Exhibit 10.2
X.X. XXXXXXXX TRUST
SOLD SUBI SUPPLEMENT 1999-1A
TO ORIGINATION TRUST AGREEMENT
among
RAVEN FUNDING LLC,
as Settlor and Initial Beneficiary
PHH VEHICLE MANAGEMENT SERVICES LLC,
as UTI Trustee and Servicer
and
WILMINGTON TRUST COMPANY,
as Delaware Trustee and SUBI Trustee
Dated as of June 30, 1999
TABLE OF CONTENTS
Page
PART X DEFINITIONS; THIRD-PARTY BENEFICIARIES . . . . . . . 5
Section 10.1 Definitions . . . . . . . . . . . . . . . . . . . . . . 5
Section 10.2. Rights in Respect of 1999-1A Sold SUBI . . . . . . . . . 5
PART XI CREATION OF THE 1999-1A SOLD SUBI . . . . . . . . 5
Section 11.1. Initial Creation of 1999-1A Sold SUBI Portfolio and
1999-1A Sold SUBI . . . . . . . . . . . . . . . . . . 5
Section 11.2. Subsequent Additions to the 1999-1A Sold SUBI Portfolio . 6
Section 11.3. Issuance and Form of the 1999-1A Sold SUBI Certificate . 8
Section 11.4. Filings; Termination of 1999-1A Sold SUBI; Related
Matters . . . . . . . . . . . . . . . . . . . . . . . 8
Section 11.5. Acceptance by SUBI Trustee . . . . . . . . . . . . . . . 9
Section 11.6. Representations and Warranties of the SUBI Trustee . . . 9
Section 11.7. Merger and Consolidation of Origination Trustees. . . . .10
PART XII ORIGINATION TRUST FEES AND EXPENSES. . . . . . . .10
Section 12.1. Origination Trust Fees and Expenses . . . . . . . . . . .10
PART XIII ASSIGNMENT OF THE 1999-1A SOLD SUBI . . . . . . .11
Section 13.1. Assignment. . . . . . . . . . . . . . . . . . . . . . . .11
PART XIV MISCELLANEOUS PROVISIONS . . . . . . . . . .11
Section 14.1. Amendment, Etc. . . . . . . . . . . . . . . . . . . . . .11
Section 14.2. Governing Law . . . . . . . . . . . . . . . . . . . . . .12
Section 14.3. Notices . . . . . . . . . . . . . . . . . . . . . . . . .12
Section 14.4. Severability of Provisions . . . . . . . . . . . . . . .13
Section 14.5. Effect of 1999-1A Sold SUBI Supplement on
Origination Trust Agreement and Transaction
Documents . . . . . . . . . . . . . . . . . . . . . .13
Section 14.6. Series Liability. . . . . . . . . . . . . . . . . . . . .14
Section 14.7. No Petition: Release of Claims. . . . . . . . . . . . . .15
Schedule I - Description of 1999-1A SUBI Assets
Exhibit A - Form of 1999-1A Sold SUBI Certificate
Exhibit B - Form of Assignment Agreement
Exhibit C - Form of Officer's Certificate
- i -
SOLD SUBI SUPPLEMENT 1999-1A
TO ORIGINATION TRUST AGREEMENT
THIS SOLD SUBI SUPPLEMENT 1999-1A TO ORIGINATION TRUST AGREEMENT
(the "1999-1A Sold SUBI Supplement") is dated and effective as of June 30,
1999, among RAVEN FUNDING LLC ("SPV" or, in its capacity as settlor, the
"Settlor", or in its capacity as initial beneficiary, the "Initial
Beneficiary"), PHH VEHICLE MANAGEMENT SERVICES LLC, a Delaware limited
liability company ("VMS"), as UTI Trustee (in such capacity, together with
any successor or permitted assign, the "UTI Trustee") and as Servicer (in
such capacity, together with any successor or permitted assign, the
"Servicer") and WILMINGTON TRUST COMPANY, as Delaware Trustee (in such
capacity, together with any successor or permitted assign, the "Delaware
Trustee"), and as trustee with respect to the 1999-1A Sold SUBI (in such
capacity, together with any successor or permitted assign, the "SUBI
Trustee"; together with the UTI Trustee and the Delaware Trustee, the
"Origination Trustees").
RECITALS
A. The Settlor, the UTI Trustee and the Delaware Trustee have
entered into that certain Amended and Restated Origination Trust Agreement
dated as of June 30, 1999 (as modified, supplemented or amended from time to
time, the "Origination Trust Agreement") pursuant to which the Settlor
continued the X.X. Xxxxxxxx Trust, formerly a Maryland common law trust, as a
Delaware business trust (the "Origination Trust"), for the purpose of acting
as agent and nominee owner of various Trust Assets in accordance with the
Origination Trust Agreement.
B. The Origination Trust, the Settlor and VMS, as Servicer, also
have entered into that certain Servicing Agreement dated as of June 30, 1999
(as modified, supplemented or amended from time to time, the "Servicing
Agreement"), which provides, among other things, for the servicing of the
Trust Assets by the Servicer.
C. The Origination Trust Agreement contemplates that, from time
to time, the UTI Trustee, on behalf of the Origination Trust and at the
direction of the Initial Beneficiary, will identify and allocate on the
Origination Trust's books and records certain Trust Assets from the Undivided
Trust Interest to separate SUBI Portfolios (as defined in the Origination
Trust Agreement) and create and issue Certificates to the Initial Beneficiary
representing separate special units of beneficial interest in the Origination
Trust or "SUBIs" (as defined in the Origination Trust Agreement), the
beneficiary or beneficiaries of which generally will hold undivided
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beneficial interests in the related SUBI Portfolios (as defined in the
Origination Trust Agreement), all as set forth in the Origination Trust
Agreement.
D. The parties hereto desire to supplement the terms of the
Origination Trust Agreement (i) to cause the UTI Trustee to identify and
allocate Trust Assets to a SUBI Portfolio (the "1999-1A Sold SUBI
Portfolio"), and (ii) to create and issue to the Initial Beneficiary a SUBI
Certificate (as defined in the Origination Trust Agreement) (such SUBI
Certificate, together with any replacements thereof, the "1999-1A Sold SUBI
Certificate"), that will evidence the entire and exclusive beneficial
interest in the related SUBI (the "1999-1A Sold SUBI"), and (iii) to set
forth the terms and conditions thereof.
E. Concurrently herewith, the Initial Beneficiary, the UTI
Trustee, the Servicer, the Delaware Trustee and the SUBI Trustee are entering
into a separate SUBI supplement (the "1999-1B SUBI Supplement") to create and
issue to SPV two separate 1999-1B SUBI Certificates (the "1999-1B SUBI
Certificates"), which collectively evidence the entire and exclusive
beneficial interest in the 1999-1B SUBI consisting of the Fleet Receivables
and the Trust Assets associated therewith (the "1999-1B SUBI").
F. Concurrently herewith, SPV is transferring all of its right,
title and interest in and to the 1999-1A Sold SUBI, the 1999-1A Sold SUBI
Certificate, the portion of the 1999-1B SUBI represented by the Class X
1999-1B Sold SUBI Certificate (as defined in the 1999-1B Sold SUBI
Supplement), and the Class X 1999-1B Sold SUBI Certificate to Issuer pursuant
to the Transfer Agreement.
G. Issuer will issue (i) debt securities pursuant to an Indenture
dated as of June 30, 1999 (the "Indenture") between the Issuer and The Chase
Manhattan Bank, as indenture trustee (the "Indenture Trustee"), and (ii)
preferred membership interests in the Issuer pursuant to the LLC Agreement
and will use the proceeds thereof on the date hereof to satisfy certain
claims on the Trust Assets allocated to the 1999-1A Sold SUBI and to make a
distribution to the Initial Beneficiary and thereafter will use the proceeds
thereof to fund the acquisition of subsequent additions to the 1999-1A Sold
SUBI Portfolio.
H. Also concurrently herewith, the Origination Trust, the Settlor
and the Servicer are entering into that certain 1999-1 Sold SUBI Supplement
to Servicing Agreement (the "1999-1 Sold SUBI Servicing Supplement") pursuant
to which, among other things, the terms of the Servicing Agreement will be
supplemented insofar as they apply to the 1999-1A Sold SUBI Portfolio and the
Trust Assets allocated to the 1999-1B SUBI, providing for specific servicing
obligations that will benefit the Issuer, as the holder of the 1999-1A Sold
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SUBI Certificate and the Class X 1999-1B Sold SUBI Certificate and SPV, as
the holder of the Class Y 1999-1B Sold SUBI Certificate and related matters.
PART X
DEFINITIONS; THIRD-PARTY BENEFICIARIES
Section 10.1 Definitions. For all purposes of this 1999-1A Sold
SUBI Supplement, except as otherwise provided or unless the context otherwise
requires, (a) all capitalized terms used herein which are not defined herein
and which are defined in the Origination Trust Agreement shall have the
meanings attributed to them by the Origination Trust Agreement, (b) all
capitalized terms used herein which are not defined herein or in the
Origination Trust Agreement and which are defined in the Indenture shall have
the meanings attributed to them by the Indenture, (c) all references to words
such as "herein," "hereof" and the like shall refer to this 1999-1A Sold SUBI
Supplement as a whole and not to any particular article or section within
this 1999-1A Sold SUBI Supplement, (d) the term "include" and all variations
thereon shall mean "include without limitation", and (e) the term "or" shall
include "and/or".
Section 10.2. Rights in Respect of 1999-1A Sold SUBI. The holder
and pledgees of the 1999-1A Sold SUBI Certificate (including the SPV, the
Issuer and the Indenture Trustee, on behalf of the Investor Noteholders) and
their respective successors and permitted assigns are third-party
beneficiaries of the Origination Trust Agreement and this 1999-1A Sold SUBI
Supplement, insofar as they apply to the 1999-1A Sold SUBI and said holders
or pledgees. Therefore, to that extent, references in the Origination Trust
Agreement and herein to the ability of any "holder of a SUBI Certificate",
"pledgee or assignee of a SUBI Certificate" or the like to take any action
shall be deemed to refer to the Issuer acting with the consent or upon the
instruction of the Indenture Trustee during such time as any Investor Note
shall remain outstanding and, if no Investor Notes remain outstanding, shall
be deemed to refer to the Issuer acting in accordance with the LLC Agreement.
PART XI
CREATION OF THE 1999-1A SOLD SUBI
Section 11.1. Initial Creation of 1999-1A Sold SUBI Portfolio and
1999-1A Sold SUBI. (a) Pursuant to Section 4.2(a) of the Origination Trust
Agreement, the Initial Beneficiary hereby directs the UTI Trustee to identify
and allocate or cause to be identified and allocated on the books and records
of the Origination Trust an initial separate portfolio of SUBI Assets (as
defined in the Origination Trust Agreement) consisting of those Master Lease
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Agreements listed on Schedule I, all Leases entered into under those Master
Lease Agreements as of the Initial Cut-off Date, all Leased Vehicles subject
to those Leases and all Paid-In Advance Vehicles relating to those Master
Lease Agreements and those Consumer Leases listed on Schedule I and all
Leased Vehicles subject to these Consumer Leases (each, a "1999-1A Sold SUBI
Asset"), and all Trust Assets to the extent related thereto, including,
without limitation, the Initial Beneficiary's rights under the Contribution
Agreement and the Asset Sale Agreement related thereto (other than Trust
Assets described in clause (h) of the definition thereof). Based upon their
identification and allocation by the Initial Beneficiary pursuant to such
Schedule I, the UTI Trustee hereby identifies and allocates as 1999-1A Sold
SUBI Assets such portfolio of SUBI Assets, each such SUBI Asset to be
identified on the books and accounts of the Origination Trust as belonging
exclusively to the 1999-1A Sold SUBI Portfolio; provided that any Collections
received prior to the Initial Cut-off Date in respect of any such 1999-1A
Sold SUBI Asset identified on Schedule I shall not be allocated as a 1999-1A
Sold SUBI Asset and shall not belong to the 1999-1A Sold SUBI Portfolio.
(b) Also pursuant to Section 4.2(a) of the Origination Trust
Agreement, the UTI Trustee hereby creates a SUBI which shall be known as the
"1999-1A Sold SUBI" and which shall represent an exclusive and specific
beneficial interest solely in the 1999-1A Sold SUBI Portfolio.
(c) As required by Section 4.2(d) of the Origination Trust
Agreement, SPV has appointed Wilmington Trust Company as the SUBI Trustee for
the 1999-1A Sold SUBI and the 1999-1A Sold SUBI Portfolio.
Section 11.2. Subsequent Additions to the 1999-1A Sold SUBI
Portfolio. (a) Subject to the satisfaction of the conditions therefor set
forth in Section 11.2(d), the Initial Beneficiary, from time to time on any
date on which it acquires a Paid-In-Advance Vehicle that is, or is to become,
subject to a Master Lease Agreement identified on Schedule I hereto (as such
Schedule I may be amended from time to time as provided in Section 11.2(b)
below), shall assign such Paid-In-Advance Vehicle to the Origination Trust
pursuant to an Assignment Agreement in the form of Exhibit B hereto (the
"Assignment Agreement") and direct the UTI Trustee to identify on the books
of the Origination Trust, and allocate exclusively to the 1999-1A Sold SUBI
Portfolio as additional 1999-1A Sold SUBI Assets, such Paid-In-Advance
Vehicle, any Lease subsequently entered into by the Origination Trust with
respect to such Paid-In Advance Vehicle and all other unallocated Trust
Assets to the extent related thereto (other than Trust Assets described in
clause (h) of the definition thereof).
(b) Subject to the satisfaction of the conditions therefor set
forth in Section 11.2(d), the Initial Beneficiary may from time to time, on
or after any date on which the Origination Trust enters into a Master Lease
Agreement direct the UTI Trustee to identify on the books and records of the
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Origination Trust, and allocate exclusively to the 1999-1A Sold SUBI
Portfolio as additional 1999-1A Sold SUBI Assets, such Master Lease Agreement
and all other unallocated Trust Assets to the extent related thereto (other
than Trust Assets described in clause (h) of the definition thereof). In
connection with any allocation of a Master Lease Agreement and the related
Trust Assets to the 1999-1A Sold SUBI Portfolio, the UTI Trustee shall amend
Schedule I hereto to add such Master Lease Agreement and the related Trust
Assets.
(c) Subject to the satisfaction of the conditions therefor set
forth in Section 11.2(d), the Initial Beneficiary may from time to time, on
or after any date on which the Origination Trust enters into a Consumer
Lease, assign all of its right, title and interest in and to such Consumer
Lease and the Leased Vehicle then subject thereto to the Origination Trust
pursuant to an Assignment Agreement and direct the UTI Trustee to identify on
the books and records of the Origination Trust, and allocate exclusively to
the 1999-1A Sold SUBI Portfolio as additional 1999-1A Sold SUBI Assets, such
Consumer Lease and such Leased Vehicle, and all other unallocated Trust
Assets to the extent related thereto (other than Trust Assets described in
clause (h) of the definition thereof). In connection with any allocation of
a Consumer Lease and the related Trust Assets to the 1999-1A Sold SUBI
Portfolio, the UTI Trustee shall amend Schedule I hereto to add such Consumer
Lease and the related Trust Assets.
(d) Each identification and allocation to the 1999-1A Sold SUBI
Portfolio of a Paid-In Advance Vehicle pursuant to Section 11.2(a), a Master
Lease Agreement and the related Trust Assets pursuant to Section 11.2(b) or a
Consumer Lease and the related Trust Assets pursuant to Section 11.2(c) shall
be subject to the prior satisfaction of the following conditions:
(i) In the case of an identification and allocation of a Paid-In-
Advance Vehicle pursuant to Section 11.2(a), the Master Lease Agreement
under which such Paid-In-Advance is being acquired shall not be an
Ineligible Delinquent Lease and the Initial Beneficiary shall have
delivered to the UTI Trustee and the SUBI Trustee, with a copy to the
Indenture Trustee, the Assignment Agreement with respect to such Paid-In-
Advance Vehicle;
(ii) In the case of an identification and allocation of a Master
Lease Agreement and the related Trust Assets pursuant to Section
11.2(b), the Servicer shall have delivered to SPV, the Issuer and the
Indenture Trustee a certification as of the date of such allocation of
an Authorized Officer with respect to such Master Lease Agreement
substantially to the effect set forth in Exhibit C;
(iii) In the case of an identification and allocation of a
Consumer Lease and the related Trust Assets pursuant to Section 11.2(c),
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(A) the Initial Beneficiary shall have delivered to the UTI Trustee and
the SUBI Trustee, with a copy to the Indenture Trustee, the Assignment
Agreement with respect to the Leased Vehicle relating to such Consumer
Lease and (B) the Servicer shall have delivered to the SPV, the Issuer
and the Indenture Trustee a certification as of the date of such
allocation of an Authorized Officer with respect to such Consumer Lease
substantially to the effect set forth in Exhibit C; and
(iv) No Transfer Termination Event shall have occurred and be
continuing.
Section 11.3. Issuance and Form of the 1999-1A Sold SUBI
Certificate. (a) The 1999-1A Sold SUBI shall be represented by the 1999-1A
Sold SUBI Certificate which shall represent an exclusive 100% beneficial
interest in the 1999-1A Sold SUBI and the 1999-1A Sold SUBI Portfolio, as
further set forth herein. The 1999-1A Sold SUBI Certificate shall be
substantially in the form of Exhibit A attached hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required by
this 1999-1A Sold SUBI Supplement and may have such letters, numbers or other
marks of identification and such legends and endorsements placed thereon as
may, consistently herewith and with the Origination Trust Agreement, be
directed by the Initial Beneficiary. Any portion of the 1999-1A Sold SUBI
Certificate may be set forth on the reverse thereof. The 1999-1A Sold SUBI
Certificate shall be printed, lithographed, typewritten, photocopied or
otherwise produced or may be produced in any other manner as may,
consistently herewith and with the Origination Trust Agreement, be determined
by the Initial Beneficiary. The 1999-1A Sold SUBI Certificate shall be
initially registered in the name of the Issuer.
(b) As required by Section 4.2(b) of the Origination Trust
Agreement, the 1999-1A Sold SUBI Certificate shall contain an express written
release and subordination of any claim by any holder thereof to any proceeds
or assets of the Origination Trust other than those from time to time
included within the 1999-1A Sold SUBI Portfolio.
Section 11.4. Filings; Termination of 1999-1A Sold SUBI; Related
Matters. (a) The Settlor, the UTI Trustee and the SUBI Trustee will
undertake all other and future actions and activities as may be required by
the Servicer to perfect (or evidence) and confirm the foregoing allocations
of SUBI Assets to the 1999-1A Sold SUBI Portfolio, including filing or
causing to be filed UCC financing statements and executing and delivering all
related filings, documents or writings as may be deemed reasonably necessary
by the Servicer hereunder or under any of the Transaction Documents and as
are presented to them in final execution form; provided, however, that in no
event will the Settlor, the Servicer or any Origination Trustee be required
to take any action to change the Person listed as owner or lienholder on the
Certificate of Title for any Leased Vehicle allocated to the 1999-1A Sold
6
SUBI Portfolio. The Settlor hereby irrevocably makes and appoints each of
the SUBI Trustee and the Servicer, and any of their respective officers,
employees or agents, as the true and lawful attorney-in-fact of the Settlor
(which appointment is coupled with an interest and is irrevocable) with power
to sign on behalf of the Settlor any financing statements, continuation
statements, security agreements, mortgages, assignments, affidavits, letters
of authority, notices or similar documents necessary or appropriate to be
executed or filed pursuant to this Section.
(b) If all of the Sold Units have been liquidated into cash and
all of such cash shall have been distributed in accordance with the 1999-1A
Sold SUBI Servicing Supplement, then at the direction of the Initial
Beneficiary the 1999-1A Sold SUBI shall be terminated and the 1999-1A Sold
SUBI Certificate shall be returned to the SUBI Trustee and canceled thereby
and all 1999-1A Sold SUBI Assets shall be allocated to the UTI.
Section 11.5. Acceptance by SUBI Trustee. The SUBI Trustee shall
have the rights, powers and duties set forth herein and in the Origination
Trust Agreement with respect to the 1999-1A Sold SUBI. Pursuant to Section
3.1(c) of the Origination Trust Agreement, the SUBI Trustee hereby accepts
its appointment as SUBI Trustee with respect to the 1999-1A Sold SUBI
hereunder and agrees to act as a trustee of the Origination Trust for the
benefit of the holder or holders of each 1999-1A Sold SUBI Certificate in
accordance with the terms of this 1999-1A Sold SUBI Supplement and the
Origination Trust Agreement
Section 11.6. Representations and Warranties of the SUBI Trustee.
The SUBI Trustee hereby makes the following representations and warranties on
which the Settlor and Initial Beneficiary, each of their permitted assignees
and pledgees, and each pledgee or holder of the 1999-1A Sold SUBI Certificate
may rely:
(a) Organization and Good Standing. The SUBI Trustee is a banking
corporation, duly organized, validly existing and in good standing under
the laws of the State of Delaware.
(b) Power and Authority. The SUBI Trustee has full power,
authority and right to execute, deliver and perform this 1999-1A Sold
SUBI Supplement and has taken all necessary action to authorize the
execution, delivery and performance by it of this 1999-1A Sold SUBI
Supplement.
(c) Due Execution. This 1999-1A Sold SUBI Supplement has been
duly executed and delivered by the SUBI Trustee, and this 1999-1A Sold
SUBI Supplement and the Origination Trust Agreement are legal, valid and
binding instruments enforceable against the SUBI Trustee in accordance
with their respective terms, except as such enforceability may be
7
limited by bankruptcy, insolvency and other similar laws relating to the
enforcement of creditors' rights generally and to general principles of
equity.
(d) No Conflict. Neither the execution and delivery of this
1999-1A Sold SUBI Supplement nor the consummation of the transactions
herein contemplated, nor compliance with the provisions hereof, will
conflict with or result in a breach of, or constitute a default (with
notice or passage of time or both) under any provision of any law,
governmental rule, regulation, judgment, decree or order of any
Governmental Authority in the State of Delaware binding on the SUBI
Trustee or the charter or bylaws of the SUBI Trustee or any provision of
any mortgage, indenture, contract, agreement or other instrument to
which the SUBI Trustee is a party or by which it is bound. No consent,
approval or authorization of, or filing, registration or qualification
with, or the giving of notice or the taking of any other action with
respect to, any Governmental Authority of the State of Delaware is
required on the part of the SUBI Trustee in connection with the
execution, delivery and performance by the SUBI Trustee of the
Origination Trust Agreement, the Servicing Agreement, the 1999-1A Sold
SUBI Servicing Supplement and this 1999-1A Sold SUBI Supplement.
(e) Location of Records. The office where the SUBI Trustee keeps
its records concerning the transactions contemplated hereby is located
at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
Section 11.7. Merger and Consolidation of Origination Trustees.
Each Origination Trustee shall give notice to the Initial Beneficiary, the
Servicer, SPV, the Issuer, and the Indenture Trustee within 30 days after
effecting any merger, consolidation, or other transaction set forth in
Section 6.5 of the Origination Trust Agreement.
PART XII
ORIGINATION TRUST FEES AND EXPENSES
Section 12.1. Origination Trust Fees and Expenses.
Notwithstanding Sections 5.5, 6.8 or 7.1 or any other provision of the
Origination Trust Agreement, the rights of the Origination Trustees to
receive fees or be indemnified or reimbursed for expenses incurred in
connection with or allocated to the 1999-1A Sold SUBI out of the 1999-1A Sold
SUBI Assets shall be paid by the Servicer pursuant to Section 7.5 of the
1999-1 Sold SUBI Servicing Supplement.
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PART XIII
ASSIGNMENT OF THE 1999-1A SOLD SUBI
Section 13.1. Assignment. The parties to this 1999-1A Sold SUBI
Supplement hereby acknowledge and consent to (i) the transfer, pledge,
assignment by SPV to the Issuer pursuant to the Transfer Agreement of all of
the SPV's right, title and interest in and to the 1999-1A Sold SUBI and the
1999-1A Sold SUBI Certificate and (ii) the pledge, assignment and grant of a
security interest by the Issuer to the Indenture Trustee for the benefit of
the Investor Noteholders pursuant to the Indenture of all of the Issuer's
right, title and interest in the 1999-1A Sold SUBI and the 1999-1A Sold SUBI
Certificate.
PART XIV
MISCELLANEOUS PROVISIONS
Section 14.1. Amendment, Etc. (a) Notwithstanding Section 9.1 of
the Origination Trust Agreement, the Origination Trust Agreement, as
supplemented by this 1999-1A Sold SUBI Supplement, to the extent that it
deals solely with the 1999-1A Sold SUBI and the 1999-1A Sold SUBI Portfolio,
may be amended only in accordance with this Section 14.1.
(b) The Origination Trust Agreement or this 1999-1A Sold SUBI
Supplement may be amended by SPV with the consent of the Origination
Trustees, but without the consent of any other Person, to correct any
inconsistency or cure any ambiguity or errors in the Origination Trust
Agreement or this 1999-1A Sold SUBI Supplement only in a manner which would
have no adverse effect on any holder of the 1999-1A Sold SUBI Certificate or
any pledgee or assignee thereof.
(c) The Origination Trust Agreement or this 1999-1A Sold SUBI
Supplement may be amended in any respect from time to time by SPV, with the
consent of the Origination Trustees (to the extent adversely affected
thereby) and the holder of the 1999-1A Sold SUBI Certificate and each pledgee
or assignee thereof.
(d) Prior to the execution of any such amendment or consent, the
Servicer shall furnish at least five (5) Business Days prior written
notification of the substance of such amendment or consent (together with a
copy of the related Opinion of Counsel) to each Rating Agency with respect to
each Series of Investor Notes and each series of Preferred Membership
Interests; provided that the Servicer shall have no obligation to furnish any
such Rating Agency with prior written notice of the substance of any
amendment or consent to the Origination Trust Agreement. No later than ten
(10) Business Days after the execution of any such amendment or consent, the
Servicer shall furnish a copy of such amendment or consent to each Rating
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Agency with respect to each Series of Investor Notes and each series of
Preferred Membership Interests, the Issuer and the Indenture Trustee.
(e) Prior to the execution of any amendment to the Origination
Trust Agreement or this 1999-1A Sold SUBI Supplement, the Issuer and the
Indenture Trustee shall be entitled to receive and conclusively rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized
or permitted by the Origination Trust Agreement or this 1999-1A Sold SUBI
Supplement and that all conditions precedent to the execution and delivery of
such amendment have been satisfied.
Section 14.2. Governing Law. THIS 1999-1A SOLD SUBI SUPPLEMENT
SHALL BE CREATED UNDER AND GOVERNED BY AND CONSTRUED UNDER THE INTERNAL LAWS
OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE
PRINCIPLES OF CONFLICTS OF LAWS.
Section 14.3. Notices. The notice provisions of Section 9.3 of
the Origination Trust Agreement shall apply equally to this 1999-1A Sold SUBI
Supplement. All demands, notices and communications under this 1999-1A Sold
SUBI Supplement or the Origination Trust Agreement shall be in writing and
shall be delivered or mailed by registered or certified first class United
States mail, postage prepaid, return receipt requested; hand delivery;
prepaid courier service; or telecopier, and;
(i) if to the SUBI Trustee, addressed to:
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
(at Telecopier No. 302-651-8882)
or at such other address as shall be designated by such Person to the
other parties hereto;
(ii) if to the Initial Beneficiary, addressed to:
RAVEN FUNDING LLC
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telecopier: 000-000-0000
or at such other address as shall be designed by the holder of the
1999-1A Sold SUBI Certificate to the other parties hereto; and
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(iii) if to the Indenture Trustee, addressed to:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Capital Markets Fiduciary Services
(iv) if to the Issuer, addressed to:
Greyhound Funding LLC
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telecopier: 000-000-0000
or at such other address as shall be designated by such Person to the
parties hereto.
Section 14.4. Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this 1999-1A Sold SUBI
Supplement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this 1999-1A Sold
SUBI Supplement and shall in no way affect the validity or enforceability of
the other provisions of this 1999-1A Sold SUBI Supplement or of the 1999-1A
Sold SUBI Certificate or the rights of the holder thereof. To the extent
permitted by law, the parties hereto waive any provision of law that renders
any provision of this 1999-1A Sold SUBI Supplement invalid or unenforceable
in any respect.
Section 14.5. Effect of 1999-1A Sold SUBI Supplement on
Origination Trust Agreement and Transaction Documents. (a) Except as
otherwise specifically provided herein: (i) the parties shall continue to be
bound by all provisions of the Origination Trust Agreement; and (ii) the
provisions set forth herein shall operate either as additions to or
modifications of the obligations of the parties under the Origination Trust
Agreement, as the context may require. In the event of any conflict between
the provisions of this 1999-1A Sold SUBI Supplement and the Origination Trust
Agreement with respect to the 1999-1A Sold SUBI, the provisions of this
1999-1A Sold SUBI Supplement shall prevail.
(b) For purposes of determining the parties' obligations under
this 1999-1A Sold SUBI Supplement with respect to the 1999-1A Sold SUBI,
general references in the Origination Trust Agreement to: (i) the SUBI
Portfolio shall be deemed to refer more specifically to the 1999-1A Sold SUBI
Portfolio; (ii) the SUBI Supplement shall be deemed to refer more
specifically to this 1999-1A Sold SUBI Supplement; and (iii) the SUBI
Servicing Agreement Supplement shall be deemed to refer more specifically to
the 1999-1 Sold SUBI Servicing Supplement.
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(c) Anything contained in the Origination Trust Agreement to the
contrary notwithstanding (including, without limitation, Section 5.5
thereof), no Origination Trustee that is an Affiliate of VMS shall be
entitled to any indemnification out of any 1999-1A Sold SUBI Assets for any
matter for which VMS or any Affiliate of VMS shall have indemnified SPV or
shall otherwise be responsible under the Transaction Documents.
Section 14.6. Series Liability. Each party hereto represents,
warrants and covenants (and each holder or pledgee of the 1999-1A Sold SUBI,
by virtue of its acceptance of such 1999-1A Sold SUBI or pledge thereof
represents, warrants and covenants) that (a) the 1999-1A Sold 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. Sec. 3801, et seq.,
(b)(i) the debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to the 1999-1A Sold SUBI or the
1999-1A Sold SUBI Portfolio shall be enforceable against the 1999-1A Sold
SUBI Portfolio only, and not against any other SUBI Assets or the UTI
Portfolio and (ii) the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to any other SUBI, any
other SUBI Portfolio, 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 or specified in the Origination Trust Agreement or in this 1999-1A Sold
SUBI Supplement, UTI Assets or SUBI Assets with respect to any SUBI (other
than the 1999-1A Sold SUBI) shall not be subject to the claims, debts,
liabilities, expenses or obligations arising from or with respect to the
1999-1A Sold SUBI in respect of such claim, (d)(i) no creditor or holder of a
claim relating to assets allocated to the 1999-1A Sold SUBI or the 1999-1A
Sold 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
1999-1A Sold SUBI or any SUBI Assets other than the 1999-1A Sold SUBI
Portfolio shall be entitled to maintain any action against or recover any
assets allocated to the 1999-1A Sold SUBI, and (e) any purchaser, assignee or
pledgee of an interest in the 1999-1A Sold SUBI, the 1999-1A Sold SUBI
Certificate, any other SUBI, any other SUBI Certificate, 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
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the Origination Trust allocated to the UTI Portfolio and each other SUBI
Portfolio.
Section 14.7. No Petition: Release of Claims. With respect to
each Special Purpose Entity, each party hereto (and each holder and pledgee
of the 1999-1A Sold SUBI, by virtue of its acceptance of such SUBI or pledge
thereof) agrees that, prior to the date which is one year and one day after
payment in full of all obligations under each Securitization (i) no party
hereto shall authorize such Special Purpose Entity to commence a voluntary
winding-up or other voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to such Special Purpose Entity or
its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect in any jurisdiction or seeking the appointment of an
administrator, a trustee, receiver, liquidator, custodian or other similar
official with respect to such Special Purpose Entity or any substantial part
of its property or to consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against such Special Purpose Entity or to make a general
assignment for the benefit of any party hereto or any other creditor of such
Special Purpose Entity, and (ii) none of the parties hereto shall commence or
join with any other Person in commencing any proceeding against such Special
Purpose Entity under any bankruptcy, reorganization, liquidation or
insolvency law or statute now or hereafter in effect in any jurisdiction.
Each of the parties hereto agrees that, prior to the date which is one year
and one day after the payment in full of all obligations under each
Securitization, it will not institute against, or join any other Person in
instituting against, any Special Purpose Entity an action in bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or similar
proceeding under the laws of the United States or any State of the United
States.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the Settlor and the Trustees have caused this
1999-1A Sold SUBI Supplement to be duly executed by their respective officers
as of the day and year first above written.
RAVEN FUNDING LLC,
as Settlor and Initial Beneficiary
By: /s/ Xxxxx Sheehman
--------------------------------
Name: Xxxxx Sheehman
Title: Manager
PHH VEHICLE MANAGEMENT SERVICES LLC,
as UTI Trustee and Servicer
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Delaware Trustee and SUBI Trustee
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
14
EXHIBIT A
TO
1999-1A SOLD SUBI SUPPLEMENT
FORM OF 1999-1A SOLD SUBI CERTIFICATE
X.X. XXXXXXXX TRUST
1999-1A SOLD SPECIAL UNIT OF BENEFICIAL INTEREST CERTIFICATE
(This Certificate does not represent an obligation of, or an interest
in, PHH Vehicle Management Services LLC or any of its affiliates (other
than the Origination Trust (as defined below))).
Number-1
THIS CERTIFIES THAT GREYHOUND FUNDING LLC is the registered owner
of a 100% nonassessable, fully-paid, exclusive undivided beneficial interest
in the 1999-1A Sold SUBI Portfolio (such interest, a "1999-1A Sold SUBI
Interest"), of X.X. Xxxxxxxx Trust, a Delaware business trust (the
"Origination Trust"), formed by RAVEN FUNDING LLC, as settlor ("SPV" or, in
its capacity as settlor thereunder, and, together with any successor or
assign, the "Settlor"), PHH Vehicle Management Services LLC, as UTI Trustee
(the "UTI Trustee") and Servicer, and Wilmington Trust Company, as Delaware
trustee (the "Delaware Trustee"). The Origination Trust was created
pursuant to the Amended and Restated Origination Trust Agreement dated as of
June 30, 1999 (as modified, supplemented, or amended from time to time, the
"Origination Trust Agreement"), among SPV as the Settlor and as the sole
initial beneficiary (in such capacity, and, together with any successor or
permitted assign, the "Initial Beneficiary"), the UTI Trustee and the
Delaware Trustee, as supplemented for purposes hereof by that certain 1999-1A
Sold SUBI Supplement to the Origination Trust Agreement dated as of June 30,
1999 (the "1999-1A Sold SUBI Supplement") among the Settlor, the Initial
Beneficiary, the UTI Trustee, the Delaware Trustee and Wilmington Trust
Company, as the SUBI Trustee. To the extent not otherwise defined herein,
the capitalized terms herein have the meanings set forth in the Agreement.
This Certificate is the duly authorized certificate issued under
the Agreement and the 1999-1A Sold SUBI Supplement dated even date herewith,
and designated as "X.X. Xxxxxxxx Trust Sold Special Unit of Beneficial
Interest 1999-1A Certificate" (the "1999-1A Sold SUBI Certificate"). This
1
1999-1A Sold SUBI Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the holder of
this 1999-1A Sold SUBI Certificate by virtue of the acceptance hereof assents
and by which such holder is bound. Also to be issued under the Agreement are
various other series of Certificates, the first designated as "X.X. Xxxxxxxx
Trust Undivided Trust Interest Certificates" (the "Undivided Trust Interest
Certificates"), and the others each designated as "X.X. Xxxxxxxx Trust
Special Unit of Beneficial Interest Certificates" (the "SUBI Certificates"
and, together with the Undivided Trust Interest Certificates, the
"Certificates"). The Undivided Trust Interest Certificates, taken together,
evidence an exclusive, undivided interest in the assets of the Origination
Trust, other than SUBI Assets (each as defined in the Agreement); each other
series of SUBI Certificates, taken together, will evidence an exclusive
undivided interest in a separate SUBI Portfolio other than the 1999-1A Sold
SUBI Portfolio. This Certificate constitutes a "Security" as such term is
defined in the New York Uniform Commercial Code and the Delaware Uniform
Commercial Code.
The Certificates do not represent an obligation of, or an interest
in, the Settlor, any Trustee or any of their respective affiliates (other
than the Origination Trust). A copy of the Agreement may be examined during
normal business hours at the principal office of the Settlor or any Trustee,
and at such other places, if any, designated by the Settlor or any Trustee,
by the holder hereof upon request.
By accepting this Certificate, the holder hereof releases (or fully
subordinates, but only to the extent such release is not given effect) any
claim in respect of this Certificate to any proceeds or assets of the
Origination Trust and to all of the assets of the Origination Trust other
than those from time to time included within the 1999-1A Sold SUBI Portfolio
(the "1999-1A Sold SUBI Assets") and those proceeds or assets derived from or
earned by the 1999-1A Sold SUBI Assets.
Prior to due presentation of this Certificate for registration of a
permitted transfer, the Origination Trustee, the certificate registrar and
any of their respective agents may treat the person or entity in whose name
this Certificate is registered as the owner hereof for the purpose of
receiving distributions and for all other purposes, and, except as provided
for in the Agreement, neither the Origination Trustee, the certificate
registrar nor any such agent shall be affected by any notice to the contrary.
The holder of this Certificate covenants and agrees that prior to
the date which is one year and one day after the date upon which all
obligations under each Securitization have been paid in full, it will not
institute against, or join any other Person in instituting against, the
Origination Trust, the Initial Beneficiary, any Special Purpose Entity, or
any general partner of any Special Purpose Entity that is a partnership, any
2
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
or other proceedings under any federal or state bankruptcy or similar law.
No bankruptcy, reorganization arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy, insolvency or similar law shall be instituted by the Origination
Trust without the unanimous consent of all Trustees and Certificateholders
hereunder. A SUBI Trustee shall not so consent unless directed to do so by
the holder of the applicable SUBI and any assignee or pledgee thereof, and
the Delaware Trustee shall not so consent unless directed to do so by all of
the Certificateholders.
Unless this Certificate shall have been authenticated by an
authorized officer of the Delaware Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the
Agreement or be valid for any purpose.
3
IN WITNESS WHEREOF, the Delaware Trustee on behalf of the
Origination Trust and not in its individual capacity has caused this 1999-1A
Sold SUBI Certificate to be duly executed.
Dated: June 30, 1999
X.X. XXXXXXXX TRUST
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Delaware Trustee
By
-----------------------------
Authorized Officer
4
TRUSTEE"S CERTIFICATE OF AUTHENTICATION
This is the 1999-1A Sold SUBI Certificate referred to in the
within-mentioned 1999-1A Sold SUBI Supplement.
Dated: June 30, 1999
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Delaware Trustee
By
-----------------------------------
Authorized Officer
1
SCHEDULE I
Description of 1999-1A Sold SUBI Assets - Vehicles, Leases and
Related Master Lease Agreements.
See the computer tape delivered to the UTI Trustee and the
Indenture Trustee.
2
