Exhibit 4.44
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X.X. XXXXXXXX TRUST,
WILMINGTON TRUST COMPANY,
Not in its Individual Capacity
but Solely as SUBI Trustee,
RAVEN FUNDING LLC
and
PHH VEHICLE MANAGEMENT SERVICES LLC
as Servicer
SOLD SUBI SUPPLEMENT 1999-1 TO
SERVICING AGREEMENT
DATED AS OF JUNE 30,1999
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SOLD SUBI SUPPLEMENT 1999-1 TO
SERVICING AGREEMENT
THIS SOLD SUBI SUPPLEMENT 1999-1 TO SERVICING AGREEMENT (the "Sold SUBI
Servicing Supplement"), dated as of June 30, 1999, is among X.X. XXXXXXXX TRUST,
a Delaware business trust (the "Trust"), WILMINGTON TRUST COMPANY, a Delaware
banking corporation, not in its individual capacity but solely as a SUBI Trustee
(hereinafter, together with its successors and assigns, the "SUBI Trustee") of
the Trust, RAVEN FUNDING LLC, a Delaware limited liability company ("SPV") and
PHH VEHICLE MANAGEMENT SERVICES LLC, a Delaware limited liability company
("VMS") as Servicer (in such capacity, the "Servicer").
RECITALS
A. SPV, as settlor (in such capacity, the "Settlor") and VMS, as UTI
Trustee, (in such capacity, together with any successor or permitted assign, the
"UTI Trustee") and Wilmington Trust Company, as Delaware Trustee (in such
capacity, together with any successor or permitted assign, the "Delaware
Trustee"; together with the UTI Trustee, the "Trustees") 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 Trust
for the purpose of acting as agent and nominee owner of various Trust Assets (as
defined in the Origination Trust Agreement) in accordance with the Origination
Trust Agreement.
B. The Trust, the SPV and the 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 Trust and at the direction of the Initial
Beneficiary, will identify and allocate on the Trust's books and records certain
Trust Assets within separate SUBI Portfolios (as defined in the Origination
Trust Agreement) and create and issue to the Initial Beneficiary separate
special units of beneficial interest in the Trust or "SUBIs" (as defined in the
Origination Trust Agreement), the beneficiary or beneficiaries of which
generally will hold undivided beneficial interests in the related SUBI
Portfolios, all as set forth in the Origination Trust Agreement.
D. Concurrently herewith, the Initial Beneficiary, the UTI Trustee, the
Servicer, the Delaware Trustee and the SUBI Trustee are entering into two
separate SUBI supplements (the "1999-1A SUBI Supplement" and the "1999-1B SUBI
Supplement" to create and issue to SPV three separate SUBI Certificates (the
"1999-1A SUBI Certificate", the "Class X 1999-1B SUBI Certificate" and the
"Class Y 1999-1B SUBI Certificate; and collectively, the "Sold SUBI
Certificates"). The 1999-1A SUBI Certificate evidences the entire and exclusive
beneficial interest in a separate SUBI consisting of Trust Vehicles, Leases and
related Trust Assets (the "1999-1A SUBI Portfolio") and the Class X 1999-1B SUBI
Certificate and the Class Y 1999-B
SUBI Certificate (collectively referred to as the "1999-1B SUBI Certificates")
collectively evidence the entire and exclusive beneficial interest in a separate
SUBI consisting of an ownership interest in the Fleet Receivables and related
Trust Assets (the "1999-1B SUBI Portfolio"). The 1999-1A SUBI and the 1999-1B
SUBI are referred to herein as the "Sold SUBIs" and the 1999-1A SUBI Portfolio
and the 1999-1B SUBI Portfolio are referred to herein as the "Sold SUBI
Portfolios".
E. Concurrently herewith, SPV is entering into a Transfer Agreement with
Greyhound Funding LLC (the "Issuer") pursuant to which 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 Sold SUBI represented by the
Class X 1999-1B Sold SUBI Certificate and the Class X 1999-1B Sold SUBI
Certificate.
G. Issuer will issue (i) debt securities pursuant to an 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 use the proceeds thereof on the date hereof to satisfy certain
claims on the Trust Assets allocated to the Sold SUBI Portfolios and to make a
distribution to SPV and thereafter will use the proceeds thereof to fund the
acquisition of subsequent additions to the Trust Assets allocated to the 1999-1A
SUBI.
H. The parties hereto desire, pursuant to this Sold SUBI Servicing
Supplement, to supplement the terms of the Servicing Agreement insofar as they
apply to the Sold SUBI Portfolios providing for specific servicing obligations
that will benefit the SPV, as holder of the Class Y 1999-1B SUBI Certificate,
the Issuer, as the holder of the 1999-1A SUBI Certificate and Class X 1999-1B
SUBI Certificate, and the Indenture Trustee, as the pledgee of the Class X
1999-1B SUBI Certificate and 1999-1A SUBI Certificate.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained and in the Servicing Agreement, the parties hereto agree to the
following supplemental obligations with regard to the Sold SUBI Portfolio:
ARTICLE V
DEFINITIONS
Section 5.1. Definitions.
For all purposes of this Sold SUBI Servicing Supplement, except as
otherwise expressly provided or unless the context otherwise requires, (a)
unless otherwise defined herein, all capitalized terms used herein shall have
the meanings attributed to them (i) by Schedule 1 to the Indenture, (ii) if not
defined therein, by the Servicing Agreement, (iii) if not defined therein, by
the Origination Trust Agreement, or (iv) if not defined therein, by the Sold
SUBI Supplement, (b) the capitalized terms defined in this Sold SUBI Servicing
Supplement have the meanings assigned to them in this Sold SUBI Servicing
Supplement and include (i) all genders and (ii) the plural as well as the
singular, (c) all references to words such as "herein", "hereof' and the like
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shall refer to this Sold SUBI Servicing Supplement as a whole and not to any
particular article or section within this Sold SUBI Servicing Supplement, (d)
the term "include" and all variations thereon shall mean "include without
limitation", and (e) the term "or" shall include "and/or".
ARTICLE VI
REPRESENTATIONS AND
WARRANTIES OF SERVICER
The Servicer represents and warrants to the Trustees, the SPV, the Issuer
and the Indenture Trustee on behalf of the Investor Noteholders as follows:
Section 6.1. Organization and Power.
Servicer is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware and has full power,
authority and legal right to carry on its business as now conducted and to enter
into and perform its obligations hereunder and under each of the other
Transaction Documents to which it is a party. The Servicer is qualified to do
business and in good standing in every other jurisdiction where the failure to
do so would have a Material Adverse Effect.
Section 6.2. Authorization, Execution and Validity.
Servicer has duly authorized, executed and delivered this Sold SUBI
Servicing Supplement and the Servicing Agreement and (assuming the due
authorization, execution and delivery by each other party thereto) this Sold
SUBI Servicing Supplement and the Servicing Agreement constitute the legal,
valid and binding obligations of Servicer, enforceable against Servicer in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other laws affecting
the enforcement of creditors', mortgagees' or lessors' rights in general and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
Section 6.3. No Conflict.
The execution, delivery and performance by Servicer of this Sold SUBI
Servicing Supplement and the Servicing Agreement and compliance by Servicer with
its obligations hereunder and thereunder do not (1) require any approval of the
shareholders of Servicer or any approval or consent of any trustee or holder of
any indebtedness or obligation of Servicer, other than such consents and
approvals as have been obtained, (2) contravene any Applicable Law, (3) breach
or contravene Servicer's limited liability company agreement, or (4) contravene
or result in any breach of or creation of any Lien (other than pursuant to the
Transaction Documents) upon any property of Servicer under any indenture,
mortgage, loan agreement, lease or other agreement or instrument to which
Servicer is a party or by which Servicer or any of its properties is bound.
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Section 6.4. Litigation.
There are no actions, suits or proceedings pending or, to the knowledge of
Servicer, threatened against the Servicer, before any Governmental Authority
which individually or in the aggregate would impair the ability of Servicer to
perform its obligations under this Sold SUBI Servicing Supplement or the
Servicing Agreement or which question the validity of this Sold SUBI Servicing
Supplement or the Servicing Agreement or any action taken or to be taken
pursuant hereto or thereto. Servicer is not in default with respect to any order
of any Governmental Authority, the default under which would adversely affect
the ability of Servicer to perform its obligations under this Sold SUBI
Servicing Supplement or the Servicing Agreement.
Section 6.5. Consents.
No consent, approval or authorization of, or filing, registration or
qualification with, or giving of notice or taking of any other action with
respect to, any Governmental Authority is required in connection with the
execution, delivery and performance by Servicer of this Sold SUBI Servicing
Supplement or the Servicing Agreement, or the performance by Servicer of the
transactions contemplated hereby or of any of the transactions contemplated by
any of the Servicing Agreement, other than any such consent, approval,
authorization, filing, registration, qualification, notice or action as has been
duly obtained, given or taken and is in full force and effect.
Section 6.6. Year 2000 Compliance.
Servicer has reviewed the areas within its business and operations which
could be adversely affected by, and has developed or is developing a program to
address on a timely basis, the risk that certain computer applications used by
the Servicer (or any of its material suppliers, customers or vendors) may be
unable to recognize and perform properly date-sensitive functions involving
dates prior to and after December 31, 1999 (the "Year 2000 Problem"). The Year
2000 Problem will not have a Material Adverse Effect on the interests of the
holders of any SUBI Certificate or any pledgee of any SUBI Certificate.
ARTICLE VII
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING
OF THE SOLD SUBI PORTFOLIO
Section 7.1. Servicing Obligations.
(a) The Servicer, until terminated pursuant to Section 9.1 shall service,
administer and make collections on the Trust Assets allocated to the Sold SUBI
Portfolios in accordance with terms and provisions of the Servicing Agreement.
(b) The Servicer shall account to the SUBI Trustee, the Issuer and the
Indenture Trustee with respect to the 1999-1A Sold SUBI Portfolio and the
portion of the 1999-1B Sold
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SUBI Portfolio represented by the Class X 1999-1B SUBI Certificate separately
from any other Portfolio. The Servicer shall account to the SUBI Trustee and SPV
with respect to the portion of the 1999-1B SUBI Portfolio, represented by the
Class Y 1999-1B Sold SUBI Certificate, separately from any other Portfolio.
Section 7.2. Servicer Bound by Servicing Agreement.
(a) The Servicer shall continue to be bound by all provisions of the
Servicing Agreement with respect to the Trust Assets allocated to the Sold SUBI
Portfolios, including the provisions of Article II thereof relating to the
administration and servicing of Trust Vehicles, Leases and Fleet Receivables;
and the provisions set forth herein shall operate either as additions to or
modifications of the existing obligations of the Servicer under the Servicing
Agreement, as the context may require. In the event of any conflict between the
provisions of this Sold SUBI Servicing Supplement and the Servicing Agreement
with respect to the Sold SUBIs, the provisions of this Sold SUBI Servicing
Supplement shall prevail.
(b) For purposes of determining the Servicer's obligations with respect to
the servicing of the Sold SUBI Portfolios under this Sold SUBI Servicing
Supplement, general references in the Servicing Agreement to: (i) a SUBI
Portfolio shall be deemed to refer more specifically to a Sold SUBI Portfolio;
(ii) a SUBI Servicing Agreement Supplement shall be deemed to refer more
specifically to this Sold SUBI Servicing Supplement; and (iii) a Sold SUBI
Supplement shall be deemed to refer more specifically to a Sold SUBI Supplement
relating to one of the Sold SUBI Portfolios.
Section 7.3. Application of Proceeds.
In accordance with Section 2.2(c) of the Servicing Agreement, Servicer
shall pay all Collections received in respect of the Sold SUBIs as follows:
(a) The Servicer shall deposit all Collections received in respect of to
the Sold SUBIs into the Collection Account within two (2) Business Days of
receipt thereof. In addition, at any time when either any Series of Investor
Notes or Preferred Membership Interests is outstanding, if the Servicer obtains
confirmation from each Rating Agency with respect to such Series of Investor
Notes and such series of Preferred Membership Interests, and provides evidence
of such confirmation to the Indenture Trustee and the Issuer, of the utilization
by the Servicer of an alternative remittance schedule with respect to
Collections (including the use of an alternative remittance schedule pursuant to
which the obligations of the Servicer to make such remittances are secured by a
letter of credit satisfactory to such Rating Agencies), the Servicer may remit
such Collections in accordance with that alternative remittance schedule.
Without limiting the generality of the foregoing, if VMS is the Servicer and (i)
shall have the Required Rating or (ii) the Indenture Trustee and the Issuer
otherwise shall have received written notice from each of the Rating Agencies
with respect to each Series of Investor Notes and each series of Preferred
Membership Interests that the then outstanding rating on each Series of Investor
Notes and each Series of Preferred Membership Interests would not be lowered or
withdrawn as a result, the Servicer may deposit all amounts referred to above
for any Monthly Period into the Collection Account not later than the related
Settlement Date; provided that (i) if a Servicer Termination
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Event has occurred and is continuing or (ii) the Servicer has been terminated as
such pursuant to Section 9.1 or (iii) the Servicer ceases to have the Required
Rating, Servicer shall deposit all amounts (including any amounts then being
held by Servicer) into the Collection Account as provided above.
(b) After the payment in full of each Series of Investor Notes and the
redemption in full of each series of Preferred Membership Interests, the
Servicer shall pay all Collections in accordance with the instructions provided
by the Issuer from time to time.
Section 7.4. Monthly Servicer Advances.
On or prior to each Settlement Date, the Servicer shall make a Monthly
Servicer Advance in an amount equal to the amount by which the aggregate monthly
lease payments billed and unpaid under all Unit Leases and all Fleet Receivables
billed and unpaid during the preceding Monthly Period exceeds the amount of
Collections in respect of such payments during such Monthly Period provided,
however, that the Servicer shall not (a) be required to make any Monthly
Servicer Advance in respect of any Unit Lease or Fleet Receivable that it
reasonably determines, in its sole discretion, is unlikely to be paid from
subsequent Collections on such Unit Lease or Fleet Receivable or (b) make any
Monthly Servicer Advance with respect to any Charged-Off Lease. On each
Settlement Date, the Servicer shall be entitled to be reimbursed in accordance
with the Indenture for amounts previously advanced by the Servicer hereunder in
respect of delinquent monthly lease payments or delinquent Fleet Receivables out
of amounts collected in respect of such delinquent monthly lease payment or
delinquent Fleet Receivables during the immediately preceding Monthly Period.
Section 7.5. Payment of Fees and Expenses.
Servicer shall pay all expenses incurred in connection with the
administration and servicing of the Sold SUBIs, the Sold Units and the Fleet
Receivables, including, without limitation, expenses incurred by it in
connection with its activities hereunder, including fees and disbursements of
the SUBI Trustee, independent accountants, taxes imposed on Servicer and any
SUBI Trustee or Delaware Trustee indemnity claims, including those arising under
Sections 5.5, 6.8 and 7.1 of the Origination Trust Agreement.
Section 7.6. Servicing Compensation.
Notwithstanding anything to the contrary in Section 2.5 of the Servicing
Agreement, the Servicing Fee with regard to the Sold SUBI Portfolios shall be
calculated and paid on each Settlement Date pursuant to the Indenture.
Section 7.7. Insurance Policies.
(a) So long as the 1999-1A SUBI Certificate is outstanding, the Servicer
shall have in effect, maintain and keep in force for the benefit of the
Origination Trust, or cause the Origination Trust to have in effect, maintain
and keep in force, insurance with respect to the SUBI Trust Assets against such
hazards, in such form and in such amounts as follows:
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(i) Contingent and excess automobile liability insurance policies
with Continental Casualty Company (or other nationally recognized
insurance company with a rating of at least A by A.M. Best), with limits
of no less than $1,000,000 per occurrence, covering losses in the event
that an Obligor's primary insurance policy is not collectible at the time
of loss or that a liability claim exceeds the policy limit of the Lessee
primary insurance.
(ii) Interim automobile liability insurance coverage with
Continental Casualty Company (or other nationally recognized insurance
company with a rating of at least A by A.M. Best), with limits of no less
than $1,000,000 per occurrence, covering losses (i) prior to the time that
an Obligor's primary insurance becomes effective and (ii) after a Unit
Lease has terminated.
(iii) Umbrella excess liability insurance of not less than
$25,000,000 with an insurer that has a rating of at least A by A.M. Best.
Such coverage shall be on a per occurrence basis and over and above the
coverage provided by the policies described in paragraphs (i) and (ii)
above. The umbrella excess liability policies shall not restrict coverages
as set forth in paragraphs (i) and (ii) above.
(iv) All policies of insurance required to be maintained pursuant to
this section shall be subject to such deductibles or retentions as are
consistent with industry practices of prudent automobile and light truck
vehicle lease companies or lessors.
(b) All policies of insurance required to be maintained pursuant to this
section shall name the Origination Trust, SPV and the Issuer as additional
insureds as their interests shall appear (the "Additional Insured"). Each policy
of insurance required under the provisions of this section shall contain an
endorsement by the insurer that any loss shall be payable in accordance with the
terms of such policy notwithstanding any act or negligence of the Servicer or
other insured that might otherwise give rise to a defense by the insurer to its
payment of such loss. Each policy shall expressly provide that all provisions
thereof, except liability for premiums (which shall be solely a liability of the
Servicer) and the limits of the insurer's liability under the policy shall
operate in the same manner as if there were a separate policy covering each
Additional Insured. Each such policy shall provide that if such insurance is to
be canceled, terminated or materially changed for any reason whatsoever, the
insurers (or their representatives) will promptly notify the Additional
Insureds, and any such cancellation, termination or change shall not be
effective until 30 days (10 days for non-payment of premium) after receipt of
such notice by the Additional Insureds.
(c) The Servicer will advise the Additional Insureds in writing promptly
of any default in the payment of any premium and of any other act or omission on
the part of the Servicer which may invalidate or render unenforceable, in whole
or in part, any insurance being maintained pursuant to this section. The
Servicer will deliver to the Additional Insureds, promptly upon request and in
any event within 30 days after the end of each fiscal year of the Servicer, a
certificate signed by an authorized officer of the Servicer (x) attaching
certificates of all insurance policies relating to the Sold SUBI Portfolios, and
stating that all premiums then due
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thereon have been paid and that such policies are in full force and effect and
(y) stating that such insurance policies comply with the requirements of this
section.
Section 7.8. Corporate Existence: Status; Merger.
(a) With reference to Section 2.16(a) of the Servicing Agreement, the
Servicer also will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of, or to permit the
Servicer to perform its obligations under, this Supplement and the Servicing
Agreement.
(b) With reference to Section 2.16(b) of the Servicing Agreement, whenever
a successor to the Servicer by merger or consolidation is required to execute
and deliver to the SUBI Trustee an agreement as to the assumption by the
successor of the Servicer's obligations under the Servicing Agreement, such
agreement also must contain a similar assumption of the Servicer's obligations
under this Supplement.
Section 7.9. Indemnification.
The Servicer agrees to indemnify, defend and hold harmless the UTI Holder,
the Origination Trust, the Trustees and their respective agents, SPV, the Issuer
and the Indenture Trustee, on behalf of the Investor Noteholders, for any and
all liabilities, losses, damages and expenses that may be incurred as a result
of any negligent act or omission by the Servicer in connection with its
maintenance and custody of the Lease Documents and Certificates of Title, the
servicing of the Sold SUBI Portfolios or any other activity undertaken or
omitted by the Servicer with respect to any Sold SUBI, this Sold SUBI Servicing
Supplement or the Servicing Agreement. The obligations set forth in this Section
7.9 shall survive the termination of this Sold SUBI Servicing Supplement, the
Servicing Agreement and the Origination Trust Agreement or the resignation or
removal of the Servicer or any Origination Trustee.
Section 7.10. Liens.
The Servicer will not directly or indirectly create, allow or suffer to
exist any Lien on the Sold SUBI Certificates, the Sold SUBIs, the Sold Units or
any other Trust Assets included in the Sold SUBI Portfolios, other than
Permitted Liens.
Section 7.11. Record Keeping.
The Servicer shall maintain its computer systems relating to the Sold
Units so that, from and after the time of the allocation of Sold Units to the
1999-1A SUBI Portfolio, the Servicer's master computer records (including any
backup archives) that refer to a Sold Unit shall indicate clearly the interest
of the Issuer therein allocated at the UTI Trustee's direction by the
Origination Trustee to the 1999-1A SUBI Portfolio. The Servicer shall maintain
its computer systems relating to the Fleet Receivables so that, from and after
the time of the allocation of the Fleet Receivables to the 1999-1B SUBI
Portfolio, the Servicer's master computer records
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(including any backup archives) that refer to a Fleet Receivable shall indicate
clearly the interests of SPV and the Issuer therein.
Section 7.12. Other Transactions.
If at any time VMS shall propose to sell, grant a security interest in or
otherwise transfer an interest in Origination Trust Assets allocated to the UTI
Interest or any SUBI (other than the Sold SUBIs to any prospective purchaser,
lender or other transferee, the Servicer will not give such prospective
purchaser, lender or other transferee any computer tapes, records or printouts
(including any restored from backup archives) unless, if they shall refer in any
manner whatsoever to any Sold Unit allocated to the 1999-1A SUBI Portfolio or
any Fleet Receivable allocated to the 1999-1B SUBI Portfolio, such computer
tapes, records or printouts shall indicate clearly that a beneficial interest in
such Sold Unit or Fleet Receivable has been issued to the SPV and, as
applicable, sold or pledged by SPV to any other Person.
Section 7.13. Amendment of Policies.
So long as the 1999-1A SUBI Certificate is outstanding, the Servicer shall
not amend or modify the Policies if such amendment or modification would have a
material adverse effect on the collectibility of amounts owing in respect of the
Leases or on the interests of the holders of the Sold SUBIs or any assignee or
pledgee thereof therein.
Section 7.14. Amendment of Leases.
So long as the 1999-1A SUBI Certificate is outstanding, the Servicer shall
not (i) amend or modify any Lease if such amendment or modification would (x)
decrease any amount payable under such Lease upon the early termination thereof
or reduce any payment due under any such Lease upon the expiration thereof or
(y) extend the final termination date for such Lease if such Lease would not
have been an Eligible Lease at the time it was first included in the Aggregate
Lease Balance had such extension been effected at such time or (ii) convert the
floating interest rate under any Lease to a rate which is lower than the greater
of (x) the fixed rate into which such floating rate is converted in accordance
with such Lease and (y) 1/2 of 1% in excess of the PHH Treasury Note Rate on the
conversion date.
Section 7.15. Servicer Payment in Respect of Certain Leases and Trust
Vehicles.
(a) In connection with SPV's contribution of certain of the Trust Assets
to the Trust pursuant to the Contribution Agreement and the allocation of the
Trust Assets to the 1999-1A SUBI on the Closing Date, the Servicer will deliver
a certificate of an Authorized Officer, substantially in the form of Exhibit A,
representing and warranting to SPV, the Issuer and the Indenture Trustee that
(i) all of the Master Lease Agreements allocated to the 1999-1A SUBI on the
Initial Closing Date were Eligible Master Leases as of the Initial Cut-Off Date,
(ii) all of the Leases under such Master Lease Agreements included in the
Initial Aggregate Lease Balance were Eligible Leases as of the Initial Cut-Off
Date and (iii) all of the Consumer Leases allocated to the
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1999-1A SUBI on the Initial Closing Date were Eligible Consumer Leases as of the
Initial Cut-Off Date.
(b) At the time of its origination of a new Lease under a Master Lease
Agreement allocated to the 1999-1A SUBI Portfolio pursuant to Section 2.2 of the
Servicing Agreement, the Servicer shall determine whether such Lease is an
Eligible Lease and, if it so determines that a new Lease is an Eligible Lease
and, as a result thereof, increases the Aggregate Lease Balance to include such
Lease, the Servicer shall be deemed to have represented to the holder of the
1999-1A SUBI Certificate and each assignee or pledgee thereof that such Lease
constitutes an Eligible Lease as of the first date on which such Lease is
included by the Servicer in the Aggregate Lease Balance.
(c) In connection with, and as a condition to, any allocation of a new
Master Lease Agreement to the 1999-1A SUBI Portfolio pursuant to Section 11.2(b)
of the 1999-1A Sold SUBI Supplement, the Servicer shall determine that such
Master Lease Agreement is an Eligible Master Lease of the date of such
allocation and deliver to SPV, the Issuer and the Indenture Trustee a
certification of an Authorized Officer in accordance with Section 11.2(d) of the
1999-1A Sold SUBI Supplement.
(d) In connection with, and as a condition to, any allocation of a new
Consumer Lease to the 1999-1A SUBI Portfolio pursuant to Section 11.2(c) of the
1999-1A Sold SUBI Supplement, the Servicer shall determine that such Consumer
Lease is an Eligible Consumer Lease as of the date of such allocation and shall
deliver to SPV, the Issuer and the Indenture Trustee a certification of an
Authorized Officer in accordance with Section 11.2(d) of the 1999-1A Sold SUBI
Supplement.
(e) At the time of any acquisition of a Paid-In-Advance Vehicle, the
Servicer shall be deemed to have represented to the holder of the 1999-1A SUBI
Certificate and each assignee or pledgee thereof that the Master Lease Agreement
under which such Paid-In-Advance Vehicle is being acquired is not an Ineligible
Delinquent Lease.
(f) The certifications of the Servicer described in Sections 7.15(a)
through (e) (each a "Certification") shall survive delivery of the related
Certification. Upon discovery by SPV, the Issuer, the Indenture Trustee or the
Servicer that any such Certification was incorrect when made or deemed made and
such breach of representation and warranty materially and adversely affects the
collectibility of, or the interest of the holder of the 1999-1A SUBI
Certificate, or any assignee or pledgee thereof in, such Master Lease Agreement,
Consumer Lease or Lease, as the case may be, the party discovering such
incorrectness shall give prompt written notice to the others. Within 30 days of
its discovery of such breach or notice to such effect to the Servicer, the
Servicer shall cure in all material respects the circumstances or condition
giving rise to such breach. If the Servicer is unable or unwilling to so cure
any such breach, it shall, as the sole remedy for such breach (i) deposit (or
cause to be deposited) into the Collection Account on the first Settlement Date
following such 30-day period an amount equal to the Aggregate Lease Balance of
all Leases under such Master Lease Agreement as of the last day of the
immediately preceding Monthly Period plus, in the case of a Closed-End Lease,
the aggregate Net Book Value of the Leased
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Vehicles subject to such Master Lease Agreement as of such day, in the case of a
repurchase of a Master Lease Agreement, the Lease Balance of such Consumer Lease
as of the last day of the immediately preceding Monthly Period plus, in the case
of a Closed-End Lease, the Net Book Value of the Leased Vehicle subject to such
Consumer Lease as of such day, in the case of a repurchase of a Consumer Lease,
the Lease Balance of such Lease as of the last day of the immediately preceding
Monthly Period plus, in the case of a Closed-End Lease, the Net Book Value of
the Leased Vehicle subject to such Lease as of such day, in the case of a
repurchase of a Lease, or the cost of the Paid-In-Advance Vehicle, in the case
of a repurchase of a Paid-In-Advance Vehicle (which deposit shall constitute the
full purchase price in respect of the purchase of such Master Lease Agreement,
such Consumer Lease, such Lease or such Paid-In-Advance Vehicle, as the case may
be), (ii) purchase such Master Lease Agreement, such Consumer Lease or such
Lease and the related Leased Vehicle or Vehicles or such Paid-In-Advance
Vehicles from the Origination Trust, and (iii) indemnify, defend and hold
harmless the holders of any 1999-A SUBI Certificate (including, without
limitation, SPV, the Issuer and the Indenture Trustee on behalf of the Investor
Noteholders) and any subsequent servicer (if other than the current Servicer)
from and against, any and all loss or liability with respect to or resulting
from any such Master Lease, Consumer Lease, Lease, Leased Vehicle or
Paid-In-Advance (including, without limitation, the reasonable fees and expenses
of counsel). At any time following such repurchase, if requested by the
Servicer, the Trust Vehicle or Vehicle will be re-titled in the name of the
Servicer or its designee (other than the Trust, the SPV or the Issuer).
(g) The obligations of the Servicer pursuant to this Section 7.15 shall
survive any termination of the Servicer with respect to the Sold SUBI Portfolio
under this Supplement or the Servicing Agreement.
ARTICLE VIII
STATEMENTS AND REPORTS
Section 8.1. Reporting by the Servicer.
(a) The Servicer shall deliver to SPV, the Issuer and the Indenture
Trustee or any subsequent holder or pledgee of the Sold SUBI Certificates all
reports and other documents required to be delivered to the Origination Trustee
pursuant to the Servicing Agreement concurrently with their delivery to the
Origination Trustee.
(b) On each Determination Date, the Servicer shall deliver to the
Origination Trustee, SPV, the Issuer and the Indenture Trustee and each Rating
Agency, a certificate of an Authorized Officer in respect of the immediately
preceding Monthly Period with respect to each Series of Investor Notes (each a
"Settlement Statement") substantially in the form attached to the related
Indenture Supplement.
(c) Prior to 1:00 p.m. (New York City time), on each Deposit Date, the
Servicer shall deliver to the Origination Trustee, SPV, the Issuer and the
Indenture Trustee, a Deposit Report, setting forth the aggregate amount of
Collections deposited in the Collection Account on such Deposit Date.
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(d) Within ten Business Days of the last Business Day of each fiscal
quarter of the Issuer, the Servicer shall deliver to the Origination Trustee,
SPV, the Issuer and the Indenture Trustee a copy of a Quarterly Compliance
Certificate of an Authorized Officer, substantially in the form of Exhibit B,
dated as of the end of the preceding fiscal quarter, stating that (i) review of
the activities of the Servicer during the preceding fiscal quarter (or, in the
case of the first such certificate, from the Initial Closing Date) and of its
performance under this Agreement has been under such Authorized Officer's
supervision and (ii) to the best of such Authorized Officer's knowledge, based
on such review, the Servicer has fulfilled all its obligations in all material
respects under this Agreement, throughout such fiscal quarter or, if there has
been a default in any material respect in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
Section 8.2. Annual Accountants' Reports.
The Servicer shall cause Deloitte & Touche LLP or another firm of
nationally recognized independent certified public accountants, who may also
render other services to the Servicer, to deliver to SPV, the Issuer, the
Indenture Trustee, and each Rating Agency on or before March 31 of each year
concerning the 12-month period ended December 31 of the preceding year (or such
other first period since the date of this Sold SUBI Servicing Supplement),
beginning March 31, 2000, (i) a report to the effect that such firm (A) has
reviewed certain documents and records relating to the servicing of the Trust
Assets allocated to the 1999-1A SUBI Portfolio and (B) based on such review,
such firm is of the opinion that the Settlement Statements for such year were
prepared in compliance with this Sold SUBI Servicing Supplement; except for such
exceptions as it believes to be immaterial and such other exceptions as will be
set forth in such firm's report, and (ii) a report to the effect that such firm
has examined the assertion of Servicer's management as to its compliance with
the servicing requirements set forth in Article II of the Servicing Agreement
with respect to such 12-month (or other) period and that (A) such examination
was made in accordance with standards established by the American Institute of
Certified Public Accountants, and (B) except as described in the report,
management's assertion is fairly stated in all material respects. The report
will also indicate that the firm is independent of the Servicer within the
meaning of the Code of Professional Ethics of the American Institute of
Certified Public Accountants.
Section 8.3. Other Certificates and Notices from Servicer.
(a) The Servicer shall deliver to SPV, the Issuer, the Indenture Trustee
and each Rating Agency promptly after having obtained knowledge thereof, but in
no event later than three Business Days thereafter, an Officer's Certificate
specifying the nature and status of any event which with the giving of notice or
lapse of time, or both, would become a Servicer Termination Event.
(b) The Servicer shall deliver to SPV, the Issuer, the Indenture Trustee
and each Rating Agency on a quarterly basis, within 45 days following the end of
each quarter, a certificate executed by a duly authorized officer of the
Servicer stating whether or not, if all "employee benefit plans" subject to
Title IV of ERISA which Servicer, or any entity which is a
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member of a "Controlled Group", of which the Servicer is also a member,
maintains or sponsors were terminated on the last day of the immediately
preceding quarter or immediately after such date, there would be any unfunded
liabilities with respect to any such plan, its participants or beneficiaries, or
the Pension Benefit Guarantee Corporation.
Section 8.4. Period End Dates.
The Servicer shall establish the Period End Dates for each calendar year.
The Period End Date will generally be the last Saturday of each calendar month
unless the last Saturday of a calendar month is too close to the end of such
month to permit orderly billing, in which event the Period End Date shall be the
second to last Saturday of the month. The remaining Period End Dates for
calendar year 1999 are set forth on Schedule X. On or prior to December 1 of
each calendar year, commencing December 1, 1999, the Servicer shall deliver to
SPV, the Issuer and the Indenture Trustee a list of the Period End Dates for the
next calendar year and Schedule X shall be deemed to be amended thereby.
ARTICLE IX
TERMINATION OF SERVICER
Section 9.1. Termination of Servicer as to Sold SUBI Portfolios.
(a) Notwithstanding any statement to the contrary contained in Article III
of the Servicing Agreement, the Servicer may be terminated by the Issuer,
subject to Section 10.1 of this Sold SUBI Servicing Supplement, upon written
notice to the Servicer, with respect to the Sold SUBI Portfolios to the extent a
Servicer Termination Event shall have occurred and be continuing. As used
herein, the term "Servicer Termination Event" shall mean any of the following
acts or occurrences:
(i) The Servicer shall have failed to deposit or transfer any
amounts that are required to be deposited or transferred related to the
Sold SUBIs as provided in Section 7.3 of this Sold SUBI Servicing
Supplement, and such failure continues for two (2) Business Days after the
discovery of such failure by the Servicer or the receipt by the Servicer
of written notice thereof from the Issuer or the Indenture Trustee;
(ii) The Origination Trustee, the Issuer or the Indenture Trustee
shall not have received the Monthly Report within three (3) Business Days
after the date any such report is due;
(iii) The Servicer shall default in the due performance and
observance of any other provision of this Agreement, and such default
shall have continued for a period of 30 days after the earlier to occur of
(x) written notice thereof shall have been given to the Servicer, by the
Issuer or the Indenture Trustee or (y) discovery of such failure by the
Servicer;
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(iv) The occurrence of a "Servicer Termination Event" described in
Section 3.1(a) of the Servicing Agreement;
(v) Any representation, warranty or statement of the Servicer made
under the Servicing Agreement or this Agreement or any certificate, report
or other writing delivered pursuant hereto or thereto relating to the Sold
SUBI Portfolio shall prove to be incorrect in any material respect as of
the time when the same shall have been made and, within 30 days after the
earlier to occur of (x) written notice thereof shall have been given to
the Servicer, by the Issuer or the Indenture Trustee or (y) discovery of
such failure by the Servicer, the circumstance or condition in respect of
which such representation, warranty or statement was incorrect shall not
have been eliminated or otherwise cured; or
(vi) The Servicer shall have created, either indirectly or directly,
or allowed to suffer to exist, any Lien on the Sold SUBI Certificates, the
Sold SUBIs or any Origination Trust Assets included in the Sold SUBIs
Portfolios, other than Permitted Liens.
(b) Upon the giving of any such notice of the occurrence of a Servicer
Termination Event to the Servicer, the Issuer, subject to Section 10.1 of this
Sold SUBI Servicing Supplement, may replace the Servicer with a successor
Servicer satisfactory to it and upon the effective date of the assumption by the
successor Servicer of its duties, all rights, powers, duties and
responsibilities of the Servicer with respect to the Sold SUBI Portfolios under
the Servicing Agreement as supplemented by this Sold SUBI Servicing Supplement,
but excluding the obligations set forth in Section 9.1(d) hereof as being
retained by the Servicer, shall vest in and be assumed by, such successor
Servicer, and the Issuer and the SUBI Trustee are each hereby irrevocably
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, or to direct the Servicer to deliver, all
documents and other instruments (including any notices to Obligors deemed
necessary or advisable by the SUBI Trustee), and to do or accomplish all other
acts or things necessary or appropriate to effect such vesting and assumption,
including, without limitation, (i) directing the Obligors to remit payments on
or in respect of the Sold SUBIs to an account or address designated by such new
Servicer and (ii) directing the Servicer to deliver and transfer to the
successor Servicer (A) all cash amounts (including all Security Deposits being
held by the predecessor Servicer pursuant to Section 2.4 of the Servicing
Agreement) that shall at the time be held by the predecessor Servicer under the
Servicing Agreement and this Sold SUBI Servicing Supplement or otherwise or
shall thereafter be received by it with respect to the Sold SUBI, and (B) all
related Lease Documents, Certificates of Title and other related items that from
time to time come into possession of the predecessor Servicer with respect to
the Sold Units or the Fleet Receivables. Further, within 10 Business Days of the
receipt by the Servicer of such direction, the Servicer shall use commercially
reasonable efforts to effect the orderly and efficient transfer of the servicing
of the Sold SUBI Portfolios to the new Servicer, and as promptly as practicable,
the Servicer shall provide to the new Servicer a current computer tape
containing all information from the Servicing Records required for the proper
servicing of the Sold SUBI Portfolios, (including all origination and servicing
information, records and data relating to the Sold Units or the Fleet
Receivables, in a form readily and immediately usable by such new Servicer)
together with
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documentation containing any and all information necessary for use of the tape.
All reasonable costs and expenses (including attorney's fees) incurred by the
successor Servicer in connection with the transfer of the servicing of the Sold
SUBI Portfolios to the new Servicer (including the transfer of such Lease
Documents and Certificates of Title) and amending the Servicing Agreement and
this Sold SUBI Servicing Supplement to reflect the succession to successor
Servicer shall be paid by the predecessor Servicer.
(c) Upon the effectiveness of the assumption by the successor Servicer of
its duties pursuant to this Section 9.1, the successor Servicer shall be the
successor in all respects to the Servicer in its capacity as Servicer under the
Servicing Agreement with respect to the Sold SUBI Portfolios, and shall be
subject to all the responsibilities, duties and liabilities relating thereto,
except with respect to the obligations of the predecessor Servicer that survive
its termination as the Servicer as set forth in Section 9.1(d). No Servicer
shall resign or be relieved of its duties under the Servicing Agreement, as
Servicer of the Sold SUBI Portfolios, until a newly appointed Servicer for the
Sold SUBI Portfolios shall have assumed the responsibilities and obligations of
the terminated Servicer under the Servicing Agreement and this Sold SUBI
Servicing Supplement.
(d) No termination of the Servicer as to the Sold SUBI Portfolios shall
affect the obligations of the Servicer pursuant to Section 7.9 or Section 7.15
(but only to the extent of the Certifications made or deemed made prior to such
termination) of this Sold SUBI Servicing Supplement.
Section 9.2. No Effect on Other Parties.
Upon any termination of the rights and powers of the Servicer with respect
to the Sold SUBI Portfolios pursuant to Section 9.1 hereof, or upon any
appointment of a successor to the Servicer with respect to the Sold SUBI
Portfolios, all the rights, powers, duties and obligations of the Trustees, the
UTI Holder and the Settlor under the Origination Trust Agreement, the Servicing
Agreements, the Sold SUBI Supplements, any other SUBI Supplements, any other
SUBI Servicing Agreement Supplements or any other Trust Document shall remain
unaffected by such termination or appointment and shall remain in full force and
effect thereafter, except as otherwise expressly provided herein or therein.
ARTICLE X
ASSIGNMENT OF SERVICING AGREEMENT RIGHTS
Section 10.1. Assignment.
Each party hereto hereby acknowledges and consents to (i) the pledge and
assignment by SPV to the Issuer pursuant to the Transfer Agreement of all of the
SPV's rights under the Servicing Agreement and this Sold SUBI Servicing
Supplement and (ii) the pledge, assignment and grant of a security interest by
the Issuer to the Indenture Trustee for the benefit of the
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Investor Noteholders pursuant to the Indenture of all of the Issuer's right,
title and interest in and to the Servicing Agreement and this Sold SUBI
Servicing Supplement.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Termination of Agreement.
(a) If all of the interest in the Sold SUBIs is transferred to the UTI
Holder, then the Servicer, upon the direction of the UTI Holder as provided in
Section 11.4 of each of the Sold SUBI Supplements, shall reallocate all Sold
SUBI Assets to the UTI Portfolio and the respective duties and obligations of
the Servicer and the SUBI Trustee with respect to the Sold SUBIs created by the
Servicing Agreement and this Sold SUBI Servicing Supplement shall terminate.
(b) Except as provided in this Section 11.1, the respective duties and
obligations of the Servicer and the SUBI Trustee with respect to the Sold SUBI
Portfolios created by the Servicing Agreement and this Sold SUBI Servicing
Supplement shall terminate upon the termination of the Servicing Agreement
pursuant to Section 4.1 thereof (and with the consent of SPV, the Issuer and the
Indenture Trustee in the case of a termination pursuant to Section 11.1(a)
hereof). Upon such a termination, the Servicer shall pay over to the UTI Holder
or any other Person entitled thereto all moneys held by the Servicer with
respect to the Sold SUBI Portfolios pursuant to the Servicing Agreement and this
Sold SUBI Servicing Supplement.
Section 11.2. Amendment.
(a) Notwithstanding Section 4.2 of the Servicing Agreement and subject to
Section 10.1 hereof, the Servicing Agreement, as supplemented by this Sold SUBI
Servicing Supplement, to the extent that it deals with the Sold SUBI Portfolios,
may be amended from time to time in accordance with this Section 11.2.
(b) Subject to Section 10.1 hereof, the Servicing Agreement and this Sold
SUBI Servicing Supplement may be amended from time to time to the extent that it
relates to the Sold SUBIs by SPV, with the consent of the SUBI Trustee but
without the consent of any other Person, to correct any inconsistency or cure
any ambiguity or errors in the Servicing Agreement or this Sold SUBI Servicing
Supplement in a manner which would have no adverse effect on any holder of the
Sold SUBI Certificates or any pledge or assignee thereof.
(c) Subject to Section 10.1 hereof, the Servicing Agreement or this Sold
SUBI Servicing Supplement may be amended in any respect from time to time to the
extent that it relates to the Sold SUBIs by SPV, with the consent of the holder
of the Sold SUBI Certificates and any 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
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amendment or consent 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 either Rating Agency with prior
written notice of the substance of any amendment or consent to the Servicing
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 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 Servicing Agreement or
this Sold SUBI Servicing 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 Servicing
Agreement or this Sold SUBI Servicing Supplement and that all conditions
precedent to the execution and delivery of such amendment have been satisfied.
Section 11.3. Governing Law.
THIS SOLD SUBI SERVICING SUPPLEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW BUT EXCLUDING TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER
CHOICE OF LAW AND CONFLICTS OF LAW RULES).
Section 11.4. Notices.
The notice provisions of Section 4.4 of the Servicing Agreement shall
apply equally to this Sold SUBI Servicing Supplement.
Section 11.5. Third Party Beneficiary.
SPV and each assignee or pledgee of the SPVs interest in this Sold SUBI
Servicing Agreement is an express third party beneficiary of the obligations of
the parties hereto and may directly enforce the performance of any of such
obligations hereunder.
Section 11.6. Severability.
If one or more of the provisions of this Sold SUBI Servicing Supplement
shall be for any reason whatever held invalid or unenforceable, such provisions
shall be deemed severable from the remaining covenants, agreements and
provisions of this Sold SUBI Servicing Supplement, and such invalidity or
unenforceability shall in no way affect the validity or enforceability of such
remaining covenants, agreements and provisions, or the rights of any parties
hereto. To the extent permitted by law, the parties hereto waive any provision
of law that renders any provision of this Sold SUBI Servicing Supplement invalid
or unenforceable in any respect.
Section 11.7. Binding Effect.
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The provisions of the Servicing Agreement and this Sold SUBI Servicing
Supplement, insofar as they relate to the Sold SUBI Portfolios, shall be binding
upon and inure to the benefit of the respective successors and permitted assigns
of the parties hereto, including, but not limited to, SPV, the Issuer and the
Indenture Trustee.
Section 11.8. Article and Section Headings.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
Section 11.9. Execution in Counterparts.
This Sold SUBI Servicing Supplement may be executed in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original, but all of which counterparts shall together constitute but one and
the same instrument.
Section 11.10. Further Assurances.
Each party will do such acts, and execute and deliver to any other party
such additional documents or instruments as may be reasonably requested in order
to effect the purposes of this Sold SUBI Servicing Supplement and to better
assure and confirm unto the requesting party its rights, powers and remedies
hereunder.
Section 11.11. Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a) this
Sold SUBI Servicing Supplement is executed and delivered by Wilmington Trust
Company, not individually or personally but solely as SUBI Trustee of the Trust
under the Origination Trust Agreement, in the exercise of the powers and
authority conferred and vested in it, (b) nothing herein contained shall be
construed as creating any liability on Wilmington Trust Company, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any Person claiming by, through or under the parties hereto and (c) under
no circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by any party under the Transaction Documents.
Section 11.12. Series Liabilities.
Each party hereto represents, warrants and covenants that (a) each of the
Sold SUBIs 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 Sold SUBIs or the Sold
SUBI Portfolios shall be enforceable against the respective Sold SUBI Portfolios
only, as applicable, 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
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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, UTI Assets or SUBI Assets with respect to any SUBI (other than
the respective Sold SUBIs) shall not be subject to the claims, debts,
liabilities, expenses or obligations arising from or with respect to the Sold
SUBIs, respectively, in respect of such claim, (d)(i) no creditor or holder of a
claim relating to the Sold SUBIs or the Sold SUBI Portfolios 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 Sold SUBIs or any SUBI Assets other than the Sold SUBI Portfolios
shall be entitled to maintain any action against or recover any assets allocated
to the Sold SUBIs, and (e) any purchaser, assignee or pledgee of an interest in
the Sold SUBIs, the Sold SUBI Certificates, 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 Sold SUBI Certificate (as
defined in the Origination Trust Agreement), 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.
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Section 11.13. No Petition.
With respect to each Special Purpose Entity, each party hereto 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 THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers duly authorized as of the day and
year first above written.
X.X. XXXXXXXX TRUST
By: Wilmington Trust Company, not in its individual
capacity but solely as Delaware Trustee
By: _______________________________________________
Name: _________________________________________
Title: ________________________________________
PHH VEHICLE MANAGEMENT SERVICES LLC
By: _______________________________________________
Name: _________________________________________
Title: ________________________________________
RAVEN FUNDING LLC
By: _______________________________________________
Name: _________________________________________
Title: ________________________________________
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as SUBI Trustee
By: _______________________________________________
Name: _________________________________________
Title: ________________________________________
Acknowledged and Agreed:
GREYHOUND FUNDING LLC,
as the Issuer
By: _________________________________
Name: ___________________________
Title: __________________________
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely
as the Indenture Trustee
By: _________________________________
Name: ___________________________
Title: __________________________
RAVEN FUNDING LLC
By: _________________________________
Name: ___________________________
Title: __________________________
TABLE OF CONTENTS
Page
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ARTICLE V
DEFINITIONS....................................................................2
Section 5.1.Definitions......................................................2
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SERVICER.....................................3
Section 6.1. Organization and Power.........................................3
Section 6.2. Authorization, Execution and Validity..........................3
Section 6.3. No Conflict....................................................3
Section 6.4. Litigation.....................................................4
Section 6.5. Consents.......................................................4
Section 6.6. Year 2000 Compliance...........................................4
ARTICLE VII
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING
OF THE SOLD SUBI PORTFOLIO ....................................................4
Section 7.1. Servicing Obligations..........................................4
Section 7.2. Servicer Bound by Servicing Agreement..........................5
Section 7.3. Application of Proceeds........................................5
Section 7.4. Monthly Servicer Advances......................................6
Section 7.5. Payment of Fees and Expenses...................................6
Section 7.6. Servicing Compensation.........................................6
Section 7.7. Insurance Policies.............................................6
Section 7.8. Corporate Existence: Status; Merger............................8
Section 7.9. Indemnification................................................8
Section 7.10. Liens..........................................................8
Section 7.11. Record Keeping.................................................8
Section 7.12. Other Transactions.............................................9
Section 7.13. Amendment of Policies..........................................9
Section 7.14. Amendment of Leases............................................9
Section 7.15. Servicer Payment in Respect of Certain Leases and
Trust Vehicles ................................................9
ARTICLE VIII
STATEMENTS AND REPORTS........................................................11
Section 8.1. Reporting by the Servicer.....................................11
Section 8.2. Annual Accountants Reports....................................12
Section 8.3. Other Certificates and Notices from Servicer..................12
(i)
Page
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Section 8.4. Period End Dates.............................................13
ARTICLE IX
TERMINATION OF SERVICER.......................................................13
Section 9.1. Termination of Servicer as to Sold SUBI Portfolios...........13
Section 9.2. No Effect on Other Parties...................................15
ARTICLE X
ASSIGNMENT OF SERVICING AGREEMENT RIGHTS......................................15
Section 10.1. Assignment...................................................15
ARTICLE XI
MISCELLANEOUS.................................................................16
Section 11.1. Termination of Agreement.....................................16
Section 11.2. Amendment....................................................16
Section 11.3. Governing Law................................................17
Section 11.4. Notices......................................................17
Section 11.5. Third Party Beneficiary......................................17
Section 11.6. Severability.................................................17
Section 11.7. Binding Effect...............................................17
Section 11.8. Article and Section Headings.................................18
Section 11.9. Execution in Counterparts....................................18
Section 11.10. Further Assurances...........................................18
Section 11.11. Limitation of Liability......................................18
Section 11.12. Series Liabilities...........................................18
Section 11.13. No Petition..................................................19
Exhibit A - Form of Servicer Certificate
Exhibit B - Form of Quarterly Compliance Certificate
Schedule X - Period End Dates for 1999
(ii)