Exhibit 1.1
GREYHOUND FUNDING LLC
$375 million
Series 2001-1 Floating Rate Asset Backed Notes, Class A-1
$375 million
Series 2001-1 Floating Rate Asset Backed Notes, Class A-2
UNDERWRITING AGREEMENT
September _, 2001
X.X. Xxxxxx Securities Inc.,
As Representative of the several Underwriters named in Schedule 1,
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
GREYHOUND FUNDING LLC, a Delaware special purpose limited liability
company (the "Issuer"), proposes to issue and sell U.S. $375 million principal
amount of its Series 2001-1 Floating Rate Asset Backed Notes, Class A-1 (the
"Class A-1 Notes"), and U.S. $375 million principal amount of its Series
2001-1 Floating Rate Asset Backed Notes, Class A-2 (the "Class A-2 Notes";
collectively, with the Class A-1 Notes, the "Securities"). The Securities will
be issued pursuant to the Series 2001-1 Indenture Supplement, dated as of
August __, 2001 (the "Indenture Supplement") between the Issuer and The Chase
Manhattan Bank, as Indenture Trustee (the "Indenture Trustee"), the form of
which has been filed as Exhibit 4.3 to the Registration Statement (as defined
below), to the Base Indenture, dated as of June 30, 1999 (as amended or
modified from time to time, the "Base Indenture" and, together with the
Indenture Supplement, the "Indenture") between the Issuer and the Indenture
Trustee. The Issuer is a wholly-owned subsidiary of Raven Funding LLC ("SPV")
and an indirect wholly-owned subsidiary of PHH Vehicle Management Services LLC
("VMS") and VMS is a direct wholly-owned subsidiary of PHH Corporation
("PHH"). VMS, PHH and the Issuer hereby confirm their agreement with the
several underwriters named in Schedule 1 hereto (the "Underwriters")
concerning the purchase of the Securities from the Issuer by the Underwriters.
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Indenture.
1. Representations, Warranties and Agreements of the Issuer and VMS.
(a) The Issuer and VMS jointly and severally represent and warrant to, and
agree with, the several Underwriters on and as of the date hereof and the
Closing Date (as defined in Section 3) that:
(i) A registration statement on Form S-1 (No. 333-40708), and
amendments thereto, with respect to the Securities have (i) been prepared
by the Issuer, SPV and X.X. Xxxxxxxx Trust (the "Origination Trust") in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations (the "Rules
and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the -
Securities Act and (iii) become effective under the Securities Act.
Copies of such registration statement and the amendments to such
registration statement have been delivered by the Issuer, SPV and the
Origination Trust (collectively, the "Registrants") to you as the
representative (the "Representative") of the Underwriters. As used in
this Agreement, "Effective Time" means the date and the time as of which
such registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time of such registration
statement; "Preliminary Prospectus" means each prospectus included in
such registration statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with the
Commission by the Registrants with the consent of the Representative
pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means the registration statement referred to in this Section
1(a)(i), as amended at its Effective Time, including all information
contained in the final prospectus filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations in accordance with Section 4(a)
hereof and deemed to be a part of the Registration Statement as of the
Effective Time of the Registration Statement pursuant to paragraph (b) of
Rule 430A of the Rules and Regulations; and "Prospectus" means such final
prospectus, as first filed with the Commission pursuant to paragraph (1)
or (4) of Rule 424(b) of the Rules and Regulations. The Commission has
not issued any order preventing or suspending the use of any Preliminary
Prospectus;
(ii) The Registration Statement conforms (and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when they become effective or are filed with the Commission,
as the case may be, will conform) in all respects to the requirements of
the Securities Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the respective rules thereunder and do not
and will not, as of the applicable effective date (as to the Registration
Statement and any amendment thereto) and as of the applicable filing date
and the Closing Date (as to the Prospectus and any amendment or
supplement thereto) contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that no
representation or warranty is made as to (A) information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the
Registrants through the Representative by or on behalf of any Underwriter
specifically for inclusion therein or (B) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) of the Indenture Trustee under the Trust
Indenture Act; and the Indenture has been duly qualified under the Trust
Indenture Act and conforms in all material respects to the requirements
of the Trust Indenture Act and the applicable rules and regulations
thereunder;
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(iii) The Issuer has been duly formed as a limited liability company
and is validly existing and in good standing under the laws of the State
of Delaware, is qualified to do business and is in good standing as a
foreign limited liability company in each jurisdiction in which the
ownership or lease of property or the conduct of its business requires
such qualification, and has the requisite power and authority to own or
hold its properties and to conduct the business in which it is engaged as
described in the Prospectus;
(iv) The Issuer has the requisite power and authority to execute and
deliver this Agreement, the Securities, the Indenture and any other
Transaction Document to which it is a party and perform its obligations
hereunder and thereunder;
(v) Each of the Transaction Documents to which the Issuer is a party
has been duly authorized, executed and delivered by the Issuer and
constitutes the legal, valid and binding obligation of the Issuer
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other similar laws relating
to or affecting generally the enforcement of creditors' rights or by
general equitable principles;
(vi) The Issuer is not in violation of the LLC Agreement or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement or lease to which it is a party or by which it or its
properties may be bound. The execution and delivery of this Agreement and
the Transaction Documents and the incurrence of the obligations and
consummation of the transactions herein and therein contemplated will not
conflict with, or constitute a breach of or default under, the LLC
Agreement or any contract, indenture, mortgage, loan agreement or lease,
to which it is a party or by which it or its properties may be bound, or
any law, administrative regulation or court decree;
(vii) This Agreement has been duly authorized, executed and
delivered by the Issuer;
(viii) The Securities have been duly authorized for issuance, offer
and sale as contemplated by this Agreement and, when authenticated by the
Indenture Trustee and issued and delivered against payment of the
purchase price therefor, will constitute legal, valid and binding
obligations of the Issuer enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
or other similar laws relating to or affecting generally the enforcement
of creditors' rights or by general equitable principles;
(ix) No consent, approval, authorization, order, registration or
qualification of or with any court or any regulatory authority or other
governmental agency or body is required for the issuance, offer or sale
of the Securities by the Issuer in accordance with the terms of this
Agreement or for the consummation of the transactions contemplated by
this Agreement and the Transaction Documents except for the registration
of the Securities under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
the Securities Exchange Act of
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1934, as amended (the "Exchange Act") and applicable state securities
laws in connection with the purchase and distribution of the Securities
by the Underwriters and to the extent provided for in the Transaction
Documents;
(x) There are no legal or governmental proceedings pending to which
the Issuer is a party or of which any property of the Issuer is the
subject (other than any such proceedings involving the Issuer's property
which would not have a Material Adverse Effect (as defined herein)) and,
to the best of its knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(xi) The Issuer is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended;
(xii) As of the Closing Date, the representations and warranties of
the Issuer contained in the Transaction Documents to which the Issuer is
a party will be true and correct and are repeated herein as though fully
set forth herein;
(xiii) On and immediately after the Closing Date, the Issuer (after
giving effect to the issuance of the Securities and to the other
transactions related thereto as described in the Prospectus) will be
Solvent. As used in this paragraph, the term "Solvent" means, with
respect to a particular date, that on such date (A) the present fair
market value (or present fair saleable value) of the assets of the Issuer
is not less than the total amount required to pay the probable
liabilities of the Issuer on its total existing debts and liabilities
(including contingent liabilities) as they become absolute and matured,
(B) the Issuer is able to realize upon its assets and pay its debts and
other liabilities, contingent obligations and commitments as they mature
and become due in the normal course of business, (C) assuming the sale of
the Securities as contemplated by this Agreement and the Prospectus, the
Issuer is not incurring debts or liabilities beyond its ability to pay as
such debts and liabilities mature and (D) the Issuer is not engaged in
any business or transaction, and is not about to engage in any business
or transaction, for which its property would constitute unreasonably
small capital after giving due consideration to the prevailing practice
in the industry in which the Issuer is engaged. In computing the amount
of such contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount that, in the light of all the
facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability;
(xiv) The financial statements of the Issuer and the Origination
Trust (including the related notes) filed as part of the Registration
Statement or included in the Prospectus present fairly the financial
condition and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved;
(xv) Deloitte & Touche LLP, who have certified the financial
statements of the Issuer and the Origination Trust included in the
Prospectus, are independent public accountants as required by the
Securities Act and the Rules and Regulations during the
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periods covered by the financial statements on which they reported
contained in the Prospectus; and the selected financial data included in
the Prospectus present fairly the information therein and have been
compiled on a basis consistent with that of the audited financials
included in the Prospectus; and
(xvi) There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed as
exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
(b) VMS represents and warrants to, and agrees with, the several
Underwriters on and as of the date hereof and the Closing Date that:
(i) VMS (A) has been duly formed and is validly existing as a
limited liability company and is in good standing under the laws of the
State of Delaware, (B) is qualified to do business and is in good
standing as a foreign limited liability company in each jurisdiction in
which the ownership or lease of property or the conduct of its business
requires such qualification, except where such lack of qualification or
good standing would not have a material adverse effect on its condition
(financial or other), business or results of operations or its ability to
perform its obligations hereunder or under the Transaction Documents to
which it is a party (a "VMS Material Adverse Effect") and (C) has the
requisite power and authority to own or hold its properties and to
conduct the business in which it is engaged as described in the
Prospectus;
(ii) VMS has the requisite power and authority to execute and
deliver this Agreement and any Transaction Document to which it is a
party and perform its obligations hereunder and thereunder;
(iii) This Agreement and each of the Transaction Documents to which
VMS is a party has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency or other similar laws relating to or affecting
generally the enforcement of creditors' rights or by general equitable
principles;
(iv) VMS is not in violation of its organizational documents or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement or lease to which it is a party or by which it or its
properties may be bound which would have a VMS Material Adverse Effect.
The execution and delivery of this Agreement and the Transaction
Documents and the incurrence of the obligations and consummation of the
transactions herein and therein contemplated will not conflict with, or
constitute a breach of or default under any contract, indenture,
mortgage, loan agreement or lease, to which VMS is a party or by which it
or its properties may be bound, or any law, administrative regulation or
court decree, with only such exceptions as would not have a VMS Material
Adverse Effect, nor will such action result in any violation of its
organizational documents;
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(v) VMS possesses adequate certificates, licenses, authorities or
permits issued by appropriate governmental agencies or bodies necessary
to conduct the business now operated by it, with only such exceptions as
would not have a Material Adverse Effect, and has not received any notice
of proceedings relating to the revocation or modification of any such
certificate, authority or permit;
(vi) There are no legal or governmental proceedings pending to which
VMS, SPV or the Origination Trust is a party or of which any of its
property is the subject that, if determined adversely to it, individually
or in the aggregate, could reasonably be expected to have a VMS Material
Adverse Effect; and to the best of VMS's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened
by others;
(vii) As of the Closing Date, VMS's representations and warranties
contained in the Transaction Documents to which it is a party will be
true and correct and are repeated herein as though fully set forth
herein;
(viii) As of the Closing Date, the representations and warranties of
each of SPV and the Origination Trust in the Transaction Documents to
which it is a party will be true and correct and are repeated herein as
though fully set forth herein;
(ix) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in
the Preliminary Prospectus or the Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good
faith;
(x) Since the date as of which information is given in the
Prospectus, there has been no material adverse change or any development
involving a prospective material adverse change in its, or SPV's or the
Origination Trust's, condition, financial or otherwise, or in their
respective earnings, business affairs, management or business prospects,
whether or not arising in the ordinary course of business;
(xi) The Origination Trust has good and marketable title to the
Origination Trust Assets allocated to the Lease SUBI Portfolio and the
1999-1B Sold SUBI Portfolio, free and clear of Liens (except as permitted
by the Transaction Documents), and has not assigned to any person any of
its right, title or interest in any such Origination Trust Assets, or
obtained the release of any such prior assignment other than as described
in the Prospectus;
(xii) If all "employee benefit plans" subject to Title IV of ERISA
which VMS, or any entity which is a member of a "controlled group" of
which VMS is also a member, maintains or sponsors, were terminated on the
date hereof or on the Closing Date, there would be no unfunded
liabilities with respect to any such plan, its participants or
beneficiaries or with respect to the Pension Benefit Guarantee
Corporation;
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(xiii) SPV, as Initial Beneficiary, has made the appropriate
allocation of assets within the estate of the Origination Trust to the
appropriate SUBI Portfolios, as required by the Origination Trust
Documents;
(xiv) VMS is the sole member of SPV and owns its membership
interests therein free and clear of Liens; and
(xv) SPV is the sole common member of the Issuer and owns its
membership interests therein free and clear of Liens.
(c) PHH represents and warrants to, and agrees with, the several
Underwriters on and as of the date hereof and the Closing Date that:
(i) PHH (A) has been duly formed and is validly existing as a
corporation and is in good standing under the laws of the State of
Delaware, (B) is qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which the ownership or lease
of property or the conduct of its business requires such qualification,
except where such lack of qualification or good standing would not have a
material adverse effect on its condition (financial or other), business
or results of operations or its ability to perform its obligations
hereunder or under the PHH Guaranty (as defined herein) (a "PHH Material
Adverse Effect") and (C) has the requisite power and authority to own or
hold its properties and to conduct the business in which it is engaged;
(ii) PHH has the requisite power and authority to execute and
deliver this Agreement and the PHH Guaranty and to perform its
obligations hereunder and thereunder;
(iii) This Agreement has been duly authorized, executed and
delivered by it and constitutes its legal, valid and binding obligation
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other similar laws relating
to or affecting generally the enforcement of creditors' rights or by
general equitable principles;
(iv) The PHH Guaranty has been duly authorized by it and, when the
PHH Guaranty has been duly executed and delivered by it, the PHH Guaranty
will constitute its legal, valid and binding obligation enforceable in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency or other similar laws relating to or affecting
generally the enforcement of creditors' rights or by general equitable
principles;
(v) PHH is not in violation of its certificate or incorporation or
by-laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement or lease to which it is a party or by which it
or its properties may be bound which would have a PHH Material Adverse
Effect. The execution and delivery of this Agreement and the PHH Guaranty
and the incurrence of the obligations and consummation of the
transactions herein and therein contemplated will not conflict with, or
constitute a breach of or default
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under any contract, indenture, mortgage, loan agreement or lease, to
which PHH is a party or by which it or its properties may be bound, or
any law, administrative regulation or court decree, with only such
exceptions as would not have a PHH Material Adverse Effect, nor will such
action result in any violation of its certificate of incorporation or
by-laws;
(vi) PHH possesses adequate certificates, licenses, authorities or
permits issued by appropriate governmental agencies or bodies necessary
to conduct the business now operated by it, with only such exceptions as
would not have a PHH Material Adverse Effect, and has not received any
notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit; and
(vii) There are no legal or governmental proceedings pending to
which PHH is a party or of which any of its property is the subject that,
if determined adversely to it, individually or in the aggregate, could
reasonably be expected to have a PHH Material Adverse Effect; and to the
best of PHH's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
2. Purchase of the Securities. On the basis of the representations,
warranties and agreements contained herein, and subject to the terms and
conditions set forth herein, the Issuer agrees to issue and sell to each of
the Underwriters, severally and not jointly, and each of the Underwriters,
severally and not jointly, agrees to purchase from the Issuer, the principal
amount of Class A-1 Notes set forth opposite the name of such Underwriter on
Schedule 1 hereto at a purchase price equal to _____% of the principal amount
thereof and the principal amount of Class A-2 Notes set forth opposite the
name of such Underwriter on Schedule 2 hereto at a purchase price equal to
____% of the principal amount thereof. Interest on the Class A-1 Notes will
accrue during each Series 2001-1 Interest Period at the rate of .__% per annum
above One-Month LIBOR and interest on the Class A-2 Notes will accrue during
each Series 2001-1 Interest Period at the rate of .__% per annum above
One-Month LIBOR, in each case as determined in accordance with the Indenture.
The Issuer shall not be obligated to deliver any of the Securities except upon
payment for all of the Securities to be purchased as provided herein.
3. Delivery of and Payment for the Securities. (a) Delivery of and
payment for the Securities shall be made at the offices of Xxxxxxx Xxxxxxx &
Xxxxxxxx, New York, New York, or at such other place as shall be agreed upon
by the Representative and the Issuer, at 10:00 A.M., New York City time, on
August __, 2001, or at such other time or date, not later than seven full
business days thereafter, as shall be agreed upon by the Representative and
the Issuer (such date and time of payment and delivery being referred to
herein as the "Closing Date").
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Issuer by wire or book-entry transfer of
same-day funds to such account or accounts as the Issuer shall specify prior
to the Closing Date or by such other means as the parties hereto shall agree
prior to the Closing Date against delivery to the Representative, for the
account each of the Underwriters of the certificates evidencing the
Securities. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of the Underwriters hereunder. Upon delivery, the Securities shall be in
global form, registered in such names and in such denominations as the
Representative shall have
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requested in writing not less than two full business days prior to the Closing
Date. The Issuer agrees to make one or more global certificates evidencing the
Securities available for inspection by the Representative in New York, New
York at least 24 hours prior to the Closing Date.
4. Further Agreements of the Issuer and VMS. Each of the Issuer and
VMS, jointly and severally, agrees with each of the several Underwriters that:
(a) the Registrants will prepare the Prospectus in a form approved
by the Representative and file the Prospectus pursuant to Rule 424(b)
under the Securities Act not later than 10:00 A.M., New York City time,
on the day following the execution and delivery of this Agreement and the
Registrants will furnish to each of the Underwriters and counsel for the
Underwriters, without charge, as many copies of the Prospectus as may be
reasonably requested (the Prospectus and any amendments or supplements
thereto furnished shall be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX;
(b) the Registrants will furnish promptly to the Representative and
to counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith (the copies of the Registration Statement, each amendment
thereto and the exhibits thereto furnished to the Representative shall be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX);
(c) the Issuer will advise the Representative promptly and, if
requested, confirm such advice in writing, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(d) the Issuer will advise the Representative promptly and, if
requested, confirm such advice in writing, of the happening of any event
which makes any statement of a material fact made in the Prospectus
untrue or which requires the making of any additions to or changes in the
Prospectus (as amended or supplemented from time to time) in order to
make the statements therein, in the light of the circumstances under
which they were made, when the Prospectus is delivered, not misleading
or, if for any other reason it shall be necessary to amend or supplement
the Prospectus in order to comply with the Securities Act;
(e) if the delivery of a prospectus is required at any time prior to
the expiration of 180 days after the Effective Time in connection with
the offering or sale of the Securities and if at any such time any event
shall occur or condition exist as a result of which it is necessary, in
the opinion of counsel for the Underwriters or counsel for the Issuer, to
amend or supplement the Registration Statement or the Prospectus in order
that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the
time it is delivered to a
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purchaser, not misleading, or if it is necessary, in the opinion of such
counsel, at any such time to amend or supplement the Prospectus to comply
with the requirements of the Securities Act or the Rules and Regulations,
the Issuer shall promptly prepare such amendment or supplement as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements,
and the Issuer will furnish to the Underwriters such number of copies of
such amendment or supplement as the Underwriters may reasonably request;
(f) prior to making any amendment or supplement to the Prospectus or
the Registration Statement, the Issuer shall furnish a copy thereof to
the Representative and counsel for the Underwriters and the Issuer shall
not effect any such amendment or supplement to which the Representative
shall reasonably object by notice to the Issuer after a reasonable period
to review;
(g) the Issuer will advise the Representative, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish the Representative with as many copies thereof as may be
reasonably requested;
(h) the Issuer shall supply to each Underwriter, on a continuing
basis, three (3) copies of (x) all audited annual reports of the Issuer
and copies of all correspondence with, and information that the Issuer
and its Affiliates make available to, the Indenture Trustee in connection
with this Agreement and the Transaction Documents and the transactions
contemplated hereby and thereby and (y) all audited annual reports and
all unaudited interim reports of VMS;
(i) the Issuer shall promptly take from time to time such actions as
the Representative may reasonably request to qualify the Securities for
offering and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative may designate and to continue such
qualifications in effect for so long as required for the resale of the
Securities; and to arrange for the determination of the eligibility for
investment of the Securities under the laws of such jurisdictions as the
Representative may reasonably request; provided that the Issuer shall not
be obligated to qualify as a foreign corporation or limited liability
company in any jurisdiction in which it is not so qualified or to file a
general consent to service of process in any jurisdiction;
(j) as soon as practicable after the Effective Date of the
Registration Statement (it being understood that the Issuer shall have
until at least 410 days after the end of the Issuer's current fiscal
quarter), the Issuer shall make generally available to the Noteholders
and deliver to the Representative an earnings statement of the Issuer
(which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option of
the Issuer, Rule 158);
(k) the Issuer and VMS shall assist the Representative in arranging
for the Securities to be eligible for clearance and settlement through
The Depository Trust Company ("DTC"); ---
(l) for a period of 60 days from the date of the Prospectus, the
Issuer and VMS shall not, and shall cause their affiliates not to, offer
for sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement for, or announce any offer,
sale, contract for
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sale of or other disposition of any debt securities issued by the Issuer
or any asset-backed securities backed by equipment leases originated by
VMS or the Origination Trust (other than the Securities and those
securities described in the Prospectus to be issued by the Issuer),
without the prior written consent of the Representative;
(m) in connection with the offering of the Securities, until the
Representative has notified the Issuer of the completion of the resale of
the Securities, the Issuer and VMS shall not, and each of their
affiliated purchasers (as defined in Regulation M under the Exchange Act)
shall not, either alone or with one or more other persons, bid for or
purchase, for any account in which it or any of its affiliated purchasers
has a beneficial interest, any Securities, or attempt to induce any
person to purchase any Securities; and the Issuer and VMS shall not, and
shall cause each of their affiliated purchasers not to, make bids or
purchase for the purpose of creating actual, or apparent, active trading
in or of raising the price of the Securities;
(n) the Issuer and VMS shall do and perform all things required to
be done and performed by it under this Agreement that are within its
control prior to or after the Closing Date, and each of the Issuer and
VMS shall use its best efforts to satisfy all conditions precedent on its
part to the delivery of the Securities;
(o) neither the Issuer nor VMS shall take any action prior to the
Closing Date which would require the Registration Statement or the
Prospectus to be amended or supplemented pursuant to Section 4(e) of this
Agreement;
(p) the Issuer shall apply the net proceeds from the sale of the
Securities as set forth in the Prospectus under the heading "Use of
Proceeds";
(q) the Issuer and VMS shall use their best efforts to complete the
listing of the Securities on the Luxembourg Stock Exchange, subject only
to official notice of issuance;
(r) to the extent that the ratings to be provided with respect to
the Securities by S&P and Xxxxx'x is conditional upon the furnishing of
documents or the taking of any other actions by the Issuer or any of its
affiliates, the Issuer and VMS shall furnish such documents and take any
such other action that is reasonably requested by S&P or Moody's; and
(s) the Issuer shall furnish to the Representative copies of each
report and certificate and any financial information delivered to the
Indenture Trustee pursuant to the Indenture.
5. Underwriters' Representation, Warranty and Agreement Concerning
UK Sales. Each Underwriter, severally and not jointly, represents and warrants
to, and agrees with, the Issuer and VMS that it has not offered or sold and
will not offer or sell any Securities in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments, as principal or agent, for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995, it has complied and will
comply with the applicable provisions of the Financial Services Act 1986 with
respect to anything done by it in relation to the Securities in, from, or
otherwise involving the United Kingdom, and it has only issued or passed on,
and will only issue or pass on, in the
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United Kingdom any document received by it in connection with the offer or
sale of the Securities to a person who is of a kind described in Article 11(3)
of the Financial Services Act 1986 (Investment Advertisements) (Exemptions)
Order 1996 (as amended), or is a person to whom such document may otherwise be
lawfully issued or passed on.
6. Conditions of Underwriters' Obligations. The respective
obligations of the several Underwriters hereunder are subject to the accuracy,
on and as of the date hereof and the Closing Date, of the representations and
warranties of the Issuer, VMS and PHH contained herein, to the accuracy of the
statements of the Issuer, VMS, Avis Group Holdings, Inc. ("Avis") and PHH and
their respective officers made in any certificates delivered pursuant hereto,
to the performance by the Issuer and VMS of their obligations hereunder, and
to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 4(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with.
(b) The Prospectus (and any amendments or supplements thereto) shall
have been printed and copies distributed to the Underwriters as promptly
as practicable on or following the date of this Agreement or at such
other date and time as to which the Representative may agree; and no stop
order suspending the sale of the Securities in any jurisdiction shall
have been issued and no proceeding for that purpose shall have been
commenced or shall be pending or threatened.
(c) None of the Underwriters shall have discovered and disclosed to
the Issuer or VMS on or prior to the Closing Date that the Prospectus or
the Registration Statement or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of counsel
for the Underwriters, is material or omits to state any fact which, in
the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(d) All corporate proceedings and other legal matters incident to
the authorization, form and validity of each of the Transaction
Documents, the Registration Statement and the Prospectus, and all other
legal matters relating to the Transaction Documents and the transactions
contemplated thereby, shall be satisfactory in all material respects to
the Representative, and the Issuer, VMS, Avis, PHH, SPV, and the
Origination Trust shall have furnished to the Representative all
documents and information that they or their counsel may reasonably
request to enable them to pass upon such matters.
(e) The Issuer shall have furnished to the Representative a letter
(the "Initial Letter") of Deloitte and Touche, LLP, addressed to the
Underwriters and dated the date hereof, in form and substance
satisfactory to the Representative, concerning the accounting, financial
and statistical information set forth in the Prospectus.
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(f) The Issuer shall have furnished to the Representative a letter
(the "Bring-Down Letter") of Deloitte and Touche, LLP, addressed to the
Underwriters and dated the Closing Date (i) confirming that they are
independent public accountants with respect to the Issuer and the
Origination Trust within the meaning of Rule 101 of the Code of
Professional Conduct of the AICPA and its interpretations and rulings
thereunder, (ii) stating, as of the date of the Bring-Down Letter (or,
with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in
the Prospectus, as of a date not more than three business days prior to
the date of the Bring-Down Letter), that the conclusions and findings of
such accountants with respect to the financial information and other
matters covered by the Initial Letter are accurate and (iii) confirming
in all material respects the conclusions and findings set forth in the
Initial Letter.
(g) The Indenture Supplement shall have been duly executed and
delivered by the Issuer and the Indenture Trustee, and the Securities
shall have been duly executed and delivered by the Issuer and duly
authenticated by the Indenture Trustee.
(h) The Representative shall have received a letter from S&P stating
that the Securities have received a rating of "AAA" from S&P and a letter
from Moody's stating that the Securities have received a rating of "Aaa"
from Moody's.
(i) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or
the over-the-counter market shall have been suspended or limited, or
minimum prices shall have been established on any such exchange or market
by the Commission, by any such exchange or by any other regulatory body
or governmental authority having jurisdiction, or (ii) any moratorium on
commercial banking activities shall have been declared by federal or New
York state authorities or (iii) an outbreak or escalation of hostilities
or a declaration by the United States of a national emergency or war or
(iv) a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such) the effect of
which, in the case of this clause (iv), is, in the judgment of the
Representative, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or the delivery of the Securities on
the terms and in the manner contemplated by this Agreement and in the
Prospectus (exclusive of any amendment or supplement thereto).
(j) The Representative shall have received an opinion of Xxxxx &
Case LLP, special counsel to the Issuer, VMS, SPV, Avis, PHH and the
Origination Trust, dated as of the Closing Date and addressed to the
Underwriters in the form of Exhibit A attached hereto.
(k) The Representative shall have received an opinion of Xxxxxx
Xxxxxx, Vice President and Counsel to VMS, dated the Closing Date and
addressed to the Underwriters in the form of Exhibit B attached hereto.
(l) The Representative shall have received an opinion of the General
Counsel of Avis dated the Closing Date and addressed to the Underwriters
in the form of Exhibit C attached hereto.
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(m) The Representative shall have received an opinion of the General
Counsel of PHH dated the Closing Date and addressed to the Underwriters
in the form of Exhibit D attached hereto.
(n) The Representative shall have received an opinion of Xxxxxxx
Xxxxxxxx & Xxxx, counsel for the Indenture Trustee, dated the Closing
Date and addressed to the Underwriters and in form and substance
satisfactory to the Representative and to counsel for the Underwriters.
(o) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, counsel for the Wilmington Trust Company, as Origination
Trustee, and special Delaware counsel for the Issuer, VMS and SPV, dated
the Closing Date and addressed to the Underwriters, in the form of
Exhibit E attached hereto.
(p) The Representative shall have received an opinion of Xxxxx
Xxxxxxx Xxxxxxx & Xxxxx LLP, Maryland local counsel to the Issuer and
VMS, dated the Closing Date and addressed to the Underwriters, in form
and substance satisfactory to the Representative and to counsel for the
Underwriters and to the effect that none of the Origination Trust, SPV
nor the Issuer will be treated as an association taxable as a corporation
for Maryland state income or franchise tax purposes.
(q) The Representative shall have received an opinion of Xxxxxxx
Xxxxxxx & Xxxxxxxx, dated the Closing Date and addressed to the
Underwriters, with respect to the validity of the Securities and such
other matters as the Representative may reasonably request.
(r) The Representative shall have received a certificate or
certificates signed by two managers of the Issuer, dated the Closing
Date, stating that (i) the representations and warranties of the Issuer
in this Agreement and any Transaction Documents to which the Issuer is a
party are true and correct on and as of the Closing Date or, in the case
of the representations and warranties in the Transaction Documents, on
and as of the dates specified in such agreements; (ii) that the Issuer
has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder or under the Transaction Documents
at or prior to the Closing Date; (iii) the Registration Statement and the
Prospectus, as of the Effective Date, did not include any untrue
statement of a material fact and did not omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and since the Effective Date, no event has occurred which
should have been set forth in a supplement or amendment to the
Registration Statement or the Prospectus; and (iv) subsequent to the date
as of which information is given in the Prospectus, there has not been
any material adverse change in the general affairs, business, properties,
key personnel, capitalization, condition (financial or otherwise) or
results of operation of the Issuer except as set forth or contemplated in
the Prospectus.
(s) The Representative shall have received a certificate signed by
any two of the Managers, President, any Vice President and the Treasurer
of VMS, dated the Closing Date, in which such officers shall state that,
to the best of their respective knowledge (i) the representations and
warranties of VMS in this Agreement and any Transaction Documents to
which VMS is a party are true and correct on and as of the Closing Date
or, in the case of the representations and warranties in the Transaction
Documents, on and as of the dates specified in
-14-
such agreements; (ii) VMS has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder or
under the Transaction Documents at or prior to the Closing Date; (iii)
the Registration Statement and the Prospectus, as of the Effective Date,
did not include any untrue statement of a material fact and did not omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and since the Effective Date,
no event has occurred which should have been set forth in a supplement or
amendment to the Registration Statement or the Prospectus; and (iv)
subsequent to the date as of which information is given in the
Prospectus, there has not been any material adverse change in the general
affairs, business, properties, key personnel, capitalization, condition
(financial or otherwise) or results of operation of VMS except as set
forth or contemplated in the Prospectus.
(t) The Representative shall have received a certificate signed by
two managers of SPV, dated the Closing Date, in which such managers shall
state that, to the best of their respective knowledge (i) the
representations and warranties of SPV in the Transaction Documents to
which SPV is a party are true and correct on and as of the dates
specified in such agreements; (ii) SPV has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder or under the Transaction Documents at or prior to the Closing
Date; and (iii) subsequent to the date as of which information is given
in the Prospectus, there has not been any material adverse change in the
general affairs, business, properties, key personnel, capitalization,
condition (financial or otherwise) or results of operation of SPV except
as set forth or contemplated in the Prospectus.
(u) The Representative shall have received a certificate signed by
two officers of VMS, in its capacity as Servicer of the Origination
Trust, dated the Closing Date, in which the Servicer shall state that, to
the best of its knowledge (i) the representations and warranties
regarding the Origination Trust in the Transaction Documents are true and
correct on and as of the dates specified in such agreements; (ii) the
Origination Trust has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder or under
the Transaction Documents at or prior to the Closing Date; and (iii)
subsequent to the date as of which information is given in the
Prospectus, there has not been any material adverse change in the general
affairs, business, properties, key personnel, capitalization, condition
(financial or otherwise) or results of operation of the Origination Trust
except as set forth or contemplated in the Prospectus.
(v) The Representative shall have received a certificate signed by
two officers of Avis, dated the Closing Date, substantially to the effect
set forth in Exhibit F hereto.
(w) The Representative shall have received a certificate signed by
two officers of PHH, dated the Closing Date, in which such officers shall
state that, to the best of their knowledge (i) the representations and
warranties of PHH in this Agreement are true and correct on and as of the
dates specified herein; (ii) PHH has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date; and (iii) subsequent to the
date as of which information is given in the Prospectus, there has not
been any material adverse change in the general affairs, business,
properties, key personnel, capitalization, condition (financial or
otherwise) or results of operation of PHH.
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(x) The Representative shall have received evidence satisfactory to
it that the Issuer shall have issued the Series 2001-1 Senior Preferred
Membership Interests on the terms described in the Prospectus and that
the Issuer shall have repaid the Series 1999-3 Notes in the amount
described in the Prospectus.
(y) The performance guaranty of PHH in the form filed as Exhibit
10.15 to the Registration Statement (the "PHH Guaranty") shall have been
duly executed and delivered by PHH.
(z) The interest rate cap in the form filed as Exhibit 10.13 to the
Registration Statement having a notional amount at least equal to the
aggregate Lease Balance of all Fixed Rate Leases allocated to the Lease
SUBI Portfolio as of the Closing Date, plus, in the case of all such
Fixed Rate Leases that are Closed-End Leases, the aggregate Stated
Residual Values of the related Leased Vehicles, and an effective strike
rate based on the eurodollar rate set forth therein in effect at the most
equal to the weighted average fixed rate of interest on such Fixed Rate
Leases minus 0.65% per annum shall have been duly executed and delivered
by Bank of America, National Association to the Indenture Trustee.
(aa) An interest rate cap in the form filed as Exhibit 10.14 to the
Registration Statement and otherwise satisfying the requirements of a
Series 2001-1 Required Lease Rate Cap shall have been duly executed and
delivered by The Chase Manhattan Bank to the Indenture Trustee.
(bb) The Representative shall have received a certificate signed by
an officer of SPV, dated the Closing Date, substantially to the effect
set forth in Exhibit G hereto.
(cc) The Representative shall have received a certificate signed by
an officer of the Issuer, dated the Closing Date, substantially to the
effect set forth in Exhibit H hereto.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
7. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representative, in its absolute discretion, by notice given
to and received by the Issuer prior to delivery of and payment for the
Securities if, prior to that time, any of the events described in Sections
6(i), 6(r)(iv), 6(s)(iv), 6(t)(iii), 6(u)(iii), 6(v)(iii) or 6(w)(iii) shall
have occurred and be continuing.
8. Defaulting Underwriters. (a) If, on the Closing Date, any
Underwriter defaults in the performance of its obligations under this
Agreement, the Representative may make arrangements for the purchase of the
Securities which such defaulting Underwriter agreed but failed to purchase by
other persons satisfactory to the Issuer and the Representative, but if no
such arrangements are made within 36 hours after such default, the Issuer may
make arrangements for the purchase of the Securities which the defaulting
Underwriter agreed but failed to purchase by other persons satisfactory to the
Representative, but if no such arrangements are made within 72 hours after
such default, this Agreement shall terminate without liability on the part of
the non-defaulting Underwriters or the Issuer, except that the
-16-
Issuer will continue to be liable for the payment of expenses to the extent
set forth in Sections 9 and 13 and except that the provisions of Sections 10
and 11 shall not terminate and shall remain in effect. As used in this
Agreement, the term "Underwriters" includes, for all purposes of this
Agreement unless the context otherwise requires, any party not listed in
Schedule 1 hereto that, pursuant to this Section 8, purchases Securities which
a defaulting Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to the Issuer or any non-defaulting Underwriter
for damages caused by its default. If other persons are obligated or agree to
purchase the Securities of a defaulting Underwriter, either the Representative
or the Issuer may postpone the Closing Date for up to seven full business days
in order to effect any changes that in the opinion of counsel for the Issuer
or counsel for the Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement, and the
Issuer agrees to promptly prepare any amendment or supplement that effects any
such changes.
9. Reimbursement of Underwriters' Expenses. If (a) this Agreement
shall have been terminated pursuant to Section 7 or 8, (b) the Issuer shall
fail to tender the Securities for delivery to the Underwriters for any reason
permitted under this Agreement or (c) the Underwriters shall decline to
purchase the Securities for any reason permitted under this Agreement, VMS
shall reimburse the Underwriters for such out-of-pocket expenses (including
reasonable fees and disbursements of counsel) as shall have been reasonably
incurred by the Underwriters in connection with this Agreement and the
proposed purchase and resale of the Securities. If this Agreement is
terminated pursuant to Section 8 by reason of the default of one or more of
the Underwriters, VMS shall not be obligated to reimburse any defaulting
Underwriter on account of such expenses.
10. Indemnification. (a) Each of the Issuer and VMS shall, jointly
and severally, indemnify and hold harmless each Underwriter, its affiliates,
their respective officers, directors, shareholders, partners, trustees,
employees, representatives and agents, and each person, if any, who controls
any Underwriter within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 10(a) and Section 11 as
an Underwriter), from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof (including, without limitation,
any loss, claim, damage, liability or action relating to purchases and sales
of the Securities), to which that Underwriter may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Prospectus, the Registration Statement or
the Prospectus or in any amendment or supplement thereto or (ii) the omission
or alleged omission to state in the Preliminary Prospectus, the Registration
Statement, the Prospectus or in any amendment or supplement thereto a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and shall reimburse each Underwriter promptly upon
demand for any legal or other expenses reasonably incurred by that Underwriter
in connection with investigating or defending or preparing to defend against
or appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such
-17-
expenses are incurred; provided, however, that the Issuer and VMS shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with any Underwriters'
Information; and provided, further, that with respect to any such untrue
statement in or omission from the Preliminary Prospectus the indemnity
agreement contained in this Section 10(a) shall not inure to the benefit of
any such Underwriter to the extent that the sale to the person asserting any
such loss, claim, damage, liability or action was an initial resale by such
Underwriter and any such loss, claim, damage, liability or action of or with
respect to such Underwriter results from the fact that both (A) copy of the
Prospectus was not sent or given to such person within the time required by
the Securities Act and (B) the untrue statement in or omission from the
Preliminary Prospectus was corrected in the Prospectus unless, in either case,
such failure to deliver the Prospectus was a result of non-compliance by the
Issuer with Section 4(a) hereof.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Issuer, VMS and their respective affiliates, officers,
directors, employees, representatives and agents, and each person, if any, who
controls the Issuer or VMS within the meaning of the Securities Act or the
Exchange Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Issuer or VMS may
become subject, whether commenced or threatened, under the Securities Act, the
Exchange Act, any other federal or state statutory law or regulation, at
common law or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Prospectus ,
the Registration Statement, the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state in the Preliminary
Prospectus, the Registration Statement, the Prospectus or in any amendment or
supplement thereto a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with any
Underwriters' Information furnished by such Underwriter, and shall reimburse
the Issuer and VMS, as the case may be, for any legal or other expenses
reasonably incurred by the Issuer or VMS in connection with investigating or
defending or preparing to defend against or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party pursuant to Section 10(a) or 10(b), notify the
indemnifying party in writing of the claim or the commencement of that action;
provided, however, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have under this Section 10 except
to the extent that it has been materially prejudiced (through the forfeiture
of substantive rights or defenses) by such failure; and, provided, further,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than under
this Section 10. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume
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the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 10 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that an indemnified party shall
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel for the indemnified party will be
at the expense of such indemnified party unless (1) the employment of counsel
by the indemnified party has been authorized in writing by the indemnifying
party, (2) the indemnified party has reasonably concluded (based upon advice
of counsel to the indemnified party) that there may be legal defenses
available to it or other indemnified parties that are different from or in
addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based upon advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which case
the indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party has
not in fact employed counsel reasonably satisfactory to the indemnified party
to assume the defense of such action within a reasonable time after receiving
notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm of
attorneys (in addition to any local counsel) at any one time for all such
indemnified party or parties. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 10(a) and 10(b), shall use all
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim. No indemnifying party shall be liable for any
settlement of any such action or claim effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment for the plaintiff in any such
action or claim, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party (which consent shall not be unreasonably
withheld), effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless
such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding.
The obligations of the Issuer, VMS and the Underwriters in this
Section 10 and in Section 11 are in addition to any other liability that the
Issuer, VMS or the Underwriters, as the case may be, may otherwise have,
including in respect of any breaches of representations, warranties and
agreements made herein by any such party.
11. Contribution. If the indemnification provided for in Section 10
is unavailable or insufficient to hold harmless an indemnified party under
Section 10(a) or 10(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Issuer and VMS on
the one hand and the Underwriters on the
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other from the offering of the Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Issuer and VMS on the one hand
and the Underwriters on the other with respect to the statements or omissions
that resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Issuer and VMS on the one hand and the Underwriters
on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities
purchased under this Agreement (before deducting expenses) received by or on
behalf of the Issuer on the one hand, and the total discounts and commissions
received by the Underwriters with respect to the Securities purchased under
this Agreement, on the other, bear to the total gross proceeds from the sale
of the Securities under this Agreement, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to the Issuer or VMS or information supplied by the
Issuer or VMS on the one hand or to any Underwriters' Information on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Issuer, VMS and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 11 were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 11 shall be deemed to include, for purposes of this Section 11, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 11, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total discounts and commissions received by such Underwriter with
respect to the Securities purchased by it under this Agreement exceeds the
amount of any damages which such Underwriter has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 11 are several in proportion to their respective purchase
obligations and not joint.
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Issuer, VMS,
PHH and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except as
provided in Sections 10 and 11 with respect to affiliates, officers,
directors, employees, representatives, agents and controlling persons of the
Issuer, VMS and the Underwriters. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 12, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
13. Expenses. The Issuer agrees with the Underwriters to pay (a) the
costs incident to the authorization, issuance, sale, preparation and delivery
of the Securities and any
-20-
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto and the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (c) the costs of reproducing
and distributing each of the Transaction Documents; (d) the costs incident to
the preparation, printing and delivery of the certificates evidencing the
Securities, including stamp duties and transfer taxes, if any, payable upon
issuance of the Securities; (e) the reasonable fees and expenses of counsel to
the Issuer, SPV, Avis, PHH, the Origination Trust, VMS and independent
accountants; (f) the reasonable fees and expenses of counsel to the
Underwriters; (g) the fees and expenses of qualifying the Securities under the
securities laws of the several jurisdictions and of preparing, printing and
distributing Blue Sky Memoranda (including related fees and expenses of
counsel for the Underwriters); (h) any fees charged by rating agencies for
rating the Securities; (i) the fees and expenses of the Indenture Trustee and
any paying agent (including reasonable related fees and expenses of any
counsel to such parties); (j) all expenses and application fees incurred in
connection with the approval of the Securities for book-entry transfer by DTC;
and (k) all other costs and expenses incident to the performance of the
obligations of the Issuer, PHH and VMS under this Agreement which are not
otherwise specifically provided for in this Section 13; provided, however,
that except as provided in this Section 13 and Section 9, the Underwriters
shall pay their own costs and expenses.
14. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Issuer, VMS, PHH and the
Underwriters contained in this Agreement or made by or on behalf of the
Issuer, VMS, Avis, PHH or the Underwriters pursuant to this Agreement or any
certificate delivered pursuant hereto shall survive the delivery of and
payment for the Securities and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any of them or any of their respective
affiliates, officers, directors, employees, representatives, agents or
controlling persons.
15. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Representative or the Underwriters, shall be delivered
or sent by mail or telecopy transmission to X.X. Xxxxxx Securities Inc.,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx
(telecopier no.: (000) 000-0000);
(b) if to the Issuer, shall be delivered or sent by mail or telecopy
transmission to the address of the Issuer set forth in the Registration
Statement, Attention: Xxxxxx Xxxxxx (telecopier no.: (000) 000-0000; or
(c) if to VMS or PHH, shall be delivered or sent by mail or telecopy
transmission to 000 Xxxxxxxxxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000,
Attention: Xxxx Xxxxxx, telecopier no.: (000) 000-0000;
-21-
provided that any notice to an Underwriter pursuant to Section 10(c) shall
also be delivered or sent by mail to such Underwriter at its address set forth
on the signature page hereof. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Issuer, VMS
and PHH shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Underwriters by the Representative.
16. Definition of Terms. For purposes of this Agreement, (a) the
term "business day" means any day on which the New York Stock Exchange, Inc.
is open for trading and (b) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
17. Underwriters' Information. The parties hereto acknowledge and
agree that, for all purposes of this Agreement, the Underwriters' Information
consists solely of the following information in the Prospectus: the second and
eleventh paragraphs under the heading "Underwriting" and the second sentence
in the tenth paragraph under the heading "Underwriting".
18. Guarantee. (a) PHH hereby unconditionally guarantees to the
Underwriters the due and punctual payment and performance of all obligations
of VMS under this Agreement.
(b) PHH hereby agrees that its obligations pursuant to paragraph (a)
shall be construed as a continuing, absolute and unconditional obligation
without regard to (i) the validity, regularity or enforceability of this
Agreement or (ii) any other circumstance whatsoever which constitutes, or
might be construed to constitute, an equitable or legal discharge of VMS, in
bankruptcy or in any other instance. When pursuing its rights and remedies
hereunder against PHH, the Underwriters may, but shall be under no obligation
to, pursue such rights and remedies as it may have against VMS or any other
Person or any right of offset with respect thereto, and any failure by the
Underwriters to pursue such other rights or remedies or to collect any
payments from VMS or any such other Person or to exercise any such right of
offset shall not relieve PHH of any liability hereunder and shall not impair
or affect the rights and remedies, whether express, implied or available as a
matter of law, of the Underwriters against PHH.
19. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
20. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
21. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
22. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
-22-
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Issuer, VMS, PHH and the
several Underwriters in accordance with its terms.
Very truly yours,
GREYHOUND FUNDING LLC
By:
-----------------------------
Name:
Title:
PHH VEHICLE MANAGEMENT SERVICES, LLC
By:
-----------------------------
Name:
Title:
PHH CORPORATION
By:
-----------------------------
Name:
Title:
Accepted:
X.X. XXXXXX SECURITIES INC.
By:
-------------------------
Authorized Signatory
For itself and as Representative of the
several Underwriters
SCHEDULE 1
Principal Amount of Principal Amount of
Underwriters Class A-1 Notes Class A-2 Notes
------------ --------------- ---------------
X.X. Xxxxxx Securities
Inc. $_________ $_________
[Name] _________ _________
[Name] _________ _________
[Name] _________ _________
_________ _________
Total $ _________ $_________
EXHIBIT A
FORM OF OPINIONS OF XXXXX & CASE LLP
The Representative shall have received the favorable opinion, dated
as of the Closing Date, of White & Case LLP, special counsel to the Issuer,
SPV, Avis, PHH and the Origination Trust, in form and substance, and subject
to such qualifications and assumptions as are, satisfactory to the
Representative and to counsel for the Underwriters, addressed to the
Underwriters and to the effect that:
(a) The Registration Statement has become effective under the
Securities Act and the Indenture has been qualified under the Trust
Indenture Act. The Prospectus was filed with the Commission as required
by Rule 424 under the Securities Act. To the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose is pending or
threatened by the Commission;
(b) The Registration Statement, as of the Effective Date, and the
Prospectus, as of its date, and any further amendments or supplements
thereto, as of their respective dates, made by the Registrants prior to
the Closing Date (other than the financial statements and other financial
and statistical data contained therein, as to which such counsel need
express no opinion) appear on their face to comply as to form in all
material respects with the requirements of the Securities Act and the
Rules and Regulations and the Indenture conforms in all material respects
to the requirements of the Trust Indenture Act and the applicable rules
and regulations thereunder;
(c) The Series 2001-1 Investor Notes, the Indenture and the other
Transaction Documents conform in all material respects to the
descriptions thereof contained in the Prospectus.
(d) The Series 2001-1 Investor Notes are in the form contemplated by
the Base Indenture and the Indenture Supplement, and when duly executed
by the Issuer and authenticated by the Indenture Trustee in the manner
provided in the Base Indenture and the Indenture Supplement and issued
and delivered against payment of the purchase price therefor, will
constitute valid and binding obligations of the Issuer, enforceable
against the Issuer in accordance with their terms and will be entitled to
the benefits of the Base Indenture and the Indenture Supplement.
(e) Each of the Transaction Documents to which the Issuer, VMS, PHH
Consumer Lease, SPV, Avis, PHH or the Origination Trust (each, a "Party")
is a party, and which by its terms provides it is to be governed by New
York law, will constitute the valid and binding agreement of such Party,
enforceable against such Party in accordance with its terms, except (i)
as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' fights generally and by general equitable principles
(regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law) and (ii) such counsel need not express an
opinion as to the enforceability of any rights to indemnification which
are violative of the public policy underlying any law, rule or
regulation.
(f) The statements in the Prospectus under the headings "Risk
Factors--Our Indirect Ownership of the Leases, the Vehicles and the
Receivables Could Result in Reduced Payments to You" and "--Insolvency or
Bankruptcy of Vehicle Management Services Could Result in
A-1
Delayed or Reduced Payments to You," "Material Legal Aspects of the
Origination Trust," "Material Legal Aspects of the Leases and the
Vehicles", "Employee Benefit Considerations", "Structural
Summary--Material Federal and Certain State Income Tax Consequences" and
"Material Federal and Certain State Income Tax Consequences--U.S. Federal
Income Tax Consequences" and in the fourth paragraph under the heading
"Material Federal and Certain State Income Tax Consequences--State
Income Tax Consequences", to the extent that they constitute summaries of
matters of law, documents or proceedings or legal conclusions relating to
U.S. federal law, have been prepared or reviewed by such counsel and are
correct in all material respects.
(g) To the knowledge of such counsel after due inquiry, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments to which the Issuer, SPV, VMS or the Origination Trust is a
party that would be required to be described in the Prospectus or filed
as exhibits to the Registration Statement by the Securities Act or by the
Rules and Regulations which have not been described or filed as exhibits
to the Registration Statement or incorporated therein by reference as
permitted by the Rules and Regulations.
(h) None of the Parties nor Avis or PHH is an "investment company"
as such term is defined in the Investment Company Act of 1940, as
amended.
(i) The execution, delivery and performance by VMS, Avis, PHH and
the Issuer of the Underwriting Agreement, the issuance of the Securities
to the Underwriters and the offering of the Securities, and the
execution, delivery and performance by each of the Parties of each of the
Transaction Documents to which it is a party and the consummation by each
of the Parties of the applicable transactions provided for therein do not
and will not (a) require any authorization, consent, approval, license or
other action by or in respect of, or notice to or filing with, any
federal or New York state governmental, legislative, judicial,
administrative or regulatory body, agency or official, except for the
filing of the applicable financing statements; or (b) contravene, violate
or constitute a default under any provision of any federal or New York
state law, rule or regulation or any order, writ, judgment or decree, of
which such counsel is aware after due inquiry, of any New York State or
federal court or governmental authority binding upon any such Party, Avis
or PHH.
(j) It is not necessary to qualify the LLC Agreement or the
Origination Trust Documents under the Trust Indenture Act.
(k) The provisions of the Transfer Agreement are effective to create
a valid and enforceable ownership or security interest, as the case may
be, in the Lease SUBI and the Fleet Receivable SUBI and the other
Transferred Assets (as defined in the Transfer Agreement) in favor of the
Issuer.
(l) The provisions of the Asset Sale Agreement are effective to
create a valid and enforceable ownership or security interest, as the
case may be, in the Sold Assets (as defined therein).
(m) The provisions of the Receivables Purchase Agreement and the
Receivables Assignments are effective to create a valid and enforceable
ownership or security interest, as the case may be, in the Transferred
Fleet Receivables (as defined therein) described therein.
A-2
(n) The provisions of the Indenture and the Series 2001-1 Indenture
Supplement are effective to create a valid and enforceable security
interest in the Collateral and the Series 2001-1 Collateral and the
Proceeds thereof in favor of the Indenture Trustee.
(o) Each of the financing statements naming VMS, PHH Consumer Lease,
SPV or the Issuer as debtor (the "Financing Statements") filed with the
Secretary of State of New York and Nassau County Clerk's office (the
"Filing Offices") were when filed in the appropriate form for filing
under the Uniform Commercial Code of the State of New York, as it was in
effect on the dates of such filings. The ownership or security interest,
as the case may be, of the respective secured parties in the collateral
described in the Financing Statements and the proceeds thereof
constitutes a continuing perfected first priority ownership or security
interest, as the case may be, therein under the Uniform Commercial Code
of the State of New York, as it is in effect on the date hereof (the "New
York UCC"). No further filing or other action is necessary to perfect and
maintain the perfection and priority of such ownership or security
interest, as the case may be, against third parties.
(p) Section 9-301 of the New York UCC provides that the local law in
which a debtor is located governs perfection of a security interest in
the collateral described in the Financing Statements and that the local
law in which a debtor is located governs the effect of perfection or
nonperfection and the priority of a nonpossessory security interest in
such collateral except to the extent that such collateral consists of
negotiable documents, goods, instruments, money or tangible chattel
paper. Section 9-301 of the New York UCC also provides that the local law
of the jurisdiction in which the collateral is located governs the effect
of the perfection or nonperfection and the priority of a nonpossessory
security interest in negotiable documents, goods, instruments, money and
tangible chattel paper.
(q) VMS, SPV and the Issuer are located in the State of Delaware
under Section 9-307(e) of the New York UCC. PHH Consumer Lease is located
in the State of Maryland under Section 9-307(e) of the New York UCC. The
filing of a financing statement in the New York Filing Offices naming
VMS, PHH Consumer Lease, SPV or the Issuer, as debtor, and covering any
of the collateral described in the Financing Statements on or after July
1, 2001 would have no effect under the New York UCC. There are no
financing statements on file in the New York Filing Offices naming VMS,
PHH Consumer Lease, SPV or the Issuer as debtor covering any of the
collateral described in the Financing Statements other than the Financing
Statements.
(r) The Lease SUBI Certificate is either an "instrument", a
"certificated security", "chattel paper" or a "general intangible", as
such terms are defined in the New York UCC. Each of the Fleet Receivable
SUBI Certificates is either an "instrument," a "certificated security," a
"general intangible" or an "account," as such terms are defined in the
New York UCC.
(s) With respect to the delivery of the SUBI Certificates to the
Issuer by the SPV, pursuant to the Transfer Agreement:
(I) Assuming that (i) each of the SUBI Certificates is an
"instrument" (as defined in the New York UCC), and have been
delivered to, and are continually in the possession of the Issuer in
the State of New York and (ii) if the Issuer is deemed to be a
purchaser of the SUBI Certificates, the Issuer took possession of
the SUBI Certificates in good faith and without knowledge that the
purchase violates the rights of a secured party, the Issuer has a
perfected
A-3
ownership or security interest, as the case may be, in the SUBI
Certificates, as determined in accordance with Article 9 of the New
York UCC.
(II) Assuming that (i) each of the SUBI Certificates is a
"certificated security" (as defined in the New York UCC), and have
been delivered to, and are continually in the possession of the
Issuer in the State of New York and (ii) the SUBI Certificates are
registered in the name of the Issuer, the Issuer will have a
perfected ownership or security interest, as the case may be, in the
SUBI Certificates, as determined in accordance with Article 9 of the
New York UCC.
(III) Assuming that the SUBI Certificates are "general
intangibles", "chattel paper" or "accounts" (in the case of the
Fleet Receivables) (as defined in the New York UCC), the perfection
and priority of the ownership interest or security interest, as the
case may be, in the SUBI Certificates received by the Issuer under
the Transfer Agreement in favor of the Issuer is addressed in
paragraph (o) of this opinion.
(t) The Indenture Trustee, for the benefit of the Series 2001-1
Investor Noteholders, has and will continue to have a first priority
perfected security interest in the Collateral and the Series 2001-1
Collateral pledged pursuant to the Indenture.
(u) In the event of the filing of a bankruptcy petition with respect
to VMS under the Bankruptcy Code, the transfer of Transferred Receivables
and the Receivables Property (each as defined in the Receivables Purchase
Agreement) from VMS to SPV would not be recharacterized by a court as a
pledge to secure borrowings but rather properly would be held as a valid
sale or contribution, as applicable, of all of VMS' right, title and
interest in the Transferred Fleet Receivables and, therefore, a court
properly would hold that (i) the Transferred Fleet Receivables and the
proceeds thereof are not part of VMS' bankruptcy estate under Section 541
of the Bankruptcy Code and (ii) the automatic stay under section 362 of
the Bankruptcy Code would not apply to the Transferred Fleet Receivables
or the proceeds thereof.
(v) In the event of the filing of a bankruptcy petition with respect
to VMS under the Bankruptcy Code, the transfer of Leases, Vehicles,
Existing Interests and other Sold Assets (as defined in the Asset
Purchase Agreement) from VMS to SPV (the "VMS Transferred Assets") would
not be recharacterized by a court as a pledge to secure borrowings but
rather properly would be held as a valid sale or contribution, as
applicable, of all of VMS' right, title and interest in the VMS
Transferred Assets and, therefore, a court properly would hold that (i)
the VMS Transferred Assets and the proceeds thereof are not part of VMS'
bankruptcy estate under Section 541 of the Bankruptcy Code and (ii) the
automatic stay under section 362 of the Bankruptcy Code would not apply
to the VMS Transferred Assets or the proceeds thereof.
(w) In the event of the filing of a bankruptcy petition with respect
to PHH Consumer Lease under the Bankruptcy Code, the transfer of Consumer
Leases and other Sold Assets (as defined in the Asset Purchase Agreement)
from PHH Consumer Lease to SPV (the "Consumer Lease Transferred Assets")
would not be recharacterized by a court as a pledge to secure borrowings
but rather properly would be held as a valid sale or contribution, as
applicable, of all of PHH Consumer Lease's right, title and interest in
the Consumer Lease Transferred Assets and, therefore, a court properly
would hold that (i) the Consumer Lease Transferred Assets and the
proceeds thereof are not part of PHH Consumer Xxxxxx's bankruptcy estate
under Section 541 of
A-4
the Bankruptcy Code and (ii) the automatic stay under section 362 of the
Bankruptcy Code would not apply to the Consumer Lease Transferred Assets
or the proceeds thereof.
(x) Although such counsel assumes no responsibility for the
accuracy, completeness or fairness of the Prospectus (except as provided
in paragraphs (c) and (f) above), nothing has come to the attention of
such counsel to cause such counsel to believe that the Registration
Statement, as of the Effective Date, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, or that the Prospectus contains any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading (except for
financial statements and other financial or statistical data set forth in
the Prospectus, as to which such counsel need make no statement).
(y) In a case under the Bankruptcy Code in which PHH or any of its
Affiliates (other than the Issuer or SPV) was the debtor, subject to
certain facts, assumptions and qualifications specified therein, it would
not be a proper exercise by a court of its equitable discretion to
disregard the separate existence of the Origination Trust so as to order
substantive consolidation under the Bankruptcy Code of the assets and
liabilities of the Origination Trust with the bankruptcy estate of PHH or
any of its Affiliates (other than the Issuer or SPV).
(z) In a case under the Bankruptcy Code in which PHH or any of its
Affiliates (other than the Origination Trust or the Issuer) was the
debtor, subject to certain facts, assumptions and qualifications
specified therein, it would not be a proper exercise by a court of its
equitable discretion to disregard the separate existence of SPV so as to
order substantive consolidation under the Bankruptcy Code of the assets
and liabilities of SPV with the bankruptcy estate of PHH or any of its
Affiliates (other than the Issuer or the Origination Trust).
(aa) State law will govern the determination of what persons or
entities have the authority to file a bankruptcy petition on behalf of a
Delaware limited liability company.
(bb) The Series 2001-1 Investor Notes will be treated as debt for
United States federal income tax purposes.
(cc) None of the Issuer, SPV or the Origination Trust will be
classified as an association or a publicly traded partnership taxable as
a corporation for United States federal income tax purposes.
A-5
EXHIBIT B
FORM OF OPINIONS OF COUNSEL TO VMS
The Representative shall have received the favorable opinion, dated
as of the Closing Date, of Xxxxxx Xxxxxx, Vice President and Counsel of VMS,
in form and substance satisfactory to the Representative and counsel for the
Underwriters, and addressed to the Underwriters and to the effect that:
1. PHH PersonaLease Corporation, a Maryland corporation
("ConsumerLease" together with VMS, the Issuer, SPV and the Origination
Trust, the "Parties," and each individually, a "Party"), has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Maryland.
2. To my best knowledge, there are no pending actions or suits or
judicial, arbitral, rule-making administrative or other proceedings to
which any Party is a party or of which any property or assets of any
Party is the subject which singularly or in the aggregate, if determined
adversely to a Party, could reasonably be expected to have a Material
Adverse Effect or a VMS Material Adverse Effect and to my best knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
3. To my best knowledge, no Party is (A) in violation of its
respective limited liability company agreement or certificate of
incorporation and by-laws, (B) in default in any material respect, and no
event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which it is a party or by which it is bound or to which any
of its property or assets are subject or (C) in violation in any material
respect of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject.
4. None of the execution and delivery by each of the Parties of the
Underwriting Agreement and each Transaction Document to which it is a
party, as the case may be, the consummation by the Parties of the
transactions contemplated thereby or compliance by the Parties with any
of the provisions thereof, including the issuance of the Securities to
the Underwriters and the offering of the Securities, (i) conflicts with
or results in any breach of any provision of the respective
organizational documents of the Parties, (ii) results in a default (or
gives rise to any right of termination, cancellation or acceleration) or
results in the creation or imposition of any mortgage, lien, security
interest, charge or encumbrance upon any of the property or assets of the
Parties, under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, agreement, lease or other instrument
or obligation known to me after due inquiry to which any of the Parties
is a party or by which its respective assets may be bound or (iii)
contravenes any provision of any Federal law or the law of the State of
Maryland, statute,
B-2
rule or regulation or any order, writ, injunction or decree of which such
counsel is aware or any Federal or Maryland State court or governmental
entity to which the Parties are subject.
5. ConsumerLease has the power and authority to execute and deliver
each document to which it is a party and to perform its obligations
thereunder, and all corporate action required to be taken for the due and
proper authorization, execution and delivery of each Transaction Document
to which it is a party and the transactions contemplated thereby have
been duly and validly taken.
6. Each Transaction Document to which ConsumerLease is a party has
been duly executed and delivered by ConsumerLease.
EXHIBIT C
FORM OF OPINIONS OF GENERAL COUNSEL TO AVIS
The Representative shall have received the favorable opinion, dated
as of the Closing Date, of the General Counsel of Avis, in form and substance
satisfactory to the Representative and counsel for the Underwriters, and
addressed to the Underwriters and to the effect that:
1. Avis Group Holdings, Inc. ("Avis"), a Delaware corporation, has
been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware.
2. To such counsel's best knowledge, there are no pending actions or
suits or judicial, arbitral, rule-making administrative or other
proceedings to which Avis is a party or of which any property or assets
of Avis is the subject which singularly or in the aggregate, if
determined adversely to Avis, could reasonably be expected to have an
Avis Material Adverse Effect and to such counsel's best knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
3. To such counsel's best knowledge, Avis is not (A) in violation of
its certificate of incorporation or by-laws, (B) in default in any
material respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument known to such counsel after due inquiry
to which it is a party or by which it is bound or to which any of its
property or assets are subject or (C) in violation in any material
respect of any law, ordinance, governmental rule, regulation or court
decree known to such counsel after due inquiry to which it or its
property or assets may be subject.
4. The execution and delivery by Avis of the ARAC Guaranty and the
consummation by Avis of the transactions contemplated thereby does not
(i) conflict with or result in any breach of any provision of the
certificate of incorporation or by-laws of Avis or (ii) result in a
default (or gives rise to any right of termination, cancellation or
acceleration) or result in the creation or imposition of any mortgage,
lien, security interest, charge or encumbrance upon any of the property
or assets of Avis, under any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, license, agreement, lease or other
instrument or obligation known to such counsel after due inquiry to which
Avis is a party or by which its respective assets may be bound.
5. Avis has the power and authority to execute and deliver the ARAC
Guaranty and to perform its obligations thereunder, and all corporate
action required to be taken for the due and proper authorization,
execution and delivery of the ARAC Guaranty and the transactions
contemplated thereby have been duly and validly taken.
6. The ARAC Guaranty has been duly executed and delivered by Avis.
EXHIBIT D
FORM OF OPINIONS OF GENERAL COUNSEL TO PHH
The Representative shall have received the favorable opinion, dated
as of the Closing Date, of the General Counsel of PHH, in form and substance
satisfactory to the Representative and counsel for the Underwriters, and
addressed to the Underwriters and to the effect that:
1. PHH Corporation ("PHH"), a Delaware corporation, has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware.
2. To such counsel's best knowledge, there are no pending actions or
suits or judicial, arbitral, rule-making administrative or other
proceedings to which PHH is a party or of which any property or assets of
PHH is the subject which singularly or in the aggregate, if determined
adversely to PHH, could reasonably be expected to have a PHH Material
Adverse Effect and to such counsel's best knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened
by others.
3. To such counsel's best knowledge, PHH is not (A) in violation of
its certificate of incorporation or by-laws, (B) in default in any
material respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument known to such counsel after due inquiry
to which it is a party or by which it is bound or to which any of its
property or assets are subject or (C) in violation in any material
respect of any law, ordinance, governmental rule, regulation or court
decree known to such counsel after due inquiry to which it or its
property or assets may be subject.
4. The execution and delivery by PHH of the Underwriting Agreement
and the PHH Guaranty and the consummation by PHH of the transactions
contemplated thereby does not (i) conflict with or result in any breach
of any provision of the certificate of incorporation or by-laws of PHH or
(ii) result in a default (or gives rise to any right of termination,
cancellation or acceleration) or result in the creation or imposition of
any mortgage, lien, security interest, charge or encumbrance upon any of
the property or assets of PHH, under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, agreement,
lease or other instrument or obligation known to such counsel after due
inquiry to which PHH is a party or by which its respective assets may be
bound.
5. PHH has the power and authority to execute and deliver the
Underwriting Agreement and the PHH Guaranty and to perform its
obligations thereunder, and all corporate action required to be taken for
the due and proper authorization, execution and delivery of the
Underwriting Agreement and the PHH Guaranty and the transactions
contemplated thereby have been duly and validly taken.
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6. The Underwriting Agreement and the PHH Guaranty have been duly
executed and delivered by PHH.
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EXHIBIT E
FORM OF OPINIONS OF XXXXXXXX, XXXXXX & FINGER
The Representative shall have received the favorable opinion, dated
as of the Closing Time, of Xxxxxxxx, Xxxxxx & Finger, counsel to Wilmington
Trust Company, as the SUBI Trustee, and special Delaware counsel to the
Issuer, VMS, SPV and the Origination Trust, in form and substance satisfactory
to the Representative and to counsel for the Underwriters and addressed to the
Underwriters, to the effect that:
1. The Origination Trust has been duly formed and is validly
existing in good standing as a business trust under the Delaware Business
Trust Act, 12 Del. C. s. 3801, et seq. (the "Act"), and has the power
and authority under the Trust Agreement and the Act to conduct its
business as described in the Prospectus and to execute, deliver and
perform its obligations under the Servicing Agreement, to issue the SUBI
Certificates and to own, lease and operate its properties and to conduct
its business as described in the Origination Trust Agreement.
2. The Origination Trust Agreement constitutes a legal, valid and
binding agreement of the parties thereto, and is enforceable against such
parties, in accordance with its terms.
3. The Servicing Agreement, the Custodian Agreement and the Lockbox
Agreement have been duly authorized, executed and delivered by the
Origination Trust.
4. Each of the SUBI Certificates have been duly authorized, executed
and delivered by the Trust and are validly issued and entitled to the
benefits of the Origination Trust Agreement.
5. Assuming that (i) separate and distinct records are maintained
for each SUBI created pursuant to the Origination Trust Agreement, (ii)
the assets associated with each SUBI are held and accounted for
separately from the other assets of the Origination Trust, or any other
SUBI, (iii) the notice of the limitation on liabilities of a series
provided in Section 3804(a) of the Act is continuously set forth in the
Certificate of Trust and (iv) the Origination Trust Agreement
continuously provides for those matters described in (i), (ii) and (iii)
of this paragraph 5, each SUBI shall be entitled to the benefits of the
limitation on interseries liability set forth in Section 3804(a) of the
Delaware Business Trust Act.
6. The execution, delivery and performance by the Origination Trust
of the Servicing Agreement, the Custodian Agreement and the Lockbox
Agreement, the issuance by the Origination Trust of the SUBI Certificates
and the consummation by the Origination Trust of the transactions
contemplated thereby do not violate (i) any of the provisions of the
Origination Trust Agreement, (ii) any applicable Delaware law, rule or
regulation, or (iii) to our knowledge, without independent investigation,
any contract,
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indenture, mortgage, loan agreement, note lease or other instrument to
which the Origination Trust is a party, by which it may be bound or to
which its assets are subject.
7. Neither the execution, delivery and performance by the
Origination Trust of the Servicing Agreement, the Custodian Agreement or
the Lockbox Agreement, the issuance by the Origination Trust of the SUBI
Certificates nor the consummation by the Origination Trust of the
transactions contemplated thereby requires the consent or approval of,
the withholding of objection on the part of, the giving of notice to, the
filing, registration or qualification with, or the taking of any other
acting in respect of, any governmental authority or agency of the State
of Delaware, other than the filing of the Certificate of Trust with the
Secretary of State.
8. Assuming that for federal income tax purposes the Origination
Trust will not be classified as an association or a publicly traded
partnership under Section 7704 of the Internal Revenue Code of 1986, as
amended, the Origination Trust will not be classified as an association
or a publicly traded partnership for income tax purposes under the laws
of the State of Delaware.
9. VMS has been duly formed and is validly existing in good standing
as a limited liability company under the laws of the State of Delaware.
10. SPV has been duly formed and is validly existing in good
standing as a limited liability company under the laws of the State of
Delaware.
11. The Issuer has been duly formed and is validly existing in good
standing as a limited liability company under the laws of the State
of Delaware.
12. Under the Delaware Limited Liability Company Act (6 Del.
C.s. 18-101, et seq.) (the "LLC Act") and the VMS Limited Liability
Company Agreement ("VMS Agreement"), VMS has all necessary limited
liability company power and authority to conduct its business and
described in the Prospectus and to execute and deliver, and to perform
its obligations under, the Underwriting Agreement and each of the
Transaction Documents to which it is a party.
13. Under the LLC Act and the SPV Limited Liability Company
Agreement ("SPV Agreement"), SPV has all necessary limited liability
company power and authority to conduct its business as described in the
Prospectus and to execute and deliver, and to perform its obligations
under, the Transaction Documents to which it is a party.
14. Under the LLC Act and the Issuer Limited Liability Company
Agreement (the "Issuer Agreement"), the Issuer has all necessary limited
liability company power and authority to conduct its business as
described in the Prospectus and to execute and deliver, and to perform
its obligations under, the Underwriting Agreement and the Transaction
Documents to which it is a party.
15. Under the LLC Act and the VMS Agreement, the execution and
delivery by VMS of the Underwriting Agreement and the Transaction
Documents to which it is a
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party, and the performance by VMS of its obligations thereunder, have
been duly authorized by all necessary limited liability company action on
the part of VMS.
16. Under the LLC Act and the SPV Agreement, the execution and
delivery by the SPV of the Transaction Documents to which it is a party,
and the performance by the SPV of its obligations thereunder, have been
duly authorized by all necessary limited liability company action on the
part of the SPV.
17. Under the LLC Act and the Issuer Agreement, the execution and
delivery by the Issuer of the Underwriting Agreement and the Transaction
Documents to which it is a party, and the performance by the Issuer of
its obligations thereunder, have been duly authorized by all necessary
limited liability company action on the part of the Issuer.
18. The execution and delivery by VMS of the Underwriting Agreement
and the Transaction Documents to which it is a party, and the performance
by VMS of its obligations thereunder, do not violate (i) any Delaware
law, rule or regulation, or (ii) the VMS Agreement.
19. The execution and delivery by the SPV of the Transaction
Documents to which it is a party, and the performance by the SPV of its
obligations thereunder, do not violate (i) any Delaware law, rule or
regulation, or (ii) the SPV Agreement.
20. The execution and delivery by the Issuer of the Underwriting
Agreement and the Transaction Documents to which it is a party, and the
performance by the Issuer of its obligations thereunder, do not violate
(i) any Delaware law, rule or regulation, or (ii) the Issuer Agreement.
21. No authorization, consent, approval, order, filing or
qualification of or with any Delaware court or any Delaware governmental
or administrative body is required solely in connection with the
execution and delivery by VMS of the Underwriting Agreement and the
Transaction Documents to which it is a party, and the performance by VMS
of its obligations thereunder.
22. No authorization, consent, approval, order, filing or
qualification of or with any Delaware court or any Delaware governmental
or administrative body is required solely in connection with the
execution and delivery by the SPV of the Transaction Documents to which
it is a party, and the performance by the SPV of its obligations
thereunder (other than the filing of financing statements).
23. No authorization, consent, approval, order, filing or
qualification of or with any Delaware court or any Delaware governmental
or administrative body is required solely in connection with the
execution and delivery by the Issuer of the Underwriting Agreement and
the Transaction Documents to which it is a party, and the performance by
the Issuer of its obligations thereunder or the issuance of the
Securities to the Underwriters and the offering of the Securities (other
than the filing of financing statements and except that such counsel need
express no opinion as to state securities laws).
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24. The SPV Agreement constitutes a legal, valid and binding
agreement of VMS, as sole economic member (the "SPV Member"), and is
enforceable against the SPV Member, in accordance with its terms.
25. The Issuer Agreement constitutes a legal, valid and binding
agreement of SPV, as the sole common member (the "Common Member"), and is
enforceable against the Common Member, in accordance with its terms.
26. If properly presented to a Delaware court, a Delaware court
applying Delaware law would conclude that (i) in order for a Person to
file a voluntary bankruptcy petition on behalf of the SPV, the prior
unanimous consent of the Managers (as defined in the SPV Agreement),
including each of the Independent Managers (as defined in the SPV
Agreement), as provided for in Section 4.4(b) of the SPV Agreement, is
required and (ii) such provision, contained in Section 4.4(b) of the SPV
Agreement, that requires the prior unanimous consent of the Managers (as
defined in the SPV Agreement), including each of the Independent Managers
(as defined in the SPV Agreement), in order for a Person to file a
voluntary bankruptcy petition on behalf of the SPV, constitutes a legal,
valid and binding agreement of the SPV Member, and is enforceable against
the SPV Member, in accordance with its terms.
27. If properly presented to a Delaware court, a Delaware court
applying Delaware law would conclude that (i) in order for a Person to
file a voluntary bankruptcy petition on behalf of the Issuer, the prior
unanimous consent of the Managers, including the Independent Manager, and
the affirmative vote of Preferred Members holding Preferred Membership
Interests of at least 66-2/3% of the aggregate stated liquidation
preference of all Preferred Membership Interests then outstanding, voting
as a single class, in person or by proxy at a special meeting called for
the purpose, or by unanimous written consent of the Preferred Members
without such meeting, as provided for in Section 3.4(b) and Section
9.2(f) of the Issuer Agreement, is required and (ii) such provision,
contained in Section 3.4(b) and Section 9.2(f) of the Issuer Agreement,
that requires the prior unanimous consent of the Managers, including the
Independent Manager, and the affirmative vote of Preferred Members
holding Preferred Membership Interests of at least 66-2/3% of the
aggregate stated liquidation preference of all Preferred Membership
Interests then outstanding, voting as a single class, in person or by
proxy at a special meeting called for the purpose, or by unanimous
written consent of the Preferred Members without such meeting, in order
for a Person to file a voluntary bankruptcy petition on behalf of the
Issuer, constitutes a legal, valid and binding agreement of the Common
Member, and is enforceable against the Common Member, in accordance with
its terms.
28. Under the LLC Act and the SPV Agreement, the Bankruptcy (as
defined in the SPV Agreement) or dissolution of the SPV Member will not,
by itself, cause the SPV to be dissolved or its affairs to be wound up.
29. Under the LLC Act and the Issuer Agreement, the occurrence of an
Insolvency Event with respect to, or dissolution of, the Common Member
will not, by itself, cause the Issuer to be dissolved or its affairs to
be wound up.
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30. While under the LLC Act, on application to a court of competent
jurisdiction, a judgment creditor of the SPV Member may be able to charge
the SPV Member's share of any profits and losses of the SPV and the SPV
Member's right to receive distributions of the SPV's assets (the "SPV
Member's Interest") with payment of the unsatisfied amount of the
judgment with interest, to the extent so charged, the judgment creditor
of the SPV Member has only the rights of an assignee of the SPV Member's
Interest, and a judgment creditor of the SPV Member may not attach
specific SPV assets directly. Thus, under the LLC Act, a judgment
creditor of the SPV Member may not satisfy its claims against the SPV
Member by asserting a claim against the assets of the SPV.
31. While under the LLC Act, on application to a court of competent
jurisdiction, a judgment creditor of the Common Member may be able to
charge the Common Member's share of any profits and losses of the Issuer
and the Common Member's right to receive distributions of the Issuer's
assets (the "Common Member's Interest") with payment of the unsatisfied
amount of the judgment with interest, to the extent so charged, the
judgment creditor of the Common Member has only the rights of an assignee
of the Common Member's Interest, and a judgment creditor of the Common
Member may not attach specific Issuer assets directly. Thus, under the
LLC Act, a judgment creditor of the Common Member may not satisfy its
claims against the Common Member by asserting a claim against the assets
of the Issuer.
32. Under the LLC Act (i) the SPV is a separate legal entity, and
(ii) the existence of the SPV as a separate legal entity shall continue
until the cancellation of the SPV Certificate of Formation.
33. Under the LLC Act (i) the Issuer is a separate legal entity, and
(ii) the existence of the Issuer as a separate legal entity shall
continue until the cancellation of the Issuer Certificate of Formation.
34. None of VMS, the SPV or the Issuer will be treated as an
association taxable as a corporation for Delaware state income tax
purposes.
35. Each of the financing statements naming the Issuer or SPV and
filed in the State of Delaware (the "Financing Statements") in connection
with the Transaction Documents is or was in an appropriate form for
filing with the Secretary of State of Delaware.
36. Each of the "in lieu" financing statements naming VMS, SPV or
the Issuer filed in the State of Delaware (the "New Financing
Statements") in connection with the Transaction Documents is in the
appropriate form for filing with the Secretary of State of Delaware.
37. Insofar as Article 9 of the Uniform Commercial Code as in effect
in the State of Delaware (the "UCC") is applicable (without regard to
principles of conflict of laws), and assuming that the security interest
created by the Indenture in favor of the Trustee in the Collateral and
the proceeds thereof has been duly created and has attached, then, (A)
such security interest is a perfected security interest in and against
all right, title and interest of the Issuer in and to that part of the
Collateral that constitutes "accounts",
E-5
"chattel paper" or "general intangibles", as such terms are defined in
the UCC, and the proceeds thereof and (B) such security interest is prior
to any other security interest granted by the Issuer that is perfected
solely by the filing of financing statements under the UCC in the State
of Delaware, excluding purchase money security interests under Section
9-103 of the UCC and temporarily perfected security interests in proceeds
under Section 9-315 of the UCC.
38. Insofar as Article 9 of the Uniform Commercial Code as in effect
in the State of Delaware (the "UCC") is applicable (without regard to
principles of conflict of laws), and assuming that the security interest
created by the Indenture in favor of the Trustee in the Series 2001-1
Collateral and the proceeds thereof has been duly created and has
attached, then, upon the filing of the Financing Statements relating to
the Series 2001-1 Collateral with the Secretary of State of Delaware, (A)
such security interest will be a perfected security interest in and
against all right, title and interest of the Issuer in and to that part
of the Series 2001-1 Collateral that constitutes "accounts', "chattel
paper" or "general intangibles", as such terms are defined in the UCC,
and the proceeds thereof and (B) such security interest will be prior to
any other security interest granted by the Issuer that is perfected
solely by the filing of financing statements under the UCC in the State
of Delaware, excluding purchase money security interests under Section
9-103 of the UCC and temporarily perfected security interests in proceeds
under Section 9-315 of the UCC.
39. Insofar as Article 9 of the UCC is applicable (without regard to
principles of conflict of laws), and assuming that the security interest
created by the Transfer Agreement in favor of the Issuer in the
Transferred Assets and the proceeds thereof pursuant to the Transfer
Agreement has been duly created and has attached, (A) such security
interest is a perfected security interest in and against all right, title
and interest of the SPV in and to that part of the Transferred Assets
that constitutes "accounts", "chattel paper" or "general intangibles", as
such terms are defined in the UCC, and the proceeds thereof and (B) such
security interest is prior to any other security interest granted by SPV
that is perfected solely by the filing of financing statements under the
UCC in the State of Delaware, excluding purchase money security interests
under Section 9-103 of the UCC and temporarily perfected security
interests in proceeds under Section 9-315 of the UCC.
40. Insofar as Article 9 of the UCC is applicable (without regard to
principles of conflict of laws), and assuming that the security interest
created by the Asset Purchase Agreement and the Additional Equipment
Assets Assignment Agreement in favor of SPV in that part of the Sold
Assets and the Additional Equipment Assets that constitutes "accounts",
"chattel paper" or "general intangibles", as such terms are defined in
the UCC, and the proceeds thereof has been duly created and has attached,
then upon the filing of the New Financing Statements with the Secretary
of State of Delaware (A) such security interest will be a perfected
security interest in and against all right, title and interest of the VMS
in and to that part of the Sold Assets and the Additional Equipment
Assets that constitutes "accounts", "chattel paper" or "general
intangibles", as such terms are defined in the UCC, and the proceeds
thereof and (B) such security interest will be prior to any other
security interest granted by VMS that is perfected solely by the filing
of financing statements under the UCC in the State of Delaware, excluding
purchase money
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security interests under Section 9-103 of the UCC and temporarily
perfected security interests in proceeds under Section 9-315 of the UCC.
41. Insofar as Article 9 of the UCC is applicable (without regard to
principles of conflict of laws), and assuming that the security interest
created by the Receivables Purchase Agreement and the Receivables
Assignments in favor of SPV in that part of the Transferred Fleet
Receivables that constitutes "accounts" or "general intangibles", as such
terms are defined in the UCC, and the proceeds thereof has been duly
created and has attached, then upon the filing of the New Financing
Statements with the Secretary of State of Delaware (A) such security
interest will be a perfected security interest in and against all right,
title and interest of the VMS in and to that part of the Transferred
Fleet Receivables that constitutes "accounts" or "general intangibles",
as such terms are defined in the UCC, and the proceeds thereof and (B)
such security interest will be prior to any other security interest
granted by VMS that is perfected solely by the filing of financing
statements under the UCC in the State of Delaware, excluding purchase
money security interests under Section 9-103 of the UCC and temporarily
perfected security interests in proceeds under Section 9-315 of the UCC.
42. Wilmington Trust Company ("Wilmington Trust") is duly
incorporated and is validly existing in good standing as a banking
corporation with trust powers under the laws of the State of Delaware.
43. Wilmington Trust has the power and authority to execute, deliver
and perform its obligations under the Origination Trust Agreement.
44. The Origination Trust Agreement has been duly authorized,
executed and delivered by Wilmington Trust.
45. The execution, delivery and performance by Wilmington Trust of
the Origination Trust Agreement does not conflict with or constitute a
breach of the charter or by-laws of Wilmington Trust.
46. No consent, approval or authorization of, or registration with
or notice to, any governmental authority or agency of the State of
Delaware or the United States of America governing the banking or trust
powers of Wilmington Trust is required for the execution, delivery or
performance by Wilmington Trust of the Origination Trust Agreement.
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EXHIBIT F
OFFICERS' CERTIFICATE OF AVIS GROUP HOLDINGS, INC.
The Representative shall have received an Officers' Certificate, dated the
Closing Date, of two officers of Avis to the effect that:
1. To the best of his or her knowledge, subsequent to the date as of
which information is given in the Prospectus, there has not been any
material adverse change in the general affairs, business, properties, key
personnel, capitalization, condition (financial or otherwise) or results
of operation of Avis.
2. Avis (A) has been duly formed and is validly existing as a
corporation and is in good standing under the laws of the State of
Delaware, (B) is qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which the ownership or lease
of property or the conduct of its business requires such qualification,
except where such lack of qualification or good standing would not have a
material adverse effect on its condition (financial or other), business
or results of operations or its ability to perform its obligations under
the ARAC Guaranty (a "Material Adverse Effect") and (C) has the requisite
power and authority to own or hold its properties and to conduct the
business in which it is engaged.
3. Avis has the requisite power and authority to execute and deliver
the ARAC Guaranty and to perform its obligations thereunder.
4. The ARAC Guaranty has been duly authorized, executed and
delivered by Avis and constitutes a legal, valid and binding obligations
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other similar laws relating
to or affecting generally the enforcement of creditors' rights or by
general equitable principles.
5. Avis is not in violation of its certificate or incorporation or
by-laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement or lease to which it is a party or by which it
or its properties may be bound which would have a Material Adverse
Effect. The execution and delivery of the ARAC Guaranty and the
incurrence of the obligations and consummation of the transactions
therein contemplated will not conflict with, or constitute a breach of or
default under any contract, indenture, mortgage, loan agreement or lease,
to which Avis is a party or by which it or its properties may be bound,
or any law, administrative regulation or court decree, with only such
exceptions as would not have a Material Adverse Effect, nor will such
action result in any violation of its certificate of incorporation or
by-laws.
EXHIBIT G
OFFICER'S CERTIFICATE OF RAVEN FUNDING LLC
The Representative shall have received an Officer's Certificate, dated the
Closing Date, of a manager of SPV to the effect that:
1. The Transfer Agreement creates a valid and continuing security
interest (as defined in the UCC) in the Transferred Assets in favor of
the Issuer which security interest is prior to all other Liens, and is
enforceable as such against creditors of and purchasers from SPV.
2. SPV has received all consents and approvals required by the terms
of any of the Transferred Assets to the transfer of the Transferred
Assets to the Issuer pursuant to the Transfer Agreement.
3. SPV has not authorized the filing of any financing statement
against SPV that includes a description of collateral covering the
Transferred Assets other than any financing statement relating to the
security interest granted to the Issuer under the Transfer Agreement.
EXHIBIT H
OFFICER'S CERTIFICATE OF GREYHOUND FUNDING LLC
The Representative shall have received an Officer's Certificate, dated the
Closing Date, of a manager of the Issuer to the effect that:
1. The Issuer has good title to the Collateral free and clear of all
Liens, other than Permitted Liens.
2. The Issuer has received all consents and approvals required by
the terms of any of the Collateral to the pledge of the Collateral to the
Indenture Trustee pursuant to the Indenture.
3. The SUBI Certificates have been delivered to the Indenture
Trustee.
4. The Issuer has not authorized the filing of any financing
statement against the Issuer that includes a description of collateral
covering the Collateral other than any financing statement relating to
the security interest granted to the Indenture Trustee under the
Indenture.
