Exhibit 3.8
AMENDMENT NO. 1
DATED AS OF JUNE 18, 2003
AMONG
RAVEN FUNDING LLC,
AS INITIAL BENEFICIARY,
PHH Vehicle Management Services, LLC,
AS UTI TRUSTEE,
AND
WILMINGTON TRUST COMPANY,
AS DELAWARE TRUSTEE
TO AMENDED AND RESTATED ORIGINATION TRUST AGREEMENT
DATED AS OF JUNE 30, 1999
TABLE OF CONTENTS
Page
SECTION 1. CERTAIN DEFINED TERMS..................................................................................1
SECTION 2. DIRECTION TO VMS.......................................................................................1
SECTION 3. AMENDMENT TO SECTION 5 OF ORIGINATION TRUST AGREEMENT..................................................1
SECTION 4. AMENDMENT TO SECTION 9 OF ORIGINATION TRUST AGREEMENT..................................................2
SECTION 5. REPRESENTATIONS AND WARRANTIES.........................................................................2
Section 5.1 Affirmation of Representations and Warranties......................................................2
Section 5.2 Due Authorization..................................................................................2
Section 5.3 Binding Effect.....................................................................................3
Section 5.4 No Consent.........................................................................................3
SECTION 6. CONDITIONS PRECEDENT...................................................................................3
SECTION 7. MISCELLANEOUS..........................................................................................3
Section 7.1 Duplicate Originals................................................................................3
Section 7.2 Ratification and Effect............................................................................3
Section 7.3 GOVERNING LAW......................................................................................3
Section 7.4 Headings...........................................................................................3
Section 7.5 Counterparts.......................................................................................4
Section 7.6 Severability of Provisions.........................................................................4
(i)
This AMENDMENT No. 1 (this "First Amendment"), dated as of June 18, 2003,
to the Amended and Restated Origination Trust Agreement (the "Origination Trust
Agreement"), dated as of June 30, 1999, among Raven Funding LLC ("SPV"), as
Initial Beneficiary and Settlor, PHH Vehicle Management Services, LLC ("VMS"),
as UTI Trustee, and Wilmington Trust Company, as Delaware Trustee, is among SPV,
as Initial Beneficiary, VMS, as UTI Trustee, and Wilmington Trust Company, as
Delaware Trustee. Terms used herein but not defined shall have the meaning set
forth for such terms in the Origination Trust Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to (i) Section 9.1 of the Origination Trust Agreement,
(ii) Section 14.1 of the Sold SUBI Supplement 1999-1A to Origination Trust
Agreement, dated as of June 30, 1999, as amended as of October 28, 1999 (the
"Sold SUBI Supplement 1999-1A), among SPV, VMS and Wilmington Trust Company and
(iii) Section 14.1 of the Sold SUBI Supplement 1999-1B to Origination Trust
Agreement, dated as of June 30, 1999 (the "Sold SUBI Supplement 1999-1B), among
SPV, VMS and Wilmington Trust Company, and subject to the terms and conditions
of this First Amendment, SPV wishes to amend the Origination Trust Agreement as
herein provided, and directs VMS to execute this First Amendment; and
WHEREAS, the parties hereto have duly authorized the execution and delivery
of this First Amendment.
NOW, THEREFORE, for and in consideration of the premises, and other good
and valuable consideration the receipt and sufficiency of which are
acknowledged, it is mutually covenanted and agreed, that the Origination Trust
Agreement be amended and supplemented as follows:
SECTION 1. CERTAIN DEFINED TERMS
Certain capitalized terms used herein, and not defined herein, shall have
the respective meanings assigned to such terms in the Origination Trust
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
SECTION 2. DIRECTION TO VMS
SPV directs VMS to enter into this First Amendment.
SECTION 3. FIRST AMENDMENT TO SECTION 5 OF ORIGINATION TRUST AGREEMENT
(a) Section 5.1(a) of the Origination Trust Agreement is hereby amended by
renumbering the existing subsection (v) as section (vi) and adding the following
new subsection (v) before the last "or" in that section:
", (v) the pledging of any Trust Assets or entering into any guaranty with
limited recourse to any Trust Assets in connection with any Securitization
of such Trust Assets, subject to the limitations of Section 3804(a) of the
Business Trust Statute"
(b) Section 5.1(b)(iii) of the Origination Trust Agreement is hereby
amended and restated in its entirety by the following:
"(iii) make loans or extend credit on behalf of the Trust (other than any
extension of credit by the issuance of a guaranty with limited recourse to
any Trust Assets in connection with any Securitization of such Trust
Assets),"
(c) Section 5.1(b)(ix) of the Origination Trust Agreement is hereby amended
and restated in its entirety by the following:
"(ix) except for the acquisition of Trust Assets and agreements relating to
any Securitization, including the pledging of any Trust Assets and entering
into any guaranty in connection with any Securitization of such Trust
Assets, and activities ancillary thereto, enter into any agreements or
contracts."
SECTION 4. FIRST AMENDMENT TO SECTION 9 OF ORIGINATION TRUST AGREEMENT
The second clause of Section 9.6(vi) of the Origination Trust Agreement is
hereby amended and restated in its entirety as follows:
"(ii) guarantee or otherwise become liable for any obligations of the
Initial Beneficiary Group, except for the issuance of guarantees with
limited recourse to any Trust Assets and the pledging of any Trust Assets
in connection with any Securitization of such Trust Assets,"
SECTION 5. REPRESENTATIONS AND WARRANTIES
Each of SPV and VMS hereby represents and warrants, as follows, as of the
date hereof:
Section 5.1 Affirmation of Representations and Warranties
Each representation and warranty of each of SPV and VMS set forth in the
Origination Trust Agreement and in each other Transaction Document to which it
is a party is true and correct as of the date of this First Amendment as though
such representation or warranty were being made on and as of the date hereof and
is hereby deemed repeated as though fully set forth herein.
Section 5.2 Due Authorization
The execution, delivery and performance by each of SPV and VMS of this
First Amendment (a) is within SPV's or VMS's power, as applicable, has been duly
authorized by all necessary action and (b) does not contravene, or constitute a
default under, any requirement of law or any provision of applicable law, its
certificate of formation or the limited liability company agreement of each of
SPV or VMS or of any law or governmental regulation, rule, contract, agreement,
judgment, injunction, order, decree or other instrument binding upon each of SPV
and VMS and or any of its properties. This First Amendment has been executed and
delivered by a duly authorized officer or manager of each of SPV and VMS.
-2-
Section 5.3 Binding Effect
This First Amendment is a legal, valid and binding obligation of each of
SPV and VMS and enforceable against each of SPV and VMS in accordance with its
terms (except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally or by general equitable principles,
whether considered in a proceeding at law or in equity and by an implied
covenant of good faith and fair dealing).
Section 5.4 No Consent
No consent, action by or in respect of, approval or other authorization of,
or registration, declaration or filing with, any Governmental Authority or other
Person is required for the valid execution and delivery of this First Amendment
or for the performance of any of SPV's or VMS's obligations hereunder other than
such consents, approvals, authorizations, registrations, declarations or filings
as were obtained by SPV or VMS prior to the date hereof.
SECTION 6. CONDITIONS PRECEDENT
This First Amendment shall become effective as of the date above first
written and shall be binding on each of the parties hereto upon (i) the
execution of this First Amendment, (ii) the effectiveness of the Guaranty, dated
as of June 18, 2003, between the Trust, as Guarantor and JPMorgan Bank, as
Indenture Trustee and (iii) the delivery of an Opinion of Counsel pursuant to
Section 9.1 of the Origination Trust Agreement, Section 14.1(e) of the Sold SUBI
Supplement 1999-1A and Section 14.1(e) of the Sold SUBI Supplement 1999-1B.
SECTION 7. MISCELLANEOUS
Section 7.1 Duplicate Originals
The parties may sign any number of copies of this First Amendment. One
signed copy is enough to prove this First Amendment.
Section 7.2 Ratification and Effect
The Origination Trust Agreement, as amended and supplemented by this First
Amendment, is in all respects ratified and confirmed, shall continue to be in
full force and effect, and shall be read, taken and construed as one and the
same instrument.
Section 7.3 GOVERNING LAW
THIS FIRST AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF DELAWARE.
Section 7.4 Headings
-3-
The various headings in this First Amendment are for purposes of reference
only and shall not affect the meaning or interpretation of any provision of this
First Amendment.
Section 7.5 Counterparts
This First Amendment may be executed in two or more counterparts, and by
different parties on separate counterparts, each of which shall be an original,
but all of which together shall constitute one and the same instrument.
Section 7.6 Severability of Provisions
If any one or more of the covenants, agreement, provisions or terms of this
First Amendment shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions or terms shall be deemed enforceable to the
fullest extent permitted, and if not so permitted, shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this First
Amendment and shall in no way affect the validity or enforceability of the other
provisions of this First Amendment.
-4-
IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized
officer or manager to execute and deliver this First Amendment as of the date
first above written.
RAVEN FUNDING LLC, as Initial Beneficiary
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Title: Manager
PHH VEHICLE MANAGEMENT SERVICES,
LLC, as UTI Trustee
By: /s/ Xxxx X. Xxxxxx
------------------------------------------------
Title: Executive Vice President and
Chief Operating Officer
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Delaware Trustee
By: /s/ Xxxxxxxx X. Xxxx
-----------------------------------------------
Title: Financial Services Officer
The foregoing First Amendment is hereby approved:
JPMORGAN CHASE BANK, as Indenture Trustee
By: /s/ Xxxxxx Xxx
-------------------------------------------
Title: Trust Officer
CHESAPEAKE FUNDING LLC, as Issuer
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Title: Manager
