Exhibit 10.10
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of June 30, 1999 (this
"Agreement"), is by and among GREYHOUND FUNDING LLC, a Delaware limited
liability company (the "Issuer"), RAVEN FUNDING LLC, a Delaware limited
liability company ("SPV"), PHH VEHICLE MANAGEMENT SERVICES, LLC, a Delaware
limited liability company, as administrator (the "Administrator"), and THE
CHASE MANHATTAN BANK, an New York banking corporation, not in its individual
capacity but solely as Indenture Trustee (the "Indenture Trustee" under the
Base Indenture (as defined herein)).
WHEREAS, each of the Issuer and SPV has entered into the
Transaction Documents to which it is a party.
WHEREAS, each of the Issuer and SPV desires to have the
Administrator perform certain of its duties under the Transaction Documents
and to provide such additional services consistent with the terms of this
Agreement and the Transaction Documents as the Issuer or SPV, as the case may
be, may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and
SPV on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. Definitions and Usage. Unless specified herein, capitalized
terms used herein (including the preamble and recitals hereto) shall have the
meaning assigned to such terms in the Definitions List attached as Schedule 1
to the Base Indenture, dated as of June 30, 1999 (the "Base Indenture"),
between the Issuer, and the Indenture Trustee.
2. Duties of the Administrator. (a) Certain Duties with Respect
to the Indenture. The Administrator agrees to perform all its duties as
Administrator under the Base Indenture and each Indenture Supplement. In
addition, the Administrator agrees to perform the following duties on behalf
of the Issuer under the Base Indenture:
(A) to cause the Note Register to be kept and to give the
Indenture Trustee notice of any appointment of a new Note Registrar and
the location, or change in location, of the Transfer Agent and Registrar
and the office or offices where Notes may be surrendered for
registration of transfer or exchange (Section 2.4 of the Base
Indenture);
(B) to prepare and deliver to the Indenture Trustee an Issuer
Request with respect to funds remaining unclaimed for two years after
the related payment was due under the circumstances described in Section
2.6(c) (Section 2.6(c) of the Base Indenture);
(C) to furnish to the Indenture Trustee at least seven Business
Days before each Payment Date and at such other time as the Indenture
Trustee may request in writing, a list of the names and addresses of
Investor Noteholders of each Series of Investor Notes (Section 2.8 of
the Base Indenture);
(D) to prepare Definitive Notes and arrange the delivery thereof
(Section 2.11 of the Base Indenture);
(E) to prepare, obtain or file the instruments, opinions and
certificates and other documents required for the release of collateral
(Section 3.2(b) of the Base Indenture);
(F) to deliver to the Indenture Trustee copies of each of the
reports, statements, certificates and other materials delivered to the
Issuer by the Servicer and referred to in Section 4.1(a) (Section 4.1(a)
of the Base Indenture);
(G) to deliver to the Indenture Trustee, in accordance with
Section 4.1(a)(vi) of the Base Indenture, a copy of the additional
information regarding the financial position, results of operations or
business of the Origination Trust or VMS delivered to the Issuer
pursuant to the Origination Trust Documents (Section 4.1(a)(vi) of the
Base Indenture);
(H) to prepare and deliver to the Indenture Trustee or the Paying
Agent written instructions to make withdrawals and payments from the
Collection Account and any Series Accounts specified in the Base
Indenture or in an Indenture Supplement (Sections 4.1(b) and 5.4(b) of
the Base Indenture);
(I) to deliver to any Investor Noteholder and any prospective
purchaser of Investor Notes the information required by Rule 144A(d)(4)
of the Securities Act (Section 4.3 of the Base Indenture);
(J) to deliver to the Indenture Trustee or the Paying Agent and
the Rating Agencies the Monthly Settlement Statement with respect to
each Series of Investor Notes (Section 4.4 of the Base Indenture);
(K) to deliver to the Indenture Trustee or the Paying Agent a copy
of the annual financial statements of the Issuer (Section 4.4(b) of the
Base Indenture);
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(L) to prepare and deliver to the Indenture Trustee and the Paying
Agent the Annual Noteholders' Tax Statement required to be delivered to
Investor Noteholders (Section 4.4(c) of the Base Indenture);
(M) to prepare and deliver to the Indenture Trustee written
instructions with respect to the investment of funds on deposit in the
Collection Account and the liquidation of such investments as required
or permitted (Section 5.1(c) of the Base Indenture);
(N) to prepare and deliver to the Indenture Trustee written
instructions with respect to the investment of funds on deposit in the
Gain On Sale Account and the liquidation of such investments as required
or permitted (Section 5.2(b) of the Base Indenture);
(O) to prepare and deliver to the Indenture Trustee written
instructions to withdraw amounts from the Gain On Sale Account (Section
5.2(e) of the Base Indenture);
(P) to maintain an office or agency in the City of New York for
registration of transfer or exchange of Investor Notes (Section 8.2);
(Q) to obtain and preserve the Issuer's qualification to do
business in each jurisdiction in which the failure to so qualify would
have a material adverse effect on the business and operations of the
Issuer or which qualification shall be necessary to protect the validity
and enforceability of the Indenture, the Investor Notes and any
instrument or agreement included in the Issuer Assets (Section 8.4 of
the Base Indenture);
(R) to deliver notice to the Indenture Trustee and the Rating
Agencies of any default under any of the Transaction Documents (Section
8.7(b) of the Base Indenture);
(S) to prepare (for execution by the Issuer) and file all such
supplements and amendments to the Base Indenture and all such UCC
financing statements and continuation statements required to be filed by
the terms of the Indenture and the Transfer Agreement (Sections 8.7(c)
and 8.11 of the Base Indenture);
(T) to deliver notice to the Indenture Trustee and the Rating
Agencies of any Potential Amortization Event, Amortization Event,
Potential Termination Event, Termination Event, Event of Default or
Default under any of the Transaction Documents (Section 8.8 of the Base
Indenture);
(U) to deliver notice to the Indenture Trustee and each Rating
Agency of the commencement or existence of any proceeding by or before
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any Governmental Authority against or affecting the Issuer which is
reasonably likely to have a material adverse effect on the business,
condition (financial or otherwise), results of operations, properties or
performance of the Issuer or the ability of the Issuer to perform its
obligations under the Indenture or the other Transaction Documents to
which it is a party (Section 8.9 of the Base Indenture);
(V) to deliver to the Indenture Trustee and each Rating Agency,
such information as the Indenture Trustee or such Rating Agency may
reasonably request in connection with the transactions contemplated by
the Indenture (Section 8.10 of the Base Indenture);
(W) to obtain annual Opinions of Counsel in accordance with
Section 8.12 of the Indenture (Section 8.12 of the Base Indenture);
(X) to prepare and deliver notice to Investor Noteholders of the
removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 10.8 of the Base Indenture);
(Y) to monitor the Issuer's obligations as to the satisfaction and
discharge of the Indenture and the preparation of an Officers'
Certificate and the obtaining of the Opinion of Counsel and the
Independent Certificate relating thereto (Section 11.1 of the Base
Indenture);
(Z) to obtain Opinions of Counsel with respect to the execution of
supplemental indentures and the mailing to the Investor Noteholders of
notices with respect to such supplemental indentures (Sections 12.1 and
12.2 of the Base Indenture);
(AA) to prepare all Officers' Certificates, Opinions of Counsel
and Independent Certificates with respect to any requests by the Issuer
to the Indenture Trustee to take any action under the Indenture (Section
13.1(a) of the Base Indenture);
(BB) to prepare and deliver Officers' Certificates and obtain
Independent Certificates, if necessary, for the release of property from
the lien of the Indenture (Section 13.1(b) of the Base Indenture); and
(CC) to record the Indenture, if applicable (Section 13.15 of the
Base Indenture).
(b) Certain Duties of the Issuer with Respect to the Transfer
Agreement. The Administrator agrees to perform the following duties on
behalf of the Issuer under the Transfer Agreement:
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(A) to pay to SPV on each Additional Closing Date from amounts
available under the Indenture the Transferred Asset Payment for such
Additional Closing Date (Section 2.3 of the Transfer Agreement); and
(B) to do and perform, from time to time, any and all acts and to
prepare for execution by the Issuer of any and all further instruments
required or reasonably requested by SPV more fully to effect the
purposes of the Transfer Agreement, including the preparation of any
financing statements or continuation statements relating to any
Transferred Assets purchased thereunder for filing under the provisions
of the UCC of any applicable jurisdiction (Section 8.10 of the Transfer
Agreement).
(c) Certain Duties of SPV with Respect to the Transfer Agreement.
The Administrator agrees to perform the following duties on behalf of SPV
under the Transfer Agreement:
(A) to prepare (for execution by SPV) and deliver to the Issuer
the Initial Assignment (Section 2.2(a) of the Base Indenture);
(B) to prepare (for execution by SPV) and deliver to the Issuer
Additional Assignments (Section 2.2(b) of the Base Indenture);
(C) to obtain and preserve SPV's qualification to do business in
each jurisdiction in which the failure to so qualify would have a
material adverse effect on the business and operations of SPV or which
qualification shall be necessary to protect the validity and
enforceability of the Transfer Agreement and any instrument or agreement
included in the Transferred Assets (Section 6.1 of the Transfer
Agreement);
(D) to prepare (for execution by SPV) and file all such UCC
financing statements and continuation statements required to be filed by
the terms of the Transfer Agreement (Sections 6.4(c), 7.1, 7.3 and 8.10
of the Transfer Agreement);
(E) to deliver notice to the Issuer, the Indenture Trustee and the
Rating Agencies of any Potential Termination Event (Section 6.5 of the
Transfer Agreement);
(F) to deliver notice to the Issuer, the Indenture Trustee and
each Rating Agency of the commencement or existence of any proceeding by
or before any Governmental Authority against or affecting SPV which is
reasonably likely to have a material adverse effect on the business,
condition (financial or otherwise), results of operations, properties or
performance of SPV or the ability of SPV to perform its obligations
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under the Transfer Agreement or the other Transaction Documents to which
it is a party (Section 6.6 of the Transfer Agreement);
(G) to deliver to the Issuer, the Indenture Trustee and each
Rating Agency, such information as the Issuer, the Indenture Trustee or
such Rating Agency may reasonably request in connection with the
transactions contemplated by the Transfer Agreement (Section 6.7 of the
Transfer Agreement); and
(H) to xxxx SPV's computer files, if any, to reflect the transfer
of the Transferred Assets to the Issuer (Section 7.2 of the Transfer
Agreement).
3. Indemnification of Indenture Trustee. The Administrator hereby
agrees to pay to the Indenture Trustee $500 per month pursuant to the Fee
Schedule between the Indenture Trustee and the Administrator. The Indenture
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Administrator agrees to reimburse the
Indenture Trustee for all reasonable out-of-pocket expenses incurred or made
by the Indenture Trustee, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture
Trustee's agents, counsel, accountants and experts. The Administrator hereby
agrees to indemnify the Indenture Trustee against any and all loss, liability
or expense (including the reasonable fees of counsel) incurred by it in
connection with the administration of the trust under the Indenture and the
performance of its duties thereunder.
The Administrator's payment obligations to the Indenture Trustee
pursuant to this Section 3 shall survive the resignation or termination of
the Indenture Trustee and the discharge of the Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in
Section 8.1(f) of the Base Indenture with respect to the Issuer, the expenses
are intended to constitute expenses of administration under the Bankruptcy
Code or any other applicable federal or state bankruptcy, insolvency or
similar law.
4. Additional Duties; Additional Information. Subject to Section
9 of this Agreement, and in accordance with the directions of the Issuer or
SPV, the Administrator shall administer, perform or supervise the performance
of such other activities in connection with the Issuer Assets and the
Transaction Documents as are not covered by any of the foregoing provisions
and as are expressly requested by the Issuer or SPV, as the case may be, and
are reasonably within the capability of the Administrator. The Administrator
shall furnish to the Issuer or SPV from time to time such additional
information regarding the Issuer Assets and the Transaction Documents as such
party shall reasonably request.
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5. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer or SPV
at any time during normal business hours.
6. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement on behalf of the Issuer and,
as reimbursement for its expenses related thereto, the Administrator shall be
entitled to receive a fee for each Monthly Period in an amount equal to 0.01%
per annum of the Required Asset Amount with respect to each Series of
Investor Notes Outstanding on the last day of the immediately preceding
Monthly Period (calculated for the actual number of days elapsed during such
period over a 360-day year), payable by the Holders of the Investor Notes of
each Series in accordance with the related Indenture Supplement on each
Payment Date. As compensation for the performance of the Administrator's
obligations under this Agreement on behalf of SPV and, as reimbursement for
its expenses related thereto, the Administrator shall be entitled to receive
a fee for each Monthly Period in an amount equal to $1,000, payable by SPV on
each Payment Date only to the extent of any distributions received by SPV on
account of its Common Membership Interest on such Payment Date.
7. Use of Subcontractors. The Administrator may contract with
other Persons to assist it in performing its duties under this Agreement, and
any performance of such duties by a Person identified to the Indenture
Trustee in an Officer's Certificate of the Administrator shall be deemed to
be action taken by the Administrator. Any such contract shall not relieve the
Administrator of its liability and responsibility with respect to the duties
to which such contract relates.
8. Transactions with Affiliates. In carrying out the foregoing
duties or any of its other obligations under this Agreement, the
Administrator may enter into transactions or otherwise deal with any of its
Affiliates; provided, however, that the terms of any such transactions or
dealings shall be in accordance with any directions received from the Issuer
and the Indenture Trustee and shall be, in the Administrator's opinion, no
less favorable to the parties hereto than would be available from
unaffiliated parties.
9. Indemnification. The Administrator shall indemnify and hold
harmless the Issuer, the Indenture Trustee, the SPV and their respective
directors, officers, agents and employees (collectively, the "Indemnified
Parties") from and against any loss, liability, expense, damage or injury
suffered or sustained by reason of any acts, omissions or alleged acts or
omissions arising out of the activities of the Administrator pursuant to this
Agreement, including but not limited to any judgment, award, settlement,
reasonable attorneys' fees and other costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim;
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provided, however, that the Administrator shall not indemnify any Indemnified
Party if such acts, omissions or alleged acts or omissions constitute bad
faith, negligence or willful misconduct by such Indemnified Party. The
indemnity provided herein shall survive the termination of this Agreement and
the removal of the Administrator.
10. Independence of the Administrator. Unless otherwise provided
in the Transaction Documents, the Administrator shall be an independent
contractor and shall not be subject to the supervision of the Issuer or SPV
with respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Indenture Trustee,
the Administrator shall have no authority to act for or represent the
Indenture Trustee in any way and shall not otherwise be deemed an agent of
the Indenture Trustee.
11. No Joint Venture. Nothing contained in this Agreement (i)
shall constitute the Administrator and any of the Issuer or SPV as members of
any partnership, joint venture, association, syndicate, unincorporated
business or other separate entity, (ii) shall be construed to impose any
liability as such on any of them or (iii) shall be deemed to confer on any of
them any express, implied or apparent authority to incur any obligation or
liability on behalf of the others.
12. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an admin-
istrator for any other person or entity even though such person or entity may
engage in business activities similar to those of the parties hereto.
13. Term of Agreement; No Resignation.
(a) This Agreement shall continue in force until the termination
of the Indenture and the LLC Agreement in accordance with their respective
terms and the payment in full of all obligations owing thereunder, upon which
event this Agreement shall automatically terminate.
(b) The Administrator shall not resign from the obligations and
duties imposed hereunder.
14. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed of follows:
(a) if to the Issuer, to:
Greyhound Funding LLC
c/o Global Securitization Services, LLC
00 Xxxx 00xx Xxxxxx, Xxxxx 000
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Xxx Xxxx, XX 00000
Attention: President
Telecopier No.: (000) 000-0000
(b) if to SPV, to:
Raven Funding LLC
c/o Global Securitization Services, LLC
00 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: President
Telecopier No.: (000) 000-0000
(c) if to the Administrator, to:
PHH Vehicle Management Services, LLC
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Telecopier: (516) 222- 3751
Attention: General Counsel
(d) If to the Indenture Trustee, to:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Markets Fiduciary Services, VMS Auto
Lease Backed Securitization
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid,
delivered by overnight courier or hand-delivered to the address of such party
as provided above.
15. Amendments. This Agreement may be amended from time to time
by a written amendment duly executed and delivered by the Issuer, SPV and the
Administrator with any consents required pursuant to Section 12.2 of the Base
Indenture
16. Successors and Assigns. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in
writing by the Issuer, SPV and the Indenture Trustee and subject to the
satisfaction of the Rating Agency Condition with respect to each Series of
Outstanding Notes and each series of Preferred Membership Interests. An
assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the Each of the parties hereto acknowledges that the Issuer has
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pledged all of its rights under this Agreement to the Indenture Trustee on
behalf of the Investor Noteholders pursuant to the Indenture and (ii) SPV has
pledged all of its rights under this Agreement to the Issuer pursuant to the
Transfer Agreement.
17. Governing Law. This agreement and the rights and obligations
of the parties hereunder shall be governed by, and construed and interpreted
in accordance with, the laws of the State of New York.
18. Heading. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
19. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall be an original, but all of which
together shall constitute but one and the same agreement.
20. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
21. Nonpetition Covenants. The Administrator hereby covenants and
agrees that, prior to the date which is one year and one day after the
payment in full of all of the Investor Notes and the redemption of all series
of Preferred Membership Interests, it will not institute against, or join any
other Person in instituting against, any of the Issuer or SPV any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or any state of the
United States. The provisions of this Section 21 shall survive the
termination of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
GREYHOUND FUNDING LLC
By: /s/ Xxxxx X. Xxxxx
______________________________________
Name: Xxxxx X. Xxxxx
Title: Manager
RAVEN FUNDING LLC
By: /s/ Xxxxx Xxxxxxx
______________________________________
Name: Xxxxx Xxxxxxx
Title: Manager
PHH VEHICLE MANAGEMENT SERVICES, LLC
By: /s/ Xxxxxx Xxxxxxx
______________________________________
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By: /s/ Xxxxxxxx Xxxx
______________________________________
Name: Xxxxxxxx Xxxx
Title: Vice President
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