EX-4.3 7 exh_4-3.txt SUPPLEMENTAL INDENTURE NO. 2 Exhibit 4.3 CHESAPEAKE FUNDING LLC, as Issuer and JPMORGAN CHASE BANK, as Indenture Trustee SUPPLEMENTAL INDENTURE No. 2 Dated as of May 27, 2003 to BASE INDENTURE Dated as of June 30, 1999 Asset Backed Notes (Issuable in Series) TABLE OF CONTENTS Page SECTION 1: CERTAIN DEFINED TERMS..............................................1 SECTION 2: AMENDMENT TO BASE INDENTURE........................................1 Section 2.1 Amendment to Section 3.2.....................................1 SECTION 3: REPRESENTATIONS AND WARRANTIES.....................................2 Section 3.1 Affirmation of Representations and Warranties................2 Section 3.2 LLC Agreement and Governmental Authorization.................2 Section 3.3 Binding Effect...............................................2 Section 3.4 No Consent...................................................3 SECTION 4: CONDITIONS PRECEDENT..............................................3 SECTION 5: MISCELLANEOUS.....................................................4 Section 5.1 Duplicate Originals..........................................4 Section 5.2 Ratification and Effect......................................4 Section 5.3 Severability of Provisions...................................4 Section 5.4 Counterparts.................................................4 Section 5.5 Table of Contents, Headings, etc.............................5 Section 5.6 Choice of Law................................................5 SUPPLEMENTAL INDENTURE No. 2, dated as of May 27, 2003 ("Supplemental Indenture"), to BASE INDENTURE, dated as of June 30, 1999, as supplemented by Supplemental Indenture No. 1, dated as of October 28, 1999, between CHESAPEAKE FUNDING LLC (formerly known as Greyhound Funding LLC), a special purpose, limited liability company established under the laws of Delaware (the "Issuer"), and JPMORGAN CHASE BANK, a New York banking corporation ("JPMorgan"), as trustee (in such capacity, the "Indenture Trustee"). W I T N E S S E T H: WHEREAS, the Issuer and JPMorgan are parties to a Base Indenture, dated as of June 30, 1999, as supplemented by Supplemental Indenture No. 1, dated as of October 28, 1999, (the "Base Indenture"); WHEREAS, the Issuer desires to amend the Base Indenture pursuant to Section 12.1(d) thereof to correct an inconsistency in certain provisions thereof; WHEREAS, the Issuer has duly authorized the execution and delivery of this Supplemental Indenture; and WHEREAS, JPMorgan, as Indenture Trustee, is willing to enter into this Supplemental Indenture. NOW, THEREFORE, for and in consideration of the premises, and other good and valuable consideration the receipt and sufficiency of which are acknowledged, it is mutually covenanted and agreed, that the Base Indenture be amended and supplemented as follows: SECTION 1: CERTAIN DEFINED TERMS Certain capitalized terms used herein, and not defined herein, shall have the respective meanings assigned to such terms in the Definitions List attached as Schedule 1 (the "Definitions List") to the Base Indenture, as such Definitions List may be hereafter further amended or modified from time to time. SECTION 2: AMENDMENT TO BASE INDENTURE Section 2.1 Amendment to Section 3.2. Section 3.2(c) of the Base Indenture is hereby amended and restated in its entirety as follows: "(c) Without derogating from the absolute nature of the assignment granted to the Indenture Trustee under this Indenture or the rights of the Indenture Trustee hereunder, the Issuer agrees that, unless such action is specifically permitted hereunder or under the other Transaction Documents, it will not, without the prior written consent of the Holders of a Majority in Interest of each Series of Outstanding Notes, (i) amend, modify, waive, supplement, terminate or surrender, or agree to any amendment, modification, supplement, termination, waiver or surrender of, the terms of any of the Issuer Assets, including any of the Transaction Documents; provided that no consent of Investor Noteholders shall be required for any amendment, modification or waiver of or to any Transaction Document if such amendment, modification or waiver does not adversely affect in any material respect the Noteholders of any Series of Investor Notes (as substantiated by an Opinion of Counsel to such effect) and provided further that the Rating Agency Condition is satisfied with respect to each affected Series of Investor Notes; or (ii) waive timely performance or observance by SPV under the Transfer Agreement or the Origination Trust, VMS or the Servicer under the Origination Trust Documents. Upon the occurrence of a Servicer Termination Event, the Issuer will not, without the prior written consent of the Indenture Trustee or the Holders of a Majority in Interest of each Series of Outstanding Notes, terminate the Servicer and appoint a successor Servicer in accordance with the Servicing Agreement and will terminate the Servicer and appoint a successor Servicer in accordance with the Servicing Agreement if so directed by the Indenture Trustee or the Holders of a Majority in Interest of each Series of Outstanding Notes." SECTION 3: REPRESENTATIONS AND WARRANTIES In order to induce the Indenture Trustee to agree to this Supplemental Indenture, the Issuer hereby represents and warrants, as follows, for the benefit of the Indenture Trustee and the Investor Noteholders, as of the date hereof. Section 3.1 Affirmation of Representations and Warranties. Each representation and warranty of the Issuer set forth in the Base Indenture and in each other Transaction Document to which it is a party, is true and correct as of the date of this Supplemental Indenture as though such representation or warranty were being made on and as of the date hereof and is hereby deemed repeated as though fully set forth herein. Section 3.2 LLC Agreement and Governmental Authorization. The execution, delivery and performance by the Issuer of this Supplemental Indenture (a) is within the Issuer's power, has been duly authorized by all necessary action, (b) requires no action by or in respect of, or filing with, any governmental body, agency or official which has not been obtained and (c) does not contravene, or constitute a default under, any Requirement of Law or any provision of applicable law, its certificate of formation or the LLC Agreement or of any law or governmental regulation, rule, contract, agreement, judgment, injunction, order, decree or other instrument binding upon the Issuer or any of the Issuer Assets or result in the creation or imposition of any Lien on any Issuer Asset except for Liens created by the Indenture or the other Transaction Documents. This Supplemental Indenture has been executed and delivered by a duly authorized officer of the Issuer. Section 3.3 Binding Effect. This Supplemental Indenture is a legal, valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms (except as such enforceability may be -2- limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally or by general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing). Section 3.4 No Consent. No consent, action by or in respect of, approval or other authorization of, or registration, declaration or filing with, any Governmental Authority or other Person is required for the valid execution and delivery of this Supplemental Indenture or for the performance of any of the Issuer's obligations hereunder other than such consents, approvals, authorizations, registrations, declarations or filings as were obtained by the Issuer prior to the date hereof. SECTION 4: CONDITIONS PRECEDENT This Supplemental Indenture shall become effective and shall be binding on each of the parties hereto upon the satisfaction or due waiver of each of the following conditions precedent: (i) The Indenture Trustee shall have received evidence satisfactory to it that each Manager of the Issuer has approved this Supplemental Indenture. (ii) The Indenture Trustee shall have received an Manager's Certificate of the Issuer, dated as of the date hereof, to the effect that (i) no Amortization Event, Potential Amortization Event, Event of Default or Potential Event of Default is continuing or will occur as a result of the execution and delivery of this Supplemental Indenture and (ii) the execution and delivery of this Supplemental Indenture will not result in any breach of any of the terms, conditions or provisions of or constitute a default under any indenture, mortgage, deed of trust or other agreement or instrument, including, without limitation, any Transaction Document, to which the Issuer is a party or by which it or its property is bound or any order of any court or administrative agency entered in any suit, action or other judicial or administrative proceeding to which the Issuer is party or by which it or its property may be bound or to which it or its property may be subject. (iii) The Indenture Trustee shall have received an Manager's Certificate of the Issuer, dated as of the date hereof, to the effect that all conditions precedent provided for in the Base Indenture with respect to the execution and delivery of this Supplemental Indenture have been complied with in all material respects; (iv) The Indenture Trustee shall have received an Opinion of Counsel, subject to the assumptions and qualifications stated therein, and in a form substantially acceptable to the Indenture Trustee, dated the date hereof, substantially to the effect that: (a) all conditions precedent provided for in the Base Indenture with respect to the execution and delivery of this Supplemental Indenture have been complied with in all material respects; -3- (b) the Issuer is duly organized under the jurisdiction of its formation and has the power and authority to execute and deliver this Supplemental Indenture; (c) this Supplemental Indenture has been duly authorized, executed and delivered by the Issuer; (d) the Supplemental Indenture constitutes the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law); and (e) such other matters as the Indenture Trustee may reasonably require. (v) The Indenture Trustee shall have received such other documents, instruments, certifications, agreements or other items as the Indenture Trustee may reasonably require. SECTION 5: MISCELLANEOUS Section 5.1 Duplicate Originals. The parties may sign any number of copies of this Supplemental Indenture. One signed copy is enough to prove this Supplemental Indenture. Section 5.2 Ratification and Effect. The Base Indenture, as amended and supplemented by this Supplemental Indenture No. 2, is in all respects ratified and confirmed, shall continue to be in full force and effect, and shall be read, taken and construed as one and the same instrument. Section 5.3 Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Supplemental Indenture shall for any reason whatsoever be held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Supplemental Indenture and shall in no way affect the validity of enforceability of the other provisions of this Supplemental Indenture. Section 5.4 Counterparts. This Supplemental Indenture may be executed in two or more counterparts (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument. -4- Section 5.5 Table of Contents, Headings, etc. The table of contents and headings of the Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof. Section 5.6 Choice of Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. -5- IN WITNESS WHEREOF, the Indenture Trustee and the Issuer have caused this Supplemental Indenture No. 2 to be duly executed by their respective duly authorized officers as of the day and year first written above. CHESAPEAKE FUNDING LLC, as Issuer By: /s/ Joseph W. Weikel ------------------------------ Manager JPMORGAN CHASE BANK, as Indenture Trustee By: /s/ Connie Cho ------------------------------ Trust Officer