon
demand of the holder thereof, on or prior to the Business Day immediately
preceding the next Payment Date. Amounts on deposit and available for
investment in the Series 2001-1 Principal Collection Subaccount shall be
invested by the Indenture Trustee at the written direction of the Issuer in
Permitted Investments that mature, or that are payable or redeemable upon
demand of the holder thereof, (i) in the case of any such investment made
during the Series 2001-1 Revolving Period, on or prior to the next Business
Day and (ii) in the case of any such investment made on any day during the
Series 2001-1 Amortization Period, on or prior to the Business Day immediately
preceding the next Payment Date. On each Settlement Date, all interest and
other investment earnings (net of losses and investment expenses) on funds
deposited in the Series 2001-1 Principal Collection Subaccount and the Series
2001-1 General Collection Subaccount shall be deposited in the Series 2001-1
Settlement Collection Subaccount. The Issuer shall not direct the Indenture
Trustee to dispose of (or permit the disposal of) any Permitted Investments
prior to the maturity thereof to the extent such disposal would result in a
loss of principal of such Permitted Investment. In the absence of written
direction as provided hereunder, all funds on deposit in the Collection
Account shall remain uninvested.
Section 5A.2 Allocations with Respect to the Series 2001-1 Investor
Notes.
(a) Prior to 1:00 P.M., New York City time, on each Deposit Date,
the Administrator shall direct the Indenture Trustee in writing to allocate to
the Series 2001-1 Investor Noteholders and deposit in the Series 2001-1
General Collection Subaccount an amount equal to the product of the Series
2001-1 Invested Percentage on such Deposit Date and the Collections deposited
into the Collection Account on such Deposit Date.
14
(b) On the Series 2001-1 Closing Date, the Indenture Trustee shall
(i) deposit in the Series 2001-1 Settlement Collection Subaccount $_________
from the net proceeds from the sale of the Series 2001-1 Investor Notes and
(ii) deposit the remainder of the net proceeds from the sale of the Series
2001-1 Investor Notes in the Series 2001-1 Principal Collection Subaccount.
(c) On each Determination Date, the Administrator shall direct the
Indenture Trustee in writing to allocate to the Series 2001-1 Investor
Noteholders and deposit in the Series 2001-1 Settlement Collection Subaccount
on the immediately succeeding Transfer Date amounts withdrawn from the Gain on
Sale Account on such Transfer Date, in an amount equal to the product of the
average daily Series 2001-1 Invested Percentage during the immediately
preceding Monthly Period and the amount withdrawn from the Gain on Sale
Account pursuant to Section 5.2(e) of the Base Indenture on such Transfer
Date.
(d) On each Determination Date, the Administrator shall direct the
Indenture Trustee in writing to allocate to the Series 2001-1 Investor
Noteholders and deposit in the Series 2001-1 Settlement Collection Subaccount
on the immediately succeeding Settlement Date the following amounts:
(i) any Unit Repurchase Payments made by the Servicer and/or SPV, in
an amount equal to the product of the average daily Series 2001-1
Invested Percentage during the immediately preceding Monthly Period and
the amount of such Unit Repurchase Payments;
(ii) the Monthly Servicer Advance made by the Servicer, in an amount
equal to the product of the average daily Series 2001-1 Invested
Percentage during the immediately preceding Monthly Period and the amount
of such Monthly Servicer Advance;
(iii) payments made under the Lease Rate Caps maintained by the
Issuer pursuant to Sections 5A.11(a) and (b), in an amount equal to the
product of the average daily Series 2001-1 Invested Percentage during the
immediately preceding Monthly Period and the amount of such payments; and
(iv) all payments made to the Indenture Trustee under the Series
2001-1 Lease Rate Cap.
(e) During the Series 2001-1 Revolving Period, the Administrator may
direct the Indenture Trustee in writing on any Business Day to withdraw
amounts on deposit in the Series 2001-1 Principal Collection Subaccount for
either of the following purposes:
(i) if such Business Day is an Additional Closing Date, to pay all
or a portion of the Transferred Asset Payment due on such Additional
Closing Date pursuant to the Transfer Agreement; or
(ii) to reduce the Invested Amount of any Series of Investor Notes.
15
(f) Prior to the occurrence of a Potential Amortization Event or an
Amortization Event, on any Business Day during the period commencing on a
Period End Date to but excluding the next succeeding Settlement Date on which
the Administrator is able to determine the amounts to be distributed from the
Series 2001-1 Settlement Collection Subaccount pursuant to paragraphs (i)
through (xii) of Section 5A.4(c) on such Settlement Date and any amounts owing
in respect of the Series 2001-1 Preferred Membership Interests under the
Series 2001-1 Preferred Membership Interest Purchase Agreement on such
Settlement Date, the Administrator may direct the Indenture Trustee in writing
to withdraw from the Series 2001-1 General Collection Subaccount and pay to
the Issuer the Series 2001-1 Available Excess Collections Amount for such
Business Day.
Section 5A.3 Determination of Interest.
(a) Chase is hereby appointed Calculation Agent for the purpose of
determining the Series 2001-1 Note Rates for each Series 2001-1 Interest
Period. On each LIBOR Determination Date, the Calculation Agent shall
determine the Series 2001-1 Note Rate for each Class of Series 2001-1 Investor
Notes for the next succeeding Series 2001-1 Interest Period and deliver notice
of such Series 2001-1 Note Rates to the Indenture Trustee. On each LIBOR
Determination Date, the Indenture Trustee shall deliver to the Administrator
notice of the Series 2001-1 Note Rate for each Class of Series 2001-1 Investor
Notes for the next succeeding Series 2001-1 Interest Period.
(b) Until the Administrator shall give the Indenture Trustee written
notice that neither Class of the Series 2001-1 Investor Notes is listed on the
Luxembourg Stock Exchange, the Indenture Trustee shall, or shall instruct the
Calculation Agent to, cause (i) the Series 2001-1 Note Rate applicable to each
Class of the Series 2001-1 Investor Notes for the next succeeding Series
2001-1 Interest Period, the number of days in such Series 2001-1 Interest
Period, the Payment Date for such Series 2001-1 Interest Period and the amount
of interest payable on each Class of Series 2001-1 Investor Notes on such
Payment Date to be (A) communicated to DTC, the Paying Agent in Luxembourg and
the Luxembourg Stock Exchange no later than the Business Day immediately
following each LIBOR Determination Date and (B) published in the Authorized
Newspaper as soon as possible after its determination.
(c) On each Determination Date, the Administrator shall determine
the excess, if any (the "Interest Shortfall"), of (i) the sum of (A) the
Series 2001-1 Monthly Interest for the Series 2001-1 Interest Period ending on
the next succeeding Payment Date and (B) the amount of any unpaid Interest
Shortfall, as of the preceding Payment Date (together with any Additional
Interest on such Interest Shortfall) over (ii) the amount which will be
available to pay such amount in accordance with Section 5A.4(c) on such
Payment Date. If the Interest Shortfall with respect to any Payment Date is
greater than zero, payments of interest to the Series 2001-1 Investor
Noteholders will be reduced on a pro rata basis by the amount of the Interest
Shortfall. The portion of the Interest Shortfall allocable to each Class of
Series 2001-1 Investor Notes shall be referred to as the "Class A-1 Interest
Shortfall Amount" and the "Class A-2 Interest Shortfall Amount", respectively.
An additional amount of interest ("Additional Interest") shall accrue on the
Class A-1 Interest Shortfall Amount and the Class A-2 Interest Shortfall
Amount for each Series 2001-1 Interest Period at the applicable Series 2001-1
Note Rate for such Series 2001-1 Interest Period. Until the Administrator
shall give the Indenture Trustee written notice that
16
neither Class of the Series 2001-1 Investor Notes is listed on the Luxembourg
Stock Exchange, the Indenture Trustee shall, or shall instruct the Calculation
Agent to, notify the Luxembourg Stock Exchange if, based solely on the
information contained in the Monthly Settlement Statement with respect to the
Series 2001-1 Investor Notes, the amount of interest to be paid on any Class
of the Series 2001-1 Investor Notes on any Payment Date is less than the
amount payable thereon on such Payment Date, the amount of such deficit and
the amount of interest that will accrue on such deficit during the next
succeeding Series 2001-1 Interest Period by the Business Day prior to such
Payment Date.
(d) All communications by or on behalf of the Indenture Trustee to
the Luxembourg Stock Exchange pursuant to this Section 5A.3 shall be sent by
facsimile to [352 47 793 6238, attention: Xxxx Xxxxxxx.]
Section 5A.4 Monthly Application of Collections.
(a) On each Settlement Date, the Administrator shall direct the
Indenture Trustee in writing to withdraw from the Series 2001-1 General
Collection Subaccount and allocate to the Series 2001-1 Settlement Collection
Subaccount an amount equal to Total Cash Available for such Settlement Date
(less an amount equal to the investment income from the Series 2001-1 General
Collection Subaccount and the Series 2001-1 Principal Collection Subaccount
transferred to the Series 2001-1 Settlement Collection Subaccount pursuant to
Section 5A.1(b)).
(b) (i) If the Administrator determines that the aggregate amount
distributable from the Series 2001-1 Settlement Collection Subaccount pursuant
to paragraphs (i) through (ix) of Section 5A.4(c) on any Payment Date exceeds
the Total Cash Available for such Payment Date (the "Deficiency"), the
Administrator shall notify the Indenture Trustee thereof in writing at or
before 10:00 a.m., New York City time, on the Business Day immediately
preceding such Payment Date, and the Indenture Trustee shall, in accordance
with such notice, by 11:00 a.m., New York City time, on such Payment Date,
withdraw from the Series 2001-1 Reserve Account and deposit in the Series
2001-1 Settlement Collection Subaccount an amount equal to the least of (x)
such Deficiency, (y) the product of the average daily Series 2001-1 Invested
Percentage during the immediately preceding Monthly Period and Aggregate Net
Lease Losses for such Monthly Period and (z) the Series 2001-1 Reserve Account
Amount and, to the extent that such amount is less than the Deficiency,
withdraw from the Series 2001-1 Yield Supplement Account and deposit in the
Series 2001-1 Settlement Collection Subaccount an amount equal to the lesser
of the amount of such insufficiency and the Series 2001-1 Yield Supplement
Account Amount. If the Deficiency with respect to any Payment Date exceeds the
amounts to be withdrawn from the Series 2001-1 Reserve Account and the Series
2001-1 Yield Supplement Account pursuant to the immediately preceding
sentence, the Administrator shall instruct the Indenture Trustee in writing at
or before 10:00 a.m., New York City time, on the Business Day immediately
preceding such Payment Date, and the Indenture Trustee shall, in accordance
with such notice, by 11:00 a.m., New York City time, on such Payment Date,
withdraw from the Series 2001-1 Reserve Account and deposit in the Series
2001-1 Settlement Collection Subaccount an amount equal to the lesser of (x)
the remaining portion of the Deficiency and (y) the Series 2001-1 Reserve
Account Amount (after giving effect to the withdrawal described in the
immediately preceding sentence).
17
(ii) If the Administrator determines that (A) the amount to be
deposited in the Series 2001-1 Distribution Account in accordance with Section
5A.4(c)(ix) and paid to the Class A-1 Investor Noteholders pursuant to Section
5A.6 on the Class A-1 Final Maturity Date is less than the Class A-1 Invested
Amount or (B) the amount to be deposited in the Series 2001-1 Distribution
Account in accordance with Section 5A.4(c)(ix) and paid to the Class A-2
Investor Noteholders pursuant to Section 5A.6 on the Class A-2 Final Maturity
Date is less than the Class A-2 Invested Amount, the Administrator shall
notify the Indenture Trustee thereof in writing at or before 10:00 a.m., New
York City time, on the Business Day immediately preceding such Final Maturity
Date, and the Indenture Trustee shall, in accordance with such notice, by
11:00 a.m., New York City time, on such Final Maturity Date, withdraw from the
Series 2001-1 Reserve Account and deposit in the Series 2001-1 Distribution
Account an amount equal to the lesser of such insufficiency and the Series
2001-1 Reserve Account Amount (after giving effect to any withdrawal therefrom
pursuant to Section 5A.4(b)(i) on such Final Maturity Date). In addition, if
the Series 2001-1 Reserve Account Amount is less than such insufficiency on
the Class A-2 Final Maturity Date, the Administrator shall notify the
Indenture Trustee thereof in writing at or before 10:00 a.m., New York City
time, on the Business Day immediately preceding the Class A-2 Final Maturity
Date, and the Indenture Trustee shall, in accordance with such notice, by
11:00 a.m., New York City time, on the Class A-2 Final Maturity Date, withdraw
from the Series 2001-1 Yield Supplement Account and deposit in the Series
2001-1 Distribution Account an amount equal to the lesser of such remaining
insufficiency and the Series 2001-1 Yield Supplement Account Amount (after
giving effect to any withdrawal therefrom pursuant to Section 5A.4(b)(i) on
the Class A-2 Final Maturity Date).
(c) On each Payment Date, based solely on the information contained
in the Monthly Settlement Statement with respect to Series 2001-1 Investor
Notes, the Indenture Trustee shall apply the following amounts allocated to,
or deposited in, the Series 2001-1 Settlement Collection Subaccount on such
Payment Date in the following order of priority:
(i) to SPV, an amount equal to the Series 2001-1 Excess Fleet
Receivable Amount, if any, for such Payment Date;
(ii) to the Gain On Sale Account, an amount equal to the Series
2001-1 Monthly Residual Value Gain, if any, for such Payment Date;
(iii) to the Servicer, an amount equal to the product of the Monthly
Servicer Advance Reimbursement Amount for such Payment Date and the
average daily Series 2001-1 Invested Percentage during the immediately
preceding Monthly Period;
(iv) if VMS is not the Servicer, to the Servicer, an amount equal to
the Series 2001-1 Basic Servicing Fee for the Series 2001-1 Interest
Period ending on such Payment Date plus, on the first Payment Date
following the transfer of the servicing from VMS to a successor Servicer
pursuant to Section 9.1 of the Series 1999-1 SUBI Servicing Supplement,
to the extent not reimbursed by VMS, the reasonable costs and expenses of
the successor Servicer incurred in connection with the transfer of the
servicing, in an amount up to $250,000;
18
(v) to the Series 2001-1 Distribution Account, an amount equal to
the Series 2001-1 Monthly Interest payable on such Payment Date plus the
amount of any unpaid Interest Shortfall, as of the preceding Payment
Date, together with any Additional Interest on such Interest Shortfall
(such amount, the "Monthly Interest Payment");
(vi) if VMS is the Servicer, to the Servicer, an amount equal to the
Series 2001-1 Basic Servicing Fee for the Series 2001-1 Interest Period
ending on such Payment Date;
(vii) to the Administrator, an amount equal to the Series 2001-1
Administrator Fee for the Series 2001-1 Interest Period ending on such
Payment Date;
(viii) other than during a Lockout Period, to the Series 2001-1
Preferred Member Distribution Account, an amount equal to the Dividend
Amount for such Payment Date;
(ix) (A) on any Payment Date immediately succeeding a Monthly Period
falling in the Series 2001-1 Revolving Period, to the Series 2001-1
Principal Collection Subaccount, an amount equal to the Series 2001-1
Allocated Asset Amount Deficiency, if any, on such Payment Date, (B) on
the earlier of (x) the second Payment Date following the January 2003
Period End Date or (y) the first Payment Date following the occurrence of
an Amortization Event, to the Series 2001-1 Distribution Account, an
amount equal to the lesser of the Series 2001-1 Principal Payment Amount
for such Payment Date and the Series 2001-1 Invested Amount on such
Payment Date and (C) on any Payment Date on and after the Series 2001-1
Note Termination Date, to the Series 2001-1 Preferred Member Distribution
Account, an amount equal to the Series 2001-1 Principal Payment Amount
for such Payment Date (or, on the Series 2001-1 Note Termination Date,
the portion thereof not deposited into the Series 2001-1 Distribution
Account); provided, however that on or after the Series 2001-1 Note
Termination Date during a Lockout Period, the Series 2001-1 Principal
Payment Amount for such Payment Date (or, on the Series 2001-1 Note
Termination Date, the portion thereof not deposited into the Series
2001-1 Distribution Account) shall be applied by the Indenture Trustee in
accordance with Section 5.4(d) of the Base Indenture;
(x) to the Series 2001-1 Reserve Account, to the extent that a
Series 2001-1 Liquid Credit Enhancement Deficiency exists or, on any
Payment Date immediately succeeding a Monthly Period falling in the
Series 2001-1 Amortization Period, to the extent that a Series 2001-1
Allocated Asset Amount Deficiency exists, an amount equal to the greater
of such deficiencies;
(xi) to the Series 2001-1 Yield Supplement Account, to the extent
that a Series 2001-1 Yield Supplement Deficiency exists (or, will exist
after giving effect to any reduction in the Class X 1999-1B Invested
Amount on such Payment Date), an amount equal to such deficiency;
(xii) if VMS is not the Servicer, to the Servicer, an amount equal
to any Series 2001-1 Supplemental Servicing Fee for the Series 2001-1
Interest Period ending on such Payment Date; and
19
(xiii) to the Series 2001-1 Preferred Member Distribution Account,
an amount equal to the balance remaining in the Series 2001-1 Settlement
Collection Subaccount.
Section 5A.5 Payment of Monthly Interest Payment.
On each Payment Date, based solely on the information
contained in the Monthly Settlement Statement with respect to the Series
2001-1 Investor Notes, the Indenture Trustee shall, in accordance with Section
6.1 of the Base Indenture, pay to the Series 2001-1 Investor Noteholders, from
the Series 2001-1 Distribution Account the Monthly Interest Payment to the
extent of the amount deposited in the Series 2001-1 Distribution Account for
the payment of interest pursuant to Section 5A.4(c)(v).
Section 5A.6 Payment of Principal.
(a) The principal amount of each Class of the Series 2001-1 Investor
Notes shall be due and payable on the Final Maturity Date with respect to such
Class.
(b) On each Payment Date on which a deposit is made to the Series
2001-1 Distribution Account pursuant to Section 5A.4(c)(ix) or an amount is
deposited in the Series 2001-1 Distribution Account pursuant to Section
5A.4(b)(ii), based solely on the information contained in the Monthly
Settlement Statement with respect to Series 2001-1 Investor Notes, the
Indenture Trustee shall, in accordance with Section 6.1 of the Base Indenture,
pay during the Series 2001-1 Amortization Period, pro rata to each Class A-1
Investor Noteholder from the Series 2001-1 Distribution Account the amount
deposited therein pursuant to Section 5A.4(c)(ix) and Section 5A.4(b)(ii) in
order to pay the Class A-1 Invested Amount, and thereafter pro rata to each
Class A-2 Investor Noteholder from the Series 2001-1 Distribution Account the
amount deposited therein pursuant to Section 5A.4(c)(ix) and Section
5A.4(b)(ii) in order to pay the Class A-2 Invested Amount; provided however
that on any Payment Date falling after the occurrence of an Amortization Event
resulting from the occurrence of an Event of Default described in Section
9.1(a), (b) or (f) of the Base Indenture the Indenture Trustee shall pay pro
rata to each Series 2001-1 Investor Noteholder from the Series 2001-1
Distribution Account the amounts deposited therein pursuant to Section
5A.4(c)(ix) and Section 5A.4(b)(ii) in order to pay the Class A-1 Invested
Amount and the Class A-2 Invested Amount.
(c) The Indenture Trustee shall notify the Person in whose name a
Series 2001-1 Investor Note is registered at the close of business on the
Record Date preceding the Payment Date on which the Issuer expects that the
final installment of principal of and interest on such Series 2001-1 Investor
Note will be paid. Such notice shall be made at the expense of the
Administrator and shall be mailed within three (3) Business Days of receipt of
a Monthly Settlement Statement indicating that such final payment will be made
and shall specify that such final installment will be payable only upon
presentation and surrender of such Series 2001-1 Investor Note and shall
specify the place where such Series 2001-1 Investor Note may be presented and
surrendered for payment of such installment. Notices in connection with
redemptions of Series 2001-1 Investor Notes shall be (i) transmitted by
facsimile to Series 2001-1 Investor Noteholders holding Global Notes and (ii)
sent by registered mailed to Series 2001-1 Investor Noteholders holding
Definitive Notes and shall specify that such final installment will be payable
only upon presentation and surrender of such Series 2001-1 Investor Note and
shall
20
specify the place where such Series 2001-1 Investor Note may be
presented and surrendered for payment of such installment.
Section 5A.7 The Administrator's Failure to Instruct the Indenture
Trustee to Make a Deposit or Payment.
When any payment or deposit hereunder or under any other Transaction
Document is required to be made by the Indenture Trustee at or prior to a
specified time, the Administrator shall deliver any applicable written
instructions with respect thereto reasonably in advance of such specified
time. If the Administrator fails to give notice or instructions to make any
payment from or deposit into the Collection Account or any subaccount thereof
required to be given by the Administrator, at the time specified herein or in
any other Transaction Document (after giving effect to applicable grace
periods), the Indenture Trustee shall make such payment or deposit into or
from the Collection Account or such subaccount without such notice or
instruction from the Administrator; provided that the Administrator, upon
request of the Indenture Trustee, promptly provides the Indenture Trustee with
all information necessary to allow the Indenture Trustee to make such a
payment or deposit in the event that the Indenture Trustee shall take or
refrain from taking action pursuant to this Section 5A.7, the Administrator
shall, by 5:00 p.m., New York City time, on any day the Indenture Trustee
makes a payment or deposit based on information or direction from the
Administrator, provide (i) written confirmation of any such direction and (ii)
written confirmation of all information used by the Administrator in giving
any such direction.
Section 5A.8 Series 2001-1 Reserve Account.
(a) The Indenture Trustee shall establish and maintain in the name
of the Indenture Trustee for the benefit of the Series 2001-1 Investor
Noteholders an account (the "Series 2001-1 Reserve Account"), bearing a
designation clearly indicating that the funds deposited therein are held for
the benefit of the Series 2001-1 Investor Noteholders. The Series 2001-1
Reserve Account shall be an Eligible Deposit Account; provided that, if at any
time such account is not an Eligible Deposit Account, then the Indenture
Trustee shall, within 30 days of obtaining knowledge of such reduction,
establish a new Series 2001-1 Reserve Account that is an Eligible Deposit
Account. If the Indenture Trustee establishes a new Series 2001-1 Reserve
Account, it shall transfer all cash and investments from the non-qualifying
Series 2001-1 Reserve Account into the new Series 2001-1 Reserve Account.
Initially, the Series 2001-1 Reserve Account will be established with The
Chase Manhattan Bank.
(b) The Issuer may instruct the institution maintaining the Series
2001-1 Reserve Account in writing to invest funds on deposit in the Series
2001-1 Reserve Account from time to time in Permitted Investments selected by
the Issuer (by standing instructions or otherwise); provided, however, that
any such investment shall mature not later than the Business Day prior to the
Payment Date following the date on which such funds were received. All such
Permitted Investments will be credited to the Series 2001-1 Reserve Account
and any such Permitted Investments that constitute (i) Physical Property (and
that is not either a United States Security Entitlement or a Security
Entitlement) shall be delivered to the Indenture Trustee in accordance with
paragraph (a) of the definition of "Delivery" and shall be held by the
Indenture Trustee pending maturity or disposition; (ii) United States Security
Entitlements or Security Entitlements
21
shall be Controlled by the Indenture Trustee pending maturity or disposition;
and (iii) Uncertificated Securities (and not United States Security
Entitlements) shall be delivered to the Indenture Trustee in accordance with
paragraph (b) of the definition of "Delivery" and shall be maintained by the
Indenture Trustee pending maturity or disposition. The Indenture Trustee
shall, at the direction and expense of the Administrator, take such additional
action as is required to maintain the Indenture Trustee's security interest in
the Permitted Investments credited to the Series 2001-1 Reserve Account. In
absence of written direction as provided hereunder, funds on deposit in the
Series 2001-1 Reserve Account shall remain uninvested.
(c) All interest and earnings (net of losses and investment
expenses) paid on funds on deposit in the Series 2001-1 Reserve Account shall
be deemed to be on deposit and available for distribution.
(d) If there is a Series 2001-1 Reserve Account Surplus on any
Settlement Date, the Administrator may notify the Indenture Trustee thereof in
writing and instruct the Indenture Trustee to withdraw from the Series 2001-1
Reserve Account and deposit in the Series 2001-1 Preferred Member Distribution
Account, and the Indenture Trustee shall withdraw from the Series 2001-1
Reserve Account and deposit in the Series 2001-1 Preferred Member Distribution
Account, so long as no Series 2001-1 Allocated Asset Amount Deficiency exists
or would result therefrom, an amount up to the lesser of (i) such Series
2001-1 Reserve Account Surplus on such Business Day and (ii) the Series 2001-1
Reserve Account Amount on such Business Day.
(e) Amounts will be withdrawn from the Series 2001-1 Reserve Account
in accordance with Section 5A.4(b).
(f) In order to secure and provide for the repayment and payment of
the Issuer Obligations with respect to the Series 2001-1 Investor Notes, the
Issuer hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Indenture Trustee, for the benefit of the
Series 2001-1 Investor Noteholders, all of the Issuer's right, title and
interest in and to the following (whether now or hereafter existing or
acquired): (i) the Series 2001-1 Reserve Account, including any security
entitlement thereto; (ii) all funds on deposit therein from time to time;
(iii) all certificates and instruments, if any, representing or evidencing any
or all of the Series 2001-1 Reserve Account or the funds on deposit therein
from time to time; (iv) all investments made at any time and from time to time
with monies in the Series 2001-1 Reserve Account, whether constituting
securities, instruments, general intangibles, investment property, financial
assets or other property; (v) all interest, dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for the Series 2001-1 Reserve Account, the funds
on deposit therein from time to time or the investments made with such funds;
and (vi) all proceeds of any and all of the foregoing, including, without
limitation, cash. The Indenture Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Series 2001-1
Reserve Account and in all proceeds thereof and shall be the only person
authorized to originate entitlement orders in respect of the Series 2001-1
Reserve Account. The Indenture Trustee and the Series 2001-1 Investor
Noteholders shall have no interest in any amounts withdrawn from the Series
2001-1 Reserve Account and deposited in the Series 2001-1 Preferred Member
Distribution Account.
22
(g) On the first Payment Date after the Series 2001-1 Note
Termination Date on which the sum of (a) the Series 2001-1 Reserve Account
Amount, (b) the Series 2001-1 Yield Supplement Account Amount and (c) the
amount available to be deposited in the Series 2001-1 Preferred Member
Distribution Account in accordance with Section 5A.4(c)(ix) is at least equal
to the aggregate stated liquidation preference of the Series 2001-1 Preferred
Membership Interests and on any Payment Date thereafter, the Indenture
Trustee, acting in accordance with the written instructions of the
Administrator shall withdraw from the Series 2001-1 Reserve Account all
amounts on deposit therein for deposit in the Series 2001-1 Preferred Member
Distribution Account.
Section 5A.9 Series 2001-1 Yield Supplement Account.
(a) The Indenture Trustee shall establish and maintain in the name
of the Indenture Trustee for the benefit of the Series 2001-1 Investor
Noteholders an account (the "Series 2001-1 Yield Supplement Account"), bearing
a designation clearly indicating that the funds deposited therein are held for
the benefit of the Series 2001-1 Investor Noteholders. The Series 2001-1 Yield
Supplement Account shall be an Eligible Deposit Account; provided that, if at
any time such account is not an Eligible Deposit Account, then the Indenture
Trustee shall, within 30 days of obtaining knowledge of such reduction,
establish a new Series 2001-1 Yield Supplement Account that is an Eligible
Deposit Account. If the Indenture Trustee establishes a new Series 2001-1
Yield Supplement Account, it shall transfer all cash and investments from the
non-qualifying Series 2001-1 Yield Supplement Account into the new Series
2001-1 Yield Supplement Account. Initially, the Series 2001-1 Yield Supplement
Account will be established with The Chase Manhattan Bank.
(b) The Issuer may instruct the institution maintaining the Series
2001-1 Yield Supplement Account in writing to invest funds on deposit in the
Series 2001-1 Yield Supplement Account from time to time in Permitted
Investments selected by the Issuer (by standing instructions or otherwise);
provided, however, that any such investment shall mature not later than the
Business Day prior to the Payment Date following the date on which such funds
were received. All such Permitted Investments will be credited to the Series
2001-1 Yield Supplement Account and any such Permitted Investments that
constitute (i) Physical Property (and that is not either a United States
Security Entitlement or a Security Entitlement) shall be delivered to the
Indenture Trustee in accordance with paragraph (a) of the definition of
"Delivery" and shall be held by the Indenture Trustee pending maturity or
disposition; (ii) United States Security Entitlements or Security Entitlements
shall be Controlled by the Indenture Trustee pending maturity or disposition;
and (iii) Uncertificated Securities (and not United States Security
Entitlements) shall be delivered to the Indenture Trustee in accordance with
paragraph (b) of the definition of "Delivery" and shall be maintained by the
Indenture Trustee pending maturity or disposition. The Indenture Trustee
shall, at the direction and expense of the Administrator, take such additional
action as is required to maintain the Indenture Trustee's security interest in
the Permitted Investments credited to the Series 2001-1 Yield Supplement
Account. In absence of written direction as provided hereunder, funds on
deposit in the Series 2001-1 Yield Supplement Account shall remain uninvested.
23
(c) All interest and earnings (net of losses and investment
expenses) paid on funds on deposit in the Series 2001-1 Yield Supplement
Account shall be deemed to be on deposit and available for distribution.
(d) If there is a Series 2001-1 Yield Supplement Account Surplus on
any Settlement Date, the Administrator may notify the Indenture Trustee
thereof in writing and request the Indenture Trustee to withdraw from the
Series 2001-1 Yield Supplement Account and deposit in the Series 2001-1
Preferred Member Distribution Account, and the Indenture Trustee shall
withdraw from the Series 2001-1 Yield Supplement Account and deposit in the
Series 2001-1 Preferred Member Distribution Account an amount up to the lesser
of (i) such Series 2001-1 Yield Supplement Account Surplus on such Business
Day and (ii) the Series 2001-1 Yield Supplement Account Amount on such
Business Day.
(e) Amounts will be withdrawn from the Series 2001-1 Yield
Supplement Account in accordance with Section 5A.4(b).
(f) In order to secure and provide for the repayment and payment of
the Issuer Obligations with respect to the Series 2001-1 Investor Notes, the
Issuer hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Indenture Trustee, for the benefit of the
Series 2001-1 Investor Noteholders, all of the Issuer's right, title and
interest in and to the following (whether now or hereafter existing or
acquired): (i) the Series 2001-1 Yield Supplement Account, including any
security entitlement thereto; (ii) all funds on deposit therein from time to
time; (iii) all certificates and instruments, if any, representing or
evidencing any or all of the Series 2001-1 Yield Supplement Account or the
funds on deposit therein from time to time; (iv) all investments made at any
time and from time to time with monies in the Series 2001-1 Yield Supplement
Account, whether constituting securities, instruments, general intangibles,
investment property, financial assets or other property; (v) all interest,
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for the
Series 2001-1 Yield Supplement Account, the funds on deposit therein from time
to time or the investments made with such funds; and (vi) all proceeds of any
and all of the foregoing, including, without limitation, cash. The Indenture
Trustee shall possess all right, title and interest in all funds on deposit
from time to time in the Series 2001-1 Yield Supplement Account and in all
proceeds thereof and shall be the only person authorized to originate
entitlement orders in respect of the Series 2001-1 Yield Supplement Account.
The Indenture Trustee and the Series 2001-1 Investor Noteholders shall have no
interest in any amounts withdrawn from the Series 2001-1 Yield Supplement
Account and deposited in the Series 2001-1 Preferred Member Distribution
Account.
(g) On the first Payment Date after the Series 2001-1 Note
Termination Date on which the sum of (a) the Series 2001-1 Reserve Account
Amount, (b) the Series 2001-1 Yield Supplement Account Amount and (c) the
amount available to be deposited in the Series 2001-1 Preferred Member
Distribution Account in accordance with Section 5A.4(c)(ix) is at least equal
to the aggregate stated liquidation preference of the Series 2001-1 Preferred
Membership Interests and on any Payment Date thereafter, the Indenture
Trustee, acting in accordance with the written instructions of the
Administrator shall withdraw from the Series 2001-1 Yield Supplement Account
all amounts on deposit therein for deposit in the Series 2001-1 Preferred
Member Distribution Account.
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Section 5A.10 Series 2001-1 Distribution Account.
(a) The Indenture Trustee shall establish and maintain in the name
of the Indenture Trustee for the benefit of the Series 2001-1 Investor
Noteholders an account (the "Series 2001-1 Distribution Account"), bearing a
designation clearly indicating that the funds deposited therein are held for
the benefit of the Series 2001-1 Investor Noteholders. The Series 2001-1
Distribution Account shall be an Eligible Deposit Account; provided that, if
at any time such account is not an Eligible Deposit Account, then the
Indenture Trustee shall, within 30 days of obtaining knowledge of such
reduction, establish a new Series 2001-1 Distribution Account that is an
Eligible Deposit Account. If the Indenture Trustee establishes a new Series
2001-1 Distribution Account, it shall transfer all cash and investments from
the non-qualifying Series 2001-1 Distribution Account into the new Series
2001-1 Distribution Account. Initially, the Series 2001-1 Distribution Account
will be established with The Chase Manhattan Bank.
(b) In order to secure and provide for the repayment and payment of
the Issuer Obligations with respect to the Series 2001-1 Investor Notes, the
Issuer hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Indenture Trustee, for the benefit of the
Series 2001-1 Investor Noteholders, all of the Issuer's right, title and
interest in and to the following (whether now or hereafter existing or
acquired): (i) the Series 2001-1 Distribution Account, including any security
entitlement thereto; (ii) all funds on deposit therein from time to time;
(iii) all certificates and instruments, if any, representing or evidencing any
or all of the Series 2001-1 Distribution Account or the funds on deposit
therein from time to time; (iv) all interest, dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for the Series 2001-1 Distribution Account, the
funds on deposit therein from time to time; and (v) all proceeds of any and
all of the foregoing, including, without limitation, cash. The Indenture
Trustee shall possess all right, title and interest in all funds on deposit
from time to time in the Series 2001-1 Distribution Account and in all
proceeds thereof and shall be the only person authorized to originate
entitlement orders in respect of the Series 2001-1 Distribution Account.
Section 5A.11 Lease Rate Caps.
(a) The Issuer shall have obtained on the Series 2001-1 Closing Date
and shall thereafter maintain one or more interest rate caps, each from a
Series 2001-1 Eligible Counterparty, having, in the aggregate, a notional
amount on the Series 2001-1 Closing Date at least equal to the aggregate Lease
Balance of all Fixed Rate Leases allocated to the Lease SUBI Portfolio as of
the Series 2001-1 Closing Date, plus, in the case of all such Fixed Rate
Leases that are Closed-End Leases, the aggregate Stated Residual Values of the
related Leased Vehicles and on each Payment Date thereafter at least equal to
the aggregate scheduled Lease Balance of all such Fixed Rate Leases as of the
last day of the Monthly Period immediately preceding such Payment Date, plus,
in the case of all such Fixed Rate Leases that are Closed-End Leases, the
aggregate Stated Residual Values of the related Leased Vehicles, and an
effective strike rate based on the eurodollar rate set forth therein in effect
on the dates set forth therein at the most equal to the weighted average fixed
rate of interest on such Fixed Rate Leases minus 0.65% per annum.
25
(b) On or prior to the date that any Fixed Rate Lease is allocated
to the Lease SUBI Portfolio on or after the Series 2001-1 Closing Date, the
Issuer shall have obtained and shall thereafter maintain an interest rate cap
from a Series 2001-1 Eligible Counterparty having a notional amount equal to
the initial Lease Balance of such Fixed Rate Lease, plus, in the case of a
Closed-End Lease, the Stated Residual Value of the related Leased Vehicle and
on each Payment Date thereafter at least equal to the scheduled Lease Balance
of such Fixed Rate Lease as of the last day of the Monthly Period immediately
preceding such Payment Date, plus, in the case of a Closed-End Lease, the
Stated Residual Value of the related Leased Vehicle and an effective strike
rate based on the eurodollar rate set forth therein in effect on the dates set
forth therein at the most equal to the fixed rate of interest on such Fixed
Rate Lease minus 0.65% per annum.
(c) The Issuer may obtain an interest rate cap from a Series 2001-1
Eligible Counterparty in respect of any Fixed Rate Leases allocated to the
Lease SUBI Portfolio that was not a Fixed Rate Lease when initially allocated
to the Lease SUBI Portfolio or on the Series 2001-1 Closing Date having a
notional amount equal to the Lease Balance of such Fixed Rate Lease as of the
last day of the Monthly Period immediately preceding the date as of which such
Lease became a Fixed Rate Lease, plus, in the case of a Closed-End Lease, the
Stated Residual Value of the related Leased Vehicle and on each Payment Date
thereafter at least equal to the scheduled Lease Balance of such Fixed Rate
Lease as of the last day of the Monthly Period immediately preceding such
Payment Date, plus, in the case of a Closed-End Lease, the Stated Residual
Value of the related Leased Vehicle and an effective strike rate based on the
eurodollar rate set forth therein in effect on the dates set forth therein at
the most equal to the fixed rate of interest on such Fixed Rate Lease minus
0.65% per annum. If the Issuer obtains an interest rate cap in respect of any
Fixed Rate Lease satisfying the requirements of this Section 5A.11(c), it
shall maintain such interest rate cap.
(d) The Issuer shall have obtained on the Series 2001-1 Closing Date
and shall thereafter maintain the Series 2001-1 Required Lease Rate Cap.
(e) If the short-term credit rating of any provider of an interest
rate cap required to be obtained and maintained by the Issuer pursuant to this
Section 5A.11 falls below A-1 by Standard & Poor's or P-1 by Xxxxx'x or the
long-term unsecured credit rating of any such provider falls below A+ by
Standard & Poor's or Aa3 by Xxxxx'x, the Issuer shall obtain an equivalent
interest rate cap from a Series 2001-1 Eligible Counterparty within 30 days of
such decline in credit rating unless such provider provides some form of
collateral for its obligations under its interest rate cap and the Rating
Agency Condition is satisfied with respect to such arrangement. The Issuer
will not permit any interest rate cap required to be obtained and maintained
by the Issuer pursuant to this Section 5A.11 to be terminated or transferred
in whole or in part unless a replacement interest rate cap therefor has been
provided as described in the immediately preceding sentence and, after giving
effect thereto, the Issuer has the interest rate caps required to be obtained
and maintained by the Issuer pursuant to this Section 5A.11.
(f) In order to secure and provide for the repayment and payment of
the Issuer Obligations with respect to the Series 2001-1 Investor Notes, the
Issuer hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Indenture Trustee, for the
26
benefit of the Series 2001-1 Investor Noteholders, all of the Issuer's right,
title and interest in and to the Series 2001-1 Lease Rate Cap and all proceeds
thereof.
ARTICLE III
AMORTIZATION EVENTS
If any one of the following events shall occur with respect to the
Series 2001-1 Investor Notes:
(a) the Series 2001-1 Reserve Account shall have become subject to
an injunction, estoppel or other stay or a Lien (other than a Permitted
Lien);
(b) the Series 2001-1 Yield Supplement Account shall have become
subject to an injunction, estoppel or other stay or a Lien (other than a
Permitted Lien);
(c) a Series 2001-1 Liquid Credit Enhancement Deficiency shall occur
and continue for at least two Business Days;
(d) a Series 2001-1 Allocated Asset Amount Deficiency shall occur
and continue for at least two Business Days;
(e) a Series 2001-1 Yield Supplement Deficiency shall occur and
continue for at least two Business Days;
(f) the Three Month Average Charge-Off Ratio with respect to any
Settlement Date exceeds 1.00%;
(g) the Three Month Average Paid-In Advance Loss Ratio with respect
to any Settlement Date exceeds 1.50%;
(h) the Three Month Average Delinquency Ratio with respect to any
Settlement Date exceeds 7.00%;
(i) the failure on the part of the Issuer to declare and pay
dividends on the Series 2001-1 Senior Preferred Membership Interests or
the Series 2001-1 Junior Preferred Membership Interests on any Payment
Date in accordance with their terms;
(j) any Servicer Termination Event shall occur;
(k) any Termination Event shall occur;
(l) an Event of Default with respect to the Series 2001-1 Investor
Notes shall occur;
(m) there is at least $10,000,000 on deposit in the Series 2001-1
Principal Collection Subaccount on two consecutive Settlement Dates
during the Series 2001-1 Revolving Period;
27
(n) an Insolvency Event shall occur with respect to SPV, the
Origination Trust, Avis, PHH, Cendant or VMS;
(o) all principal and interest of the Class A-1 Investor Notes is
not paid in full on or before the Class A-1 Maturity Date or all
principal and interest of the Class A-2 Investor Notes is not paid in
full on or before the Class A-2 Maturity Date;
(p) failure on the part of the Issuer (i) to make any payment or
deposit required by the terms of the Indenture (or within the applicable
grace period which shall not exceed two Business Days after the date such
payment or deposit is required to be made) or (ii) duly to observe or
perform in any material respect any covenants or agreements of the Issuer
set forth in the Base Indenture or this Indenture Supplement, which
failure continues unremedied for a period of 45 days after there shall
have been given to the Issuer by the Indenture Trustee or the Issuer and
the Indenture Trustee by the Series 2001-1 Required Investor Noteholders,
written notice specifying such default and requiring it to be remedied;
(q) any representation or warranty made by the Issuer in the Base
Indenture or this Indenture Supplement, or any information required to be
delivered by the Issuer to the Indenture Trustee shall prove to have been
incorrect in any material respect when made or when delivered, which
continues to be incorrect in any material respect for a period of 45 days
after there shall have been given to the Issuer by the Indenture Trustee
or the Issuer and the Indenture Trustee by the Series 2001-1 Required
Investor Noteholders, written notice thereof;
(r) the Indenture Trustee shall for any reason cease to have a valid
and perfected first priority security interest in the Collateral or any
of VMS, the Issuer or any Affiliate of either thereof shall so assert;
(s) there shall have been filed against Cendant, PHH, VMS, the
Origination Trust, SPV or the Issuer (i) a notice of federal tax Lien
from the Internal Revenue Service, (ii) a notice of Lien from the PBGC
under Section 412(n) of the Internal Revenue Code or Section 302(f) of
ERISA for a failure to make a required installment or other payment to a
plan to which either of such sections applies or (iii) a notice of any
other Lien the existence of which could reasonably be expected to have a
material adverse effect on the business, operations or financial
condition of such Person, and, in each case, 40 days shall have elapsed
without such notice having been effectively withdrawn or such Lien having
been released or discharged;
(t) one or more judgments or decrees shall be entered against the
Issuer involving in the aggregate a liability (not paid or fully covered
by insurance) of $100,000 or more and such judgments or decrees shall not
have been vacated, discharged, stayed or bonded pending appeal within 30
days from the entry thereof; or
(u) any of the Transaction Documents shall cease, for any reason, to
be in full force and effect, other than in accordance with its terms;
then, in the case of any event described in clause (p) through (u) above, an
Amortization Event will be deemed to have occurred with respect to the Series
2001-1 Investor Notes only, if after the applicable grace period, either the
Indenture Trustee or Series 2001-1 Investor Noteholders
28
holding a Majority in Interest of the Series 2001-1 Investor Notes, declare
that an Amortization Event has occurred with respect to the Series 2001-1
Investor Notes. In the case of any event described in clauses (a) through (o)
above, an Amortization Event with respect to the Series 2001-1 Investor Notes
will be deemed to have occurred without notice or other action on the part of
the Indenture Trustee or the Series 2001-1 Investor Noteholders.
ARTICLE IV
OPTIONAL PREPAYMENT
The Issuer shall have the option to prepay the Series 2001-1
Investor Notes in full on any Payment Date after the Payment Date in
March 2003. The Issuer shall give the Indenture Trustee at least ten Business
Days' prior written notice of the Payment Date on which the Issuer intends to
exercise such option to prepay (the "Prepayment Date"). The prepayment price
for the Series 2001-1 Investor Notes shall equal the aggregate outstanding
principal balance of the Series 2001-1 Investor Notes (determined after giving
effect to any payments of principal and interest on such Payment Date), plus
accrued and unpaid interest on such outstanding principal balance. Not later
than 11:00 a.m., New York City time, on such Prepayment Date, the Issuer shall
deposit in the Series 2001-1 Distribution Account an amount equal to the
prepayment price in immediately available funds. The funds deposited into the
Series 2001-1 Distribution Account will be paid by the Indenture Trustee to
the Series 2001-1 Investor Noteholders on such Prepayment Date.
ARTICLE V
SERVICING AND ADMINISTRATOR FEES
Section 5.1 Servicing Fees. A periodic servicing fee (the "Series
2001-1 Basic Servicing Fee") shall be payable to the Servicer on each Payment
Date for the Series 2001-1 Interest Period ending on such Payment Date in an
amount equal to the product of (a) 0.215% per annum (the "Series Servicing Fee
Percentage") times (b) the Series 2001-1 Allocated Adjusted Aggregate Unit
Balance as of the first day of such Series 2001-1 Interest Period times (c)
the number of days in such Series 2001-1 Interest Period divided by 365 (or
366, as applicable) days; provided, however that if VMS is not the Servicer,
the servicing fee payable to the Servicer on each Payment Date hereunder may
be increased such that the sum of the Series 2001-1 Basic Servicing Fee and
the additional servicing fee payable to the Servicer hereunder (the "Series
2001-1 Supplemental Servicing Fee") for each Series 2001-1 Interest Period
equals 110% of the costs to the successor Servicer of servicing the portion of
the Lease SUBI Portfolio allocated to Series 2001-1 during such Series 2001-1
Interest Period. For this purpose, the portion of the Lease SUBI Portfolio
allocated to Series 2001-1 for each Series 2001-1 Interest Period shall equal
the average Series 2001-1 Invested Percentage during such Series 2001-1
Interest Period. The Series 2001-1 Basic Servicing Fee and any Series 2001-1
Supplemental Servicing Fee shall be payable to the Servicer on each Payment
Date pursuant to Section 5A.4(c).
29
Section 5.2 Administrator Fee. A periodic fee (the "Series 2001-1
Administrator Fee") shall be payable to the Administrator on each Payment Date
for the Series 2001-1 Interest Period ending on such Payment Date in an amount
equal to the product of (a) 0.01% per annum times (b) the Series 2001-1
Allocated Adjusted Aggregate Unit Balance as of the first day of the
immediately preceding Monthly Period times (c) the number of days in such
Series 2001-1 Interest Period divided by 365 (or 366, as applicable) days. The
Series 2001-1 Administrator Fee shall be payable to the Administrator on each
Payment Date pursuant to Section 5A.4(c)(vii).
ARTICLE VI
FORM OF SERIES 2001-1 NOTES
Section 6.1 Initial Issuance of Series 2001-1 Investor Notes.
The Series 2001-1 Investor Notes are being offered and sold by the
Issuer in a registered public offering pursuant to an Underwriting Agreement,
dated September _, 2001, among the Issuer, VMS, PHH and X.X. Xxxxxx Securities
Inc., as the representative of the underwriters.
Section 6.2 Global Notes.
The Series 2001-1 Investor Notes of each Class will be issued in the
form of one or more Global Notes in fully registered form, without coupons,
substantially in the form set forth in Exhibits A-1 and A-2, registered in the
name of Cede & Co., as nominee of DTC, and deposited with Chase, as custodian
of DTC (collectively, the "Series 2001-1 Global Notes").
The Series 2001-1 Global Notes shall bear the following legends:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, 00 XXXXX
XXXXXX, XXX XXXX, XXX XXXX 00000, XX X XXXXXXX THEREOF. THIS NOTE
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED,
AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED,
IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC TO THE ISSUER OR THE TRANSFER AGENT AND REGISTRAR, AND ANY
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN
INTEREST HEREIN.
30
Section 6.3 Definitive Notes.
No Series 2001-1 Note Owner will receive a Definitive Note
representing such Series 2001-1 Note Owner's interest in the Series 2001-1
Investor Notes other than in accordance with Section 2.11 of the Base
Indenture.
ARTICLE VII
INFORMATION
The Issuer hereby agrees to provide to the Indenture Trustee and
each provider of the Series 2001-1 Required Lease Rate Cap, on each
Determination Date, a Monthly Settlement Statement, substantially in the form
of Exhibit B, setting forth as of the last day of the most recent Monthly
Period and for such Monthly Period the information set forth therein. The
Indenture Trustee shall provide to the Series 2001-1 Investor Noteholders, or
their designated agent, copies of each Monthly Settlement Statement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Ratification of Indenture. As supplemented by this
Indenture Supplement, the Indenture is in all respects ratified and confirmed
and the Indenture as so supplemented by this Indenture Supplement shall be
read, taken and construed as one and the same instrument.
Section 8.2 Obligations Unaffected. The obligations of the Issuer to
the Series 2001-1 Investor Noteholders under this Indenture Supplement shall
not be affected by reason of any invalidity, illegality or irregularity of any
of the SUBI Certificates, the Sold Units or the Fleet Receivables.
Section 8.3 Governing Law. THIS INDENTURE SUPPLEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 8.4 Further Assurances. Each of the Issuer and the Indenture
Trustee agrees, at the Administrator's expense, from time to time, to do and
perform any and all acts and to execute any and all further instruments
required or reasonably requested by the Series 2001-1 Required Investor
Noteholders more fully to effect the purposes of this Indenture Supplement and
the sale of the Series 2001-1 Investor Notes hereunder. The Issuer hereby
authorizes the Indenture Trustee to file any financing statements or similar
documents or notices or continuation statements relating to the Series 2001-1
Collateral under the provisions of the UCC or similar legislation of any
applicable jurisdiction.
31
Section 8.5 Exhibits. The following exhibits attached hereto
supplement the exhibits included in the Base Indenture:
Exhibit A-1: Form of Class A-1 Note
Exhibit A-1: Form of Class A-2 Note
Exhibit B: Form of Monthly Settlement Statement
Exhibit C: Form of Series 2001-1 Lease Rate Cap
Section 8.6 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Indenture Trustee, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 8.7 Amendments. (a) This Indenture Supplement may be amended
in writing from time to time in accordance with the terms of the Base
Indenture.
(b) No amendment specified in this Indenture Supplement as requiring
satisfaction of the Rating Agency Condition shall be effective until the
Rating Agency Condition is satisfied with respect thereto.
(c) The Issuer reserves the right, without any consent or other
action of the Series 2001-1 Investor Noteholders, to amend Schedule 1 to the
Base Indenture by (i) deleting "15%" from clause (a)(ii) of the definition of
Excess Longer-Term Lease Amount and substituting in lieu thereof "20%", (ii)
deleting "5%" from clause (b)(ii) of the definition of Excess Longer-Term
Lease Amount and substituting in lieu thereof "7.5%" and (c) deleting "10%"
from clause (ii) of the definition of Excess Residual Value Amount and
substituting in lieu thereof "7.5%".
Section 8.8 Severability. If any provision hereof is void or
unenforceable in any jurisdiction, such voidness or unenforceability shall not
affect the validity or enforceability of (i) such provision in any other
jurisdiction or (ii) any other provision hereof in such or any other
jurisdiction.
Section 8.9 Counterparts. This Indenture Supplement may be executed
in any number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original, and all of which taken together shall constitute one and the same
agreement.
Section 8.10 No Bankruptcy Petition. (a) By acquiring a Series
2001-1 Investor Note or an interest therein, each Series 2001-1 Investor
Noteholder and each Series 2001-1 Investor Note Owner hereby covenants and
agrees that it will not institute against, or join any other Person in
instituting against, the Issuer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other similar proceedings under any
federal or state bankruptcy or similar law.
32
(a) By acquiring a Series 2001-1 Investor Note or an interest
therein, each Series 2001-1 Investor Noteholder and each Series 2001-1
Investor Note Owner and the Issuer and the Indenture Trustee hereby covenants
and agrees that, prior to the date which is one year and one day after payment
in full of all obligations under each Securitization, it will not institute
against, or join any other Person in instituting against, the Origination
Trust, SPV, 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 8.11 SUBIs. By acquiring a Series 2001-1 Investor Note or an
interest therein, each Series 2001-1 Investor Noteholder and each Series
2001-1 Investor Note Owner and the Issuer hereby represents, warrants and
covenants that (a) each of the Lease SUBI and the Fleet Receivable SUBI is a
separate series of the Origination Trust as provided in Section 3806(b)(2) of
Chapter 38 of Title 12 of the Delaware Code, 12 Del.C. ss. 3801 et seq.,
(b)(i) the debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to the Lease SUBI, the Lease SUBI
Portfolio or the Fleet Receivable SUBI shall be enforceable against the Lease
SUBI Portfolio or the Fleet Receivable SUBI only, as applicable, and not
against any other SUBI Portfolio or the UTI Portfolio and (ii) 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 (used in this
Section as defined in the Origination Trust Agreement), 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 from or with respect to the Lease SUBI or Fleet Receivable SUBI,
respectively, in respect of such claim, (d)(i) no creditor or holder of a
claim relating to the Lease SUBI, the Fleet Receivable SUBI or the Lease
Receivable SUBI Portfolio 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, and (e) any purchaser, assignee or pledgee of an interest in
the Lease SUBI, the Lease SUBI Certificate, the Fleet Receivable SUBI, the
Lease SUBI Certificate, the Fleet Receivable SUBI Certificate, any other SUBI,
any other SUBI Certificate (used in this Section as defined in the Origination
Trust Agreement), the UTI or the UTI Certificate must, prior to or
contemporaneously with the grant of any such assignment, pledge or security
interest, (i) give to the Origination Trust a non-petition covenant
substantially similar to that set forth in Section 6.9 of the Origination
Trust Agreement, and (ii) execute an agreement for the benefit of each holder,
assignee or pledgee from time to time of the UTI or UTI Certificate and any
other SUBI or SUBI Certificate to release all claims to the assets of the
Origination Trust allocated to the UTI and each other SUBI Portfolio and in
the event that such release is not given effect, to fully subordinate all
claims it may be deemed to have against the assets of the Origination Trust
allocated to the UTI Portfolio and each other SUBI Portfolio.
33
Section 8.12 Notice to Rating Agencies. The Indenture Trustee shall
provide to each Rating Agency a copy of each notice delivered to, or required
to be provided by, the Indenture Trustee pursuant to this Indenture Supplement
or any other Transaction Document.
Section 8.13 Conflict of Instructions. In the event the Issuer and
the Administrator shall have delivered conflicting instructions to the
Indenture Trustee to take or refrain from taking action hereunder, the
Indenture Trustee shall follow the instructions of the Issuer.
34
IN WITNE S WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture Supplement to be duly executed by their respective officers
hereunto duly authorized as of the day and year first above written.
GREYHOUND FUNDING, LLC
By: ___________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By: ___________________________
Name:
Title:
35
EXHIBIT A-1
TO SERIES 2001-1
INDENTURE SUPPLEMENT
FORM OF GLOBAL CLASS A-1 INVESTOR NOTE
REGISTERED $______________
No. R-
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP (CINS) NO. [ ]
ISIN NO. [ ]
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY ("DTC"), A NEW YORK CORPORATION, 00 XXXXX XXXXXX, XXX XXXX, XXX XXXX
00000, XX X XXXXXXX THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN
PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN
PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO THE ISSUER OR THE TRANSFER AGENT AND REGISTRAR, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS CLASS A-1 INVESTOR NOTE IS PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
AMOUNT OF THIS CLASS A-1 INVESTOR NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
GREYHOUND FUNDING LLC
SERIES 2001-1 FLOATING RATE CALLABLE ASSET BACKED INVESTOR NOTES, CLASS A-1
A-1
GREYHOUND FUNDING LLC, a limited liability company formed under the
laws of the State of Delaware (herein referred to as the "Issuer"), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of [ ], which amount shall be payable in the amounts and at the
times set forth in the Indenture described herein, provided, however, that the
entire unpaid principal amount of this Class A-1 Investor Note shall be due on
the Class A-1 Final Maturity Date. However, principal with respect to the
Class A-1 Investor Notes may be paid earlier under certain limited
circumstances described in the Indenture. The Issuer will pay interest on this
Class A-1 Investor Note for each Series 2001-1 Interest Period, in accordance
with the terms of the Indenture, at the Class A-1 Note Rate for such Interest
Period. Each "Series 2001-1 Interest Period" will be a period commencing on
and including a Payment Date and ending on and including the day preceding the
next succeeding Payment Date; provided, however, that the initial Series
2001-1 Interest Period shall commence on and include the Series 2001-1 Closing
Date and end on and include October 8, 2001. Such principal of and interest
on this Class A-1 Investor Note shall be paid in the manner specified on the
reverse hereof and in the Indenture.
The principal of and interest on this Class A-1 Investor Note are
payable in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Class A-1 Investor Note shall
be applied as provided in the Indenture. This Class A-1 Investor Note does not
represent an interest in, or an obligation of, PHH Vehicle Management Services
LLC ("VMS") or any affiliate of VMS other than the Issuer.
Reference is made to the further provisions of this Class A-1
Investor Note set forth on the reverse hereof, which shall have the same
effect as though fully set forth on the face of this Class A-1 Investor Note.
Although a summary of certain provisions of the Indenture is set forth below
and on the reverse hereof and made a part hereof, this Class A-1 Investor Note
does not purport to summarize the Indenture and reference is made to the
Indenture for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Issuer and the Indenture Trustee. A copy of the Indenture
may be requested from the Indenture Trustee by writing to the Indenture
Trustee at: The Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, Attention: Capital Markets Fiduciary Services. To the extent not
defined herein, the capitalized terms used herein have the meanings ascribed
to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class
A-1 Investor Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date: _________, 2001
GREYHOUND FUNDING LLC
By: ___________________________
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Investor Notes issued under the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Indenture
Trustee
By:___________________________
Authorized Signatory
A-3
[REVERSE OF CLASS A-1 INVESTOR NOTE]
This Class A-1 Investor Note is one of a duly authorized issue of
Class A-1 Investor Notes of the Issuer designated its Series 2001-1 Floating
Rate Asset Backed Investor Notes (herein called the "Class A-1 Investor
Notes"), all issued under (i) a Base Indenture dated as of June 30, 1999 (such
Base Indenture, as amended or modified, is herein called the "Base
Indenture"), between the Issuer and The Chase Manhattan Bank, as Indenture
Trustee (the "Indenture Trustee", which term includes any successor Indenture
Trustee under the Base Indenture), and (ii) a Series 2001-1 Indenture
Supplement dated as of September __, 2001 (the "Series 2001-1 Indenture
Supplement") between the Issuer and the Indenture Trustee. The Base Indenture
and the Series 2001-1 Supplement are referred to herein as the "Indenture".
The Class A-1 Investor Notes are subject to all terms of the Indenture. All
terms used in this Class A-1 Investor Note that are defined in the Indenture,
as supplemented, modified or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented, modified or amended.
The Class A-1 Investor Notes are and will be equally and ratably
secured by the Series 2001-1 Collateral pledged as security therefor as
provided in the Indenture and the Series 2001-1 Indenture Supplement.
Principal of the Class A-1 Investor Notes will be payable on each
Payment Date specified in and in the amounts described in the Indenture.
"Payment Date" means the 7th day of each month, or if such date is not a
Business Day, the next succeeding Business Day, commencing October 9, 2001.
The entire unpaid principal amount of this Series 2001-1 Investor
Note shall be due and payable on the Class A-1 Final Maturity Date.
Notwithstanding the foregoing, principal on the Class A-1 Investor Notes will
be paid earlier during the Series 2001-1 Amortization Period as described in
the Indenture. All principal payments on the Class A-1 Investor Notes shall be
made pro rata to the Class A-1 Investor Noteholders entitled thereto.
The Issuer will have the option to prepay the Series 2001-1 Investor
Notes, in whole but not in part, on any Payment Date after the Payment Date in
March 2003. The prepayment price for the Series 2001-1 Investor Notes will be
equal to the amount set forth in the Indenture.
Interest will accrue on this Class A-1 Investor Notes for each
Series 2001-1 Interest Period at a rate equal to (i) with respect to the
initial Series 2001-1 Interest Period, ___% per annum and (ii) with respect to
each Series 2001-1 Interest Period thereafter, a rate per annum equal to
One-Month LIBOR for such Series 2001-1 Interest Period plus .__% per annum
(the "Class A-1 Note Rate"). "One-Month LIBOR" means, for each Series 2001-1
Interest Period, the rate per annum determined on the related LIBOR
Determination Date by the Calculation Agent to be the rate for Dollar deposits
having a maturity equal to one month that appears on Telerate Page 3750 at
approximately 11:00 a.m., London time, on such LIBOR Determination Date;
provided, however, that if such rate does not appear on Telerate Page 3750,
One-Month LIBOR will mean, for such 2001-1 Interest Period, the rate per annum
equal to the arithmetic mean (rounded to the nearest
one-one-hundred-thousandth of one percent) of the rates quoted by the
Reference Banks to the Calculation Agent as the rates at which deposits in
Dollars are
A-4
offered by the Reference Banks at approximately 11:00 a.m., London
time, on the LIBOR Determination Date to prime banks in the London interbank
market for a period equal to one month; provided, further, that if fewer than
two quotations are provided as requested by the Reference Banks, "One-Month
LIBOR" for such Series 2001-1 Interest Period will mean the arithmetic mean
(rounded to the nearest one-one-hundred-thousandth of one percent) of the
rates quoted by major banks in New York, New York selected by the Calculation
Agent, at approximately 10:00 a.m., New York City time, on the first day of
such Series 2001-1 Interest Period for loans in Dollars to leading European
banks for a period equal to one month; provided, finally, that if no such
quotes are provided, "One-Month LIBOR" for such Series 2001-1 Interest Period
will mean One-Month LIBOR as in effect with respect to the preceding Series
2001-1 Interest Period.
The Issuer shall pay interest on overdue installments of interest at
the Class A-1 Note Rate to the extent lawful.
As provided in the Indenture, the transfer of this Class A-1
Investor Note may be registered on the Note Register upon surrender of this
Class A-1 Investor Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-1 Investor Notes
of authorized denominations in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Class A-1
Investor Note, but the transferor may be required to pay a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any such registration of transfer or exchange.
By acquiring a Class A-1 Investor Note or an interest therein, each
Class A-1 Investor Noteholder and each Class A-1 Investor Note Owner and the
Issuer and the Indenture Trustee hereby covenants and agrees that, prior to
the date which is one year and one day after payment in full of all
obligations under each Securitization, it will not institute against, or join
any other Person in instituting against, the Origination Trust, SPV, 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.
Each Class A-1 Investor Noteholder, by acceptance of a Class A-1
Investor Note or, in the case of a Class A-1 Investor Note Owner, a beneficial
interest in a Class A-1 Investor Note, hereby represents, warrants and
covenants that (a) each of the Lease SUBI and the Fleet Receivable SUBI is a
separate series of the Origination Trust as provided in Section 3806(b)(2) of
Chapter 38 of Title 12 of the Delaware Code, 12 Del.C. ss. 3801 et seq.,
(b)(i) the debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to the Lease SUBI, the Lease SUBI
Portfolio or the Fleet Receivable SUBI shall be enforceable against the Lease
SUBI Portfolio or the Fleet Receivable SUBI only, as applicable, and not
against any other SUBI Portfolio or the UTI Portfolio and (ii) the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to any other SUBI (used
A-5
in this paragraph as defined in the Origination Trust Agreement), any other SUBI
Portfolio (used in this paragraph as defined in the Origination Trust
Agreement), 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 from or with respect to the Lease SUBI or
Fleet Receivable SUBI, respectively, in respect of such claim, (d)(i) no
creditor or holder of a claim relating to the Lease SUBI, the Fleet Receivable
SUBI or the Lease SUBI Portfolio 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, and (e) any purchaser, assignee or pledgee of an
interest in the Lease SUBI, the Lease SUBI Certificate, the Fleet Receivable
SUBI, the Lease SUBI Certificate, the Fleet Receivable SUBI Certificate, any
other SUBI, any other SUBI Certificate (used in this Section as defined in the
Origination Trust Agreement), the UTI or the UTI Certificate must, prior to or
contemporaneously with the grant of any such assignment, pledge or security
interest, (i) give to the Origination Trust a non-petition covenant
substantially similar to that set forth in Section 6.9 of the Origination
Trust Agreement, and (ii) execute an agreement for the benefit of each holder,
assignee or pledgee from time to time of the UTI or UTI Certificate and any
other SUBI or SUBI Certificate to release all claims to the assets of the
Origination Trust allocated to the UTI and each other SUBI Portfolio and in
the event that such release is not given effect, to fully subordinate all
claims it may be deemed to have against the assets of the Origination Trust
allocated to the UTI Portfolio and each other SUBI Portfolio.
Each Class A-1 Investor Noteholder or Class A-1 Investor Note Owner,
by acceptance of a Class A-1 Investor Note or, in the case of a Class A-1
Investor Note Owner, a beneficial interest in a Class A-1 Investor Note,
covenants and agrees that by accepting the benefits of the Indenture that such
Class A-1 Investor Noteholder or Class A-1 Investor Note Owner will not
institute against, or join with any other Person in instituting against, the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings, under any Federal or state bankruptcy or
similar law.
It is the intent of the Issuer, each Class A-1 Investor Noteholder
and each Class A-1 Investor Note Owner that, for Federal, state and local
income and franchise tax purposes only, the Class A-1 Investor Notes will
evidence indebtedness of the Issuer secured by the Series 2001-1 Collateral.
Each Class A-1 Investor Noteholder and each Class A-1 Investor Note Owner, by
the acceptance of this Class A-1 Investor Note, agrees to treat this Class A-1
Investor Note for purposes of Federal, state and local income and franchise
taxes and any other tax imposed on or measured by income, as indebtedness of
the Issuer.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Series 2001-1 Investor Notes
under the Indenture at any time by the Issuer with the consent of the Holders
of a Majority in Interest of the Series 2001-1 Investor Notes affected by such
amendment or modification. The Indenture also contains provisions permitting
A-6
the Holders of Series 2001-1 Investor Notes representing specified percentages
of the aggregate outstanding amount of the Series 2001-1 Investor Notes, on
behalf of the Holders of all the Series 2001-1 Investor Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Class A-1 Investor Note (or any one or more
predecessor Class A-1 Investor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Class A-1 Investor Note and of
any Class A-1 Investor Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of such consent
or waiver is made upon this Class A-1 Investor Note. The Indenture also
permits the Indenture Trustee to amend or waive certain terms and conditions
set forth in the Indenture without the consent of Holders of the Series 2001-1
Investor Notes issued thereunder.
The term "Issuer" as used in this Class A-1 Investor Note includes
any successor to the Issuer under the Indenture.
The Class A-1 Investor Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations set
forth therein.
This Class A-1 Investor Note and the Indenture shall be governed by,
and construed in accordance with, the law of the State of New York, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such law.
No reference herein to the Indenture and no provision of this Class
A-1 Investor Note or of the Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Class A-1 Investor Note at the times, place and rate, and in
the coin or currency herein prescribed.
Interests in this Global Note may be exchanged for Definitive Notes,
subject to the provisions of the Indenture.
A-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
-----------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
------------------------------------------------------------------------------
(name and address of assignee)
the within Class A-1 Investor Note and all rights thereunder, and hereby
irrevocably constitutes and appoints ____________________, attorney, to
transfer said Class A-1 Investor Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:__________________ By:_______________________(1)
Signature Guaranteed:
----------------------------------
----------------------------------
---------------
(1) NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Class
A-1 Investor Note, without alteration, enlargement or any change
whatsoever.
A-8
EXHIBIT A-2
TO SERIES 2001-1
INDENTURE SUPPLEMENT
FORM OF GLOBAL CLASS A-2 INVESTOR NOTE
REGISTERED $__________
No. R-
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP (CINS) NO. [ ]
ISIN NO. [ ]
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY ("DTC"), A NEW YORK CORPORATION, 00 XXXXX XXXXXX, XXX XXXX, XXX XXXX
00000, XX X XXXXXXX THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN
PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN
PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO THE ISSUER OR THE TRANSFER AGENT AND REGISTRAR, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS CLASS A-2 INVESTOR NOTE IS PAYABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
AMOUNT OF THIS CLASS A-2 INVESTOR NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
GREYHOUND FUNDING LLC
SERIES 2001-1 FLOATING RATE CALLABLE ASSET BACKED INVESTOR NOTES, CLASS A-2
GREYHOUND FUNDING LLC, a limited liability company formed under the
laws of the State of Delaware (herein referred to as the "Issuer"), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of [ ], which amount shall be payable in the amounts and at the
times set forth in the Indenture described herein, provided, however, that the
entire unpaid principal amount of this Class A-2 Investor Note shall be due on
the Class A-2 Final Maturity Date. However, principal with respect to the
Class A-2 Investor Notes may be paid earlier under certain limited
circumstances described in the Indenture. The Issuer will pay interest on this
Class A-2 Note for each Series 2001-1 Interest Period, in accordance with the
terms of the Indenture at the Class A-2 Note Rate for such Interest Period.
Each "Series 2001-1 Interest Period" will be a period commencing on and
including a Payment Date and ending on and including the day preceding the
next succeeding Payment Date; provided, however, that the initial Series
2001-1 Interest Period shall commence on and include the Series 2001-1 Closing
Date and end on and include October 8, 2001. Such principal of and interest
on this Class A-2 Investor Note shall be paid in the manner specified on the
reverse hereof and in the Indenture.
The principal of and interest on this Class A-2 Investor Note are
payable in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Class A-2 Investor Note shall
be applied as provided in the Indenture. This Class A-2 Investor Note does not
represent an interest in, or an obligation of, PHH Vehicle Management Services
LLC ("VMS") or any affiliate of VMS other than the Issuer.
Reference is made to the further provisions of this Class A-2
Investor Note set forth on the reverse hereof, which shall have the same
effect as though fully set forth on the face of this Class A-2 Investor Note.
Although a summary of certain provisions of the Indenture is set forth below
and on the reverse hereof and made a part hereof, this Class A-2 Investor Note
does not purport to summarize the Indenture and reference is made to the
Indenture for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Issuer and the Indenture Trustee. A copy of the Indenture
may be requested from the Indenture Trustee by writing to the Indenture
Trustee at: The Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, Attention: Capital Markets Fiduciary Services. To the extent not
defined herein, the capitalized terms used herein have the meanings ascribed
to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class
A-2 Investor Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date:
GREYHOUND FUNDING LLC
By: _____________________
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Investor Notes issued under the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Indenture
Trustee
By:___________________________
Authorized Signatory
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[REVERSE OF CLASS A-2 INVESTOR NOTE]
This Class A-2 Investor Note is one of a duly authorized issue of
Class A-2 Investor Notes of the Issuer designated its Series 2001-1 Floating
Rate Asset Backed Investor Notes (herein called the "Class A-2 Investor
Notes"), all issued under (i) a Base Indenture dated as of June 30, 1999 (such
Base Indenture, as amended or modified, is herein called the "Base
Indenture"), between the Issuer and The Chase Manhattan Bank, as Indenture
Trustee (the "Indenture Trustee", which term includes any successor Indenture
Trustee under the Base Indenture), and (ii) a Series 2001-1 Indenture
Supplement dated as of September _, 2001 (the "Series 2001-1 Indenture
Supplement") between the Issuer and the Indenture Trustee. The Base Indenture
and the Series 2001-1 Supplement are referred to herein as the "Indenture".
The Class A-2 Investor Notes are subject to all terms of the Indenture. All
terms used in this Class A-2 Investor Note that are defined in the Indenture,
as supplemented, modified or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented, modified or amended.
The Class A-2 Investor Notes are and will be equally and ratably
secured by the Series 2001-1 Collateral pledged as security therefor as
provided in the Indenture and the Series 2001-1 Indenture Supplement.
Principal of the Class A-2 Investor Notes will be payable on each
Payment Date specified in and in the amounts described in the Indenture.
"Payment Date" means the 7th day of each month, or if such date is not a
Business Day, the next succeeding Business Day, commencing October 9, 2001.
The entire unpaid principal amount of this Series 2001-1 Investor
Note shall be due and payable on the Class A-2 Final Maturity Date.
Notwithstanding the foregoing, principal on the Class A-2 Investor Notes will
be paid earlier during the Series 2001-1 Amortization Period as described in
the Indenture. All principal payments on the Class A-2 Investor Notes shall be
made pro rata to the Class A-2 Investor Noteholders entitled thereto.
The Issuer will have the option to prepay the Series 2001-1 Investor
Notes, in whole but not in part, on any Payment Date after the Payment Date in
March 2003. The prepayment price for the Series 2001-1 Investor Notes will be
equal to the amount set forth in the Indenture.
Interest will accrue on this Class A-2 Investor Notes for each
Series 2001-1 Interest Period at a rate equal to (i) with respect to the
initial Series 2001-1 Interest Period, ___% per annum and (ii) with respect to
each Series 2001-1 Interest Period thereafter, a rate per annum equal to
One-Month LIBOR for such Series 2001-1 Interest Period plus .__% per annum
(the "Class A-2 Note Rate"). "One-Month LIBOR" means, for each Series 2001-1
Interest Period, the rate per annum determined on the related LIBOR
Determination Date by the Calculation Agent to be the rate for Dollar deposits
having a maturity equal to one month that appears on Telerate Page 3750 at
approximately 11:00 a.m., London time, on such LIBOR Determination Date;
provided, however, that if such rate does not appear on Telerate Page 3750,
One-Month LIBOR will mean, for such 2001-1 Interest Period, the rate per annum
equal to the arithmetic mean (rounded to the nearest
one-one-hundred-thousandth of one percent) of the rates quoted by the
Reference Banks to the Calculation Agent as the rates at which deposits in
Dollars are
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offered by the Reference Banks at approximately 11:00 a.m., London
time, on the LIBOR Determination Date to prime banks in the London interbank
market for a period equal to one month; provided, further, that if fewer than
two quotations are provided as requested by the Reference Banks, "One-Month
LIBOR" for such Series 2001-1 Interest Period will mean the arithmetic mean
(rounded to the nearest one-one-hundred-thousandth of one percent) of the
rates quoted by major banks in New York, New York selected by the Calculation
Agent, at approximately 10:00 a.m., New York City time, on the first day of
such Series 2001-1 Interest Period for loans in Dollars to leading European
banks for a period equal to one month; provided, finally, that if no such
quotes are provided, "One-Month LIBOR" for such Series 2001-1 Interest Period
will mean One-Month LIBOR as in effect with respect to the preceding Series
2001-1 Interest Period.
The Issuer shall pay interest on overdue installments of interest at
the Class A-2 Note Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Class A-2 Investor Note may be registered
on the Note Register upon surrender of this Class A-2 Investor Note for
registration of transfer at the office or agency designated by the Issuer
pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Class A-2 Investor Notes of authorized denominations
in the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-2 Investor Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
By acquiring a Class A-2 Investor Note or an interest therein, each
Class A-2 Investor Noteholder and each Class A-2 Investor Note Owner and the
Issuer and the Indenture Trustee hereby covenants and agrees that, prior to
the date which is one year and one day after payment in full of all
obligations under each Securitization, it will not institute against, or join
any other Person in instituting against, the Origination Trust, SPV, 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.
Each Class A-2 Investor Noteholder, by acceptance of a Class A-2
Investor Note or, in the case of a Class A-2 Investor Note Owner, a beneficial
interest in a Class A-2 Investor Note, hereby represents, warrants and
covenants that (a) each of the Lease SUBI and the Fleet Receivable SUBI is a
separate series of the Origination Trust as provided in Section 3806(b)(2) of
Chapter 38 of Title 12 of the Delaware Code, 12 Del.C. ss. 3801 et seq.,
(b)(i) the debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to the Lease SUBI, the Lease SUBI
Portfolio or the Fleet Receivable SUBI shall be enforceable against the Lease
SUBI Portfolio or the Fleet Receivable SUBI only, as applicable, and not
against any other SUBI Portfolio or the UTI Portfolio and (ii) the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to any other SUBI (used
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in this paragraph as defined in the Origination Trust Agreement), any other
SUBI Portfolio (used in this paragraph as defined in the Origination Trust
Agreement), 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 from or with respect to the Lease SUBI or
Fleet Receivable SUBI, respectively, in respect of such claim, (d)(i) no
creditor or holder of a claim relating to the Lease SUBI, the Fleet Receivable
SUBI or the Lease SUBI Portfolio 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, and (e) any purchaser, assignee or pledgee of an
interest in the Lease SUBI, the Lease SUBI Certificate, the Fleet Receivable
SUBI, the Lease SUBI Certificate, the Fleet Receivable SUBI Certificate, any
other SUBI, any other SUBI Certificate (used in this Section as defined in the
Origination Trust Agreement), the UTI or the UTI Certificate must, prior to or
contemporaneously with the grant of any such assignment, pledge or security
interest, (i) give to the Origination Trust a non-petition covenant
substantially similar to that set forth in Section 6.9 of the Origination
Trust Agreement, and (ii) execute an agreement for the benefit of each holder,
assignee or pledgee from time to time of the UTI or UTI Certificate and any
other SUBI or SUBI Certificate to release all claims to the assets of the
Origination Trust allocated to the UTI and each other SUBI Portfolio and in
the event that such release is not given effect, to fully subordinate all
claims it may be deemed to have against the assets of the Origination Trust
allocated to the UTI Portfolio and each other SUBI Portfolio.
Each Class A-2 Investor Noteholder or Class A-2 Investor Note Owner,
by acceptance of a Class A-2 Investor Note or, in the case of a Class A-2
Investor Note Owner, a beneficial interest in a Class A-2 Investor Note,
covenants and agrees that by accepting the benefits of the Indenture that such
Class A-2 Investor Noteholder or Class A-2 Investor Note Owner will not
institute against, or join with any other Person in instituting against, the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings, under any Federal or state bankruptcy or
similar law.
It is the intent of the Issuer, each Class A-2 Investor Noteholder
and each Class A-2 Investor Note Owner that, for Federal, state and local
income and franchise tax purposes only, the Class A-2 Investor Notes will
evidence indebtedness of the Issuer secured by the Series 2001-1 Collateral.
Each Class A-2 Investor Noteholder and each Class A-2 Investor Note Owner, by
the acceptance of this Class A-2 Investor Note, agrees to treat this Class A-2
Investor Note for purposes of Federal, state and local income and franchise
taxes and any other tax imposed on or measured by income, as indebtedness of
the Issuer.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Series 2001-1 Investor Notes
under the Indenture at any time by the Issuer with the consent of the Holders
of a Majority in Interest of the Series 2001-1 Investor Notes affected by such
amendment or modification. The Indenture also contains provisions permitting
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the Holders of Series 2001-1 Investor Notes representing specified percentages
of the aggregate outstanding amount of the Series 2001-1 Investor Notes, on
behalf of the Holders of all the Series 2001-1 Investor Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Class A-2 Investor Note (or any one or more
predecessor Class A-2 Investor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Class A-2 Investor Note and of
any Class A-2 Investor Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of such consent
or waiver is made upon this Class A-2 Investor Note. The Indenture also
permits the Indenture Trustee to amend or waive certain terms and conditions
set forth in the Indenture without the consent of Holders of the Series 2001-1
Investor Notes issued thereunder.
The term "Issuer" as used in this Class A-2 Investor Note includes
any successor to the Issuer under the Indenture.
The Class A-2 Investor Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations set
forth therein.
This Class A-2 Investor Note and the Indenture shall be
governed by, and construed in accordance with, the law of the State of New
York, and the obligations, rights and remedies of the parties hereunder and
thereunder shall be determined in accordance with such law.
No reference herein to the Indenture and no provision of this Class
A-2 Investor Note or of the Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Class A-2 Investor Note at the times, place and rate, and in
the coin or currency herein prescribed.
Interests in this Global Note may be exchanged for Definitive Notes,
subject to the provisions of the Indenture.
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
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(name and address of assignee)
the within Class A-2 Investor Note and all rights thereunder, and hereby
irrevocably constitutes and appoints ____________________, attorney, to
transfer said Class A-1 Investor Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:__________________ By:_______________________(2)
Signature Guaranteed:
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(2) NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Class
A-2 Investor Note, without alteration, enlargement or any change
whatsoever.
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