Exhibit 3.4
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
RAVEN FUNDING LLC
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this
"Agreement") of Raven Funding LLC (the "Company"), dated as of the 28th day
of October, 1999, is entered into by PHH Vehicle Management Services LLC, a
limited liability company organized under the laws of the State of Delaware,
as the sole economic member (the "Sole Member" or the "Member" and, together
with any other member admitted to the Company pursuant to the terms of this
Agreement, the "Members"). Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx join in the
execution of this Agreement and agree to be bound by its terms.
W I T N E S S E T H :
WHEREAS, the Company was formed on June 24, 1999, pursuant to the
Delaware Limited Liability Company Act (6 Del. C. Section 18-101 et seq.), as
amended from time to time (the "Act");
WHEREAS, the Member and the original managers of the Company
entered into a Limited Liability Company Agreement of the Company, dated as
of June 30, 1999 (the "Original Agreement"), and the Member and the Managers
(as hereinafter defined) hereby amend and restate the Original Agreement; and
WHEREAS, the Member desires to participate in such a limited
liability company for the purpose of engaging in any act or activity for
which limited liability companies may be organized under the Act, in
accordance with the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto do hereby mutually covenant
and agree as follows:
1. Name. The name of the limited liability company is "Raven
Funding LLC". All business of the Company shall be conducted under such
name.
2. Single Purpose. The Company is organized solely for, and
shall limit its activities to, the following purposes:
(a) entering into and performing its obligations under an Asset Sale
Agreement (and amendments and/or restatements thereto) (the "Asset Sale
Agreement"), between the Company, PHH Personal Lease Corporation and PHH
Vehicle Management Services LLC, a Delaware limited liability company
("VMS"), pursuant to which the Company will acquire certain Leases and
Vehicles and existing beneficial interests in Leases and Vehicles;
(b) entering into and performing its obligations under a Receivables
Purchase Agreement (and amendments and/or restatements thereto) (the
"Receivables Purchase Agreement"), between the Company and VMS pursuant to
which the Company will acquire certain Fleet Receivables;
(c) entering into and performing its obligations under an Amended and
Restated Origination Trust Agreement (and amendments and/or restatements
thereto) (the "Origination Trust Agreement") among the Company, as settlor
and initial beneficiary, VMS, as UTI Trustee (the "UTI Trustee"), and
Wilmington Trust Company, as the Delaware Trustee, pursuant to which the X.X.
Xxxxxxxx Trust is established as a Delaware business trust;
(d) entering into and performing its obligations under a Contribution
Agreement (and amendments and/or restatements thereto) (the "Contribution
Agreement"), between the Company and the X.X. Xxxxxxxx Trust (the
"Origination Trust") pursuant to which the Company will contribute, assign
and transfer the Fleet Receivables, Leases and Vehicles acquired by the
Company pursuant to the Asset Sale Agreement and the Receivables Purchase
Agreement to the Origination Trust;
(e) entering into and performing its obligations under a Servicing
Agreement and supplements thereto (and amendments and/or restatements
thereto) (collectively the "Servicing Agreement"), as amended and
supplemented from time to time, among the Company, the Origination Trust, VMS
and, with respect to the supplements, Wilmington Trust Company, as SUBI
Trustee;
(f) from time to time acquiring and contributing Vehicles to the
Origination Trust in accordance with the Origination Trust Agreement;
(g) acquiring, owning, transferring, conveying, leasing, disposing of,
pledging, assigning, borrowing money against or otherwise financing the
undivided beneficial interest in the Origination Trust (the "UTI");
(h) from time to time entering into and performing its obligations
under supplements to the Origination Trust Agreement pursuant to which the
UTI Trustee is directed by the Company to identify and allocate one or more
separate portfolios of assets held by the Origination Trust (each a "SUBI")
and acquiring, owning, transferring, conveying, leasing, disposing of,
pledging, assigning, borrowing money against or otherwise financing SUBIs;
(i) entering into and performing its obligations under a Limited
Liability Company Agreement (and amendments and/or restatements thereto) and
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thereby establishing Greyhound Funding LLC, a Delaware limited liability
company (the "Issuer") and owning the common limited liability company
interests in the Issuer;
(j) entering into and performing its obligations under a Transfer
Agreement (and amendments and/or restatements thereto) (the "Transfer
Agreement"), as amended and supplemented from time to time, between the
Company and the Issuer pursuant to which the Company will contribute two
SUBIs to the Issuer and one or more Hedging Instruments and agreeing to
transfer to the Issuer beneficial interests in the Origination Trust assets
subsequently allocated to those SUBIs;
(k) entering into and performing its obligations under a Management
Agreement (and amendments and/or restatements thereto) (the "Management
Agreement"), between the Company and Global Securitization Services, LLC;
(l) entering into and performing its obligations under an Additional
Equipment Assets Sale Agreement (and amendments and/or restatements thereto)
(the "Additional Equipment Assets Sale Agreement"), between the Company and
VMS, pursuant to which the Company will acquire certain Additional Equipment
Assets;
(m) entering into and performing its obligations under a Additional
Equipment Assets Contribution Agreement (and amendments and/or restatements
thereto) (the "Additional Equipment Assets Contribution Agreement"), between
the Company and the X.X. Xxxxxxxx Trust (the "Origination Trust") pursuant to
which the Company will contribute, assign and transfer the Additional
Equipment Assets acquired by the Company pursuant to the Additional Equipment
Assets Sale Agreement to the Origination Trust;
(n) entering into and performing its obligations under a Limited
Liability Company Agreement (and amendments and/or restatements thereto) and
thereby establishing Xxxx Valley LLC, a Delaware limited liability company
(the "PMI Issuer") and owning the common limited liability company interests
in the PMI Issuer;
(o) entering into the other Transaction Documents (as defined in the
Definition List attached as Schedule 1 to Base Indenture, dated as of the
date hereof, between the Issuer and The Chase Manhattan Bank, as Indenture
Trustee (the "Original Base Indenture")), as amended and supplemented from
time to time, and the transactions contemplated thereby; and
(p) entering into the other Newco Transaction Documents (as defined in
the Definition List attached as Schedule 1 to Base Indenture, dated as of the
date hereof, between the PMI Issuer and The Chase Manhattan Bank, as
Indenture Trustee), as amended and supplemented from time to time, and the
transactions contemplated thereby.
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The Company may also enter into and perform all transactions and
documents related to the purposes listed in this Section 2, and any purposes
and activities necessary, convenient or incidental to the conduct, promotion
or attainment of such purposes that are permitted to limited liability
companies under the laws of the State of Delaware. The Members shall not
have the right to change the character of the business of the Company from
that set forth in this Section 2 or to engage in any activity other than as
described herein.
The Company, by or through the Member or any Manager (as defined below)
on behalf of the Company, may enter into and perform the Asset Sale
Agreement, the Receivables Purchase Agreement, the Origination Trust
Agreement and supplements thereto, the Contribution Agreement, the Servicing
Agreement (and amendments and supplements thereto), the Limited Liability
Company Agreement of the Issuer (and amendments and/or restatements thereto),
the Transfer Agreement (and amendments and supplements thereto), the
Management Agreement, the Additional Equipment Assets Sale Agreement, the
Additional Equipment Assets Contribution Agreement, the Limited Liability
Company Agreement of Xxxx Valley LLC, the other Transaction Documents and all
documents, agreements, certificates, or financing statements contemplated
thereby or related thereto, all without any further act, vote or approval of
the Member, any Manager (as defined below) or any other person or entity
notwithstanding any other provision of this Agreement, the Act or applicable
law, rule or regulation. The foregoing authorization shall not be deemed a
restriction on the powers of the Member or any Manager (as defined below) to
enter into other agreements on behalf of the Company.
Xxxxxx Xxxxxx is hereby designated as an "authorized person" within the
meaning of the Act and has executed, delivered and filed the Certificate of
Formation of the Company with the Secretary of State of the State of
Delaware. Upon the filing of the Certificate of Formation with the Secretary
of State of the State of Delaware, his powers as an "authorized person"
ceased, and the Member thereupon became the designated "authorized person"
and shall continue as the designated "authorized person" within the meaning
of the Act. The Member or any Manager shall execute, deliver and file any
other certificates (and any amendments and/or restatements thereof) necessary
for the Company to qualify to do business in any jurisdiction in which the
Company may wish to conduct business.
3. Maintenance of Separate Existence. The Company will do
all things necessary to continue to be readily distinguishable from Avis Rent
A Car, Inc. ("ARAC") or any affiliate of ARAC including VMS (collectively,
the "ARAC Group") and maintain its existence separate and apart from that of
the ARAC Group including, without limitation:
(a) maintaining books and records separate from any other natural
person, corporation, business trust, joint venture, association, company,
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partnership, joint stock company, limited liability company, trust,
unincorporated organization, or governmental authority (each, a "Person") at
its principal office which show a true and accurate record in United States
dollars of all business transactions arising out of and in connection with
the conduct of the Company and the operation of its business in sufficient
detail to allow preparation of tax returns;
(b) not commingling funds and other assets of the Company with those of
any other Person, including Members or any member of the ARAC Group;
(c) maintaining cash management systems separate from those of any
other Person, including Members or any member of the ARAC Group;
(d) practicing and adhering to organizational formalities and
procedures required by the Act, its Certificate of Formation dated June 23,
1999, as amended from time to time (the "Certificate of Formation") or this
Agreement, as amended from time to time, such as maintaining appropriate
books and records, including, without limitation, maintaining and
periodically preparing, separate financial statements;
(e) acting solely in its name and through its duly authorized officers
or agents in the conduct of its businesses;
(f) owning or leasing (including through shared arrangements with
members of the ARAC Group) all office furniture and equipment necessary to
operate its business;
(g) maintaining at least two Managers (as defined below) who are
Independent Managers (as defined below);
(h) not (1) having or incurring any indebtedness to any member of the
ARAC Group; (2) guaranteeing or otherwise becoming liable for any
obligations of any member of the ARAC Group; (3) having obligations
guaranteed by any member of the ARAC Group; (4) holding itself out as
responsible for debts of any member of the ARAC Group or for decisions or
actions with respect to the affairs of any member of the ARAC Group; (5)
operating or purporting to operate as an integrated, single economic unit
with respect to the ARAC Group; (6) seeking to obtain credit or incur any
obligation to any third party based upon the assets of any member of the ARAC
Group; (7) induce any such third party to reasonably rely on the
creditworthiness of any member of the ARAC Group or any other unaffiliated
entity, including by suggesting in any way, within its financial statements,
that its assets are available to pay the claims of creditors of the ARAC
Group or any other affiliated or unaffiliated entity; and (8) being directly
or indirectly named as a direct or contingent beneficiary or loss payee on
any insurance policy of any member of the ARAC Group other than as required
by the Transaction Documents;
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(i) maintaining its deposits and other bank accounts and all of its
assets separate from those of any other Person;
(j) compensating all its employees, officers, consultants and agents,
if any, for services provided to it by such Persons out of its own funds or
reimbursing any of its affiliates in respect of amounts paid by such
affiliates for such services;
(k) maintaining office space separate and apart from that of the ARAC
Group (even if such office space is subleased from or is near premises
occupied by the ARAC Group) and a telephone number separate and apart from
that of the ARAC Group;
(l) conducting all oral and written communications, including, without
limitation, letters, invoices, purchase orders, contracts, statements, and
applications (whether written or oral) solely in its own name so as not to
mislead others as to the identity of each member of the ARAC Group or the
Issuer;
(m) having separate stationery, invoices, and checks from the ARAC
Group or any other unaffiliated entity;
(n) accounting for and managing all of its liabilities separately from
those of the ARAC Group;
(o) allocating, on an arm's length basis, all shared limited liability
company operating services, leases and expenses, including, without
limitation, those associated with the services of shared consultants and
agents and shared computer and other office equipment and software; and
otherwise maintaining an arm's-length relationship with each member of the
ARAC Group or any other unaffiliated entity;
(p) not pledging its assets for the benefit of any other Person, other
than pursuant to the Transaction Documents;
(q) not engaging in any merger, consolidation or combination
transaction with any Person;
(r) not incurring any indebtedness;
(s) remaining solvent; and
(t) maintaining adequate capital for the normal obligations reasonably
foreseeable in a business of its size and character and in light of its
contemplated business operations.
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Failure of the Company to comply with any of the foregoing
covenants or any other covenant in this Agreement shall not affect the status
of the Company as a separate legal entity or the limited liability of the
Members and Managers.
4. Management
4.1 Management by Managers. The powers of the Company shall be
exercised by or under the authority of, and the business and affairs of the
Company shall be managed under the direction of certain managers (the
"Managers").
4.2 Delegation of Authority and Duties to Chairman of the
Managers. Except (x) for situations in which the approval of the Members is
expressly required by this Agreement or by nonwaivable provisions of
applicable law or (y) for decisions which, pursuant to the terms of this
Agreement, must be approved by a majority or other specified vote of the
Managers, (i) the powers of the Company shall be, and hereby are, delegated
to and exercised by or under the authority of, and the business and affairs
of the Company shall be managed under the direction of, the Sole Member as
the chairman of the managers (the "Chairman of the Managers") or by vote of
the Managers as the Chairman of the Managers may determine in its sole
discretion, and (ii) the Chairman of the Managers may make all decisions and
take all actions for the Company not otherwise provided in this Agreement.
4.3 Number and Qualifications. The number of Managers of the
Company shall not be less than five nor more than seven, as may be determined
by the Sole Member from time to time, but no decrease in the number of
Managers shall have the effect of shortening the term of any incumbent
Manager. Managers need not be Members or residents of the State of Delaware.
Each Manager is a "manager" of the Company within the meaning of the Act.
Each person appointed as Manager shall execute a Manager Agreement in the
form attached hereto as Exhibit B. The present Managers are F. Xxxxxx
Xxxxxxx, Xxxxx X. Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx X. Xxxxxx and Xxxxxxx X.
Xxxxxx.
4.4 Independent Manager.
(a) The Company shall have at all times two individuals each of which
is, with respect to the Company, an individual who is not and never was (i) a
stockholder, member, partner, director, officer, employee, affiliate,
associate, creditor or independent contractor of the ARAC Group or any of
their respective affiliates or associates or (ii) any person owning directly
or beneficially more than 5% of any outstanding shares of common stock of the
ARAC Group or any of their respective affiliates, or a stockholder, director,
officer, employee, affiliate, associate, creditor or independent contractor
of such beneficial owner or any of such beneficial owner's affiliates or
associates, or (iii) a member of the immediate family of any person described
above (each such Person, an "Independent Manager"). If any Independent
Manager resigns, dies or becomes incapacitated, or such position is otherwise
vacant, no action requiring the unanimous affirmative vote of the Managers
shall be taken until a successor Independent Manager is elected and qualified
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and approves such action. Any successor Independent Manager shall execute a
counterpart to this Agreement.
(b) Notwithstanding any other provision of this Agreement and any
provision of law that otherwise so empowers the Company, the Company, and the
Member, the Managers or any other Person or entity on behalf of the Company,
shall not without the prior unanimous consent of the Managers, including each
of the Independent Managers, do any of the following:
(i) engage in any business or activity other than those set forth
in Section 2 hereof;
(ii) incur any indebtedness or assume or guaranty any indebtedness
of any other entity other than pursuant to the Transaction Documents;
(iii) create, incur or suffer to exist, or agree to create,
incur or suffer to exist, or consent to cause or permit in the future
the creation, incurrence or existence of any lien of any kind on the
assets of the Company other than Permitted Liens (as defined below);
(iv) to the fullest extent permitted by law, dissolve or liquidate,
in whole or in part;
(v) consolidate or merge with or into any other entity or convey,
sell or transfer substantially all of its properties and assets
substantially as an entirety to any entity;
(vi) institute proceedings to be adjudicated bankrupt or insolvent,
or consent to the institution of a bankruptcy or insolvency proceeding
or case against it, or file a petition seeking, or consent to,
reorganization or relief under any applicable federal or state law
relating to bankruptcy, or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official)
of the Company or a substantial part of its property, or make any
assignment for the benefit of creditors, or admit in writing its
inability to pay its debts generally as they become due; or
(vii) amend this Agreement or take action in furtherance of any
such action.
With regard to any action contemplated by the preceding sentence, to the
fullest extent permitted by law, the Independent Managers will owe their
primary fiduciary duty to the Company (including the creditors of the
Company). The Members shall be deemed to have consented to the foregoing by
virtue of the Members' purchase of their interests in the Company, including,
without limitation, rights to distributions (liquidating or otherwise),
allocations, information, and to vote, consent or approve, if any, as set
forth in this Agreement (the "Membership Interests"), no further act or deed
of the Members being required to evidence such consent.
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"Permitted Liens" shall mean the following encumbrances: (a) liens for
taxes or assessments or other governmental charges not yet due and payable;
(b) pledges or deposits securing obligations under workmen's compensation,
unemployment insurance, social security or public liability laws or similar
legislation; (c) pledges or deposits securing bids, tenders, contracts (other
than contacts for the payment of money) or leases to which the Company is a
party as lessee made in the ordinary course of business; (d) deposits
securing statutory obligations of the Company; (e) inchoate and unperfected
workers', mechanics', suppliers' or similar liens arising in the ordinary
course of business; (f) carriers', warehousemen's or other similar possessory
liens arising in the ordinary course of business; (g) deposits securing, or
in lieu of, surety, appeal or customers bonds in proceedings to which the
Company is a party; and (h) liens expressly permitted by the Transaction
Documents.
4.5 Term. Each Manager shall hold office until his successor
shall be elected and qualified, or until his earlier death, resignation or
removal as provided in this Agreement.
4.6 Vacancy. Any Manager position to be filled by reason of an
increase in the number of Managers may be filled by the Sole Member. Any
vacancy occurring in the Managers other than by reason of an increase in the
number of Managers may be filled (i) by the Sole Member or (ii) by the
affirmative vote of a majority of the remaining Managers though less than a
quorum of the Managers exists. A Manager elected to fill a vacancy other
than by reason of an increase in the number of Managers shall be elected for
the unexpired term of its predecessor in office.
4.7 Removal. The Sole Member may remove any Manager at any time
other than an Independent Manager, with or without cause.
4.8 Resignation. Any Manager may resign at any time. Such
resignation shall be made in writing and shall take effect at the time
specified therein or, if no time is specified therein, at the time of its
receipt by the remaining Manager; provided, that the resignation of an
Independent Manager shall not be effective until a replacement Independent
Manager has been appointed. The acceptance of a resignation shall not be
necessary to make it effective, unless so expressly provided in the
resignation.
4.9 Place of Meetings of Managers. All meetings of the Managers
may be held either within or without the State of Delaware at such place or
places as shall be determined from time to time by resolution of the
Managers.
4.10 Meetings of Managers. Meetings of the Managers may be held
when called by the Chairman of the Managers or by a majority of the Managers.
The Manager or Managers calling any meeting shall cause notice to be given of
such meeting, including therein the time, date and place of such meeting, to
each Manager at least two business days before such meeting; provided such
business day is any day other than a Saturday, Sunday or other day on which
banks are authorized or required by law to be closed in New York City, New
York. The business to be transacted at, or the purpose of, any meeting of
the Managers shall be specified in the notice or waiver of notice of any such
meeting. If fewer than all the Managers are present in person, by telephone
or by proxy, business transacted at any such meeting shall be confined to the
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business or purposes specifically stated in the notice or waiver of notice of
such meeting.
4.11 Quorum; Majority Vote. At all meetings of the Managers, the
presence in person, by telephone or by proxy of a majority of the Managers
shall be necessary and sufficient to constitute a quorum for the transaction
of business unless a greater number is required by this Agreement or by law.
The act of a majority of the Managers present in person, by telephone or by
proxy at a meeting at which a quorum is present in person, by telephone or by
proxy shall be the act of the Managers, except as otherwise provided by law,
the Certificate of Formation or this Agreement. If a quorum shall not be
present in person, by telephone or by proxy at any meeting of the Managers,
the Managers present in person, by telephone or by proxy at the meeting may
adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present in person, by telephone or by
proxy.
4.12 Methods of Voting; Proxies. A Manager may vote either in
person, by telephone or by proxy executed in writing by the Manager,
provided, however, that (x) the Person designated to act as proxy shall be a
Manager, and (y) that the Person designated to act as proxy for an
Independent Manager must be an Independent Manager. A telegram, telex,
cablegram or similar transmission by the Manager, or a photographic,
photostatic, facsimile or similar reproduction of a writing executed by the
Manager shall be treated as an execution in writing for purposes of this
Section 4.12. Proxies for use at any meeting of Managers or in connection
with the taking of any action by written consent shall be filed with the
Chairman of the Managers, before or at the time of the meeting or execution
of the written consent, as the case may be. All proxies shall be received
and taken charge of and all ballots shall be received and canvassed by the
Chairman of the Managers, who shall decide all questions touching upon the
qualifications of voters, the validity of the proxies, and the acceptance or
rejection of votes. No proxy shall be valid after 30 calendar days from the
date of its execution unless otherwise provided in the proxy. A proxy shall
be revocable unless the proxy form conspicuously states that the proxy is
irrevocable and the proxy is coupled with an interest. Should a proxy
designate two or more Managers to act as proxies, unless that instrument
shall provide to the contrary, a majority of such Managers present in person
or by telephone at any meeting at which their powers thereunder may be
exercised shall have and may exercise all the powers of voting or giving
consents thereby conferred, or if only one such Manager be present, then such
powers may be exercised by that one Manager; or, if an even number of such
Managers attend in person or by telephone and a majority do not agree on any
particular issue, the Chairman of the Managers shall not be required to
recognize such proxy with respect to such issue if such proxy does not
specify how the votes that are the subject of such proxy are to be voted with
respect to such issue.
4.13 Order of Business. At any meeting of the Managers, business
shall be transacted in the order as the Chairman of the Managers may
determine from time to time. The secretary of the meeting shall prepare
minutes of the meeting and such minutes shall be placed in the minute book of
the Company.
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4.14 Attendance and Waiver of Notice. Attendance of a Manager at
any meeting shall constitute a waiver of notice of such meeting, except where
a Manager attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
4.15 Compensation of Managers. Managers may receive any stated
salary for their services and expenses of attendance, if any, may be allowed
for attendance at each meeting of the Managers. Nothing contained in this
Agreement shall be construed to preclude any Manager from serving the Company
in any other capacity and receiving compensation for such service.
4.16 Committees. The Managers may, by resolution, designate (i)
from among the Managers one or more committees, each of which shall be
comprised of at least one Manager, and (ii) one or more of the Managers as
alternate members of any committee, who may, subject to any limitations
imposed by the Managers, replace absent or disqualified Managers at any
meeting of that committee. Such committee shall have and may exercise all of
the authority of the Managers (other than voting on the matters listed in
Section 4.4(b)), subject to the limitations set forth in the Act.
4.17 Actions Without a Meeting. Any action required or permitted
to be taken at a meeting of the Managers or any committee thereof may be
taken without a meeting, without prior notice, and without a vote, if a
consent in writing, setting forth the action so taken, is signed by the
Managers or members of the committee, as the case may be, having not fewer
than the minimum number of votes that would be necessary to take the action
at a meeting at which all Managers or committee members, as the case may be,
entitled to vote on the action were present and voted. Such consent shall
have the same force and effect, as of the date stated therein, as a vote of
such Managers or members of the committee, as the case may be, and may be
stated as such in any document or instrument filed with the Secretary of
State of the State of Delaware or in any certificate or other document
delivered to any person or entity. The signed consent shall be placed in the
minute book of the Company.
4.18 Telephone and Similar Meetings. The Managers, or members of
any committee thereof, may participate in and hold meetings by means of
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other. Such
participation in any such meeting shall constitute presence in person at such
meeting, except where a Person participates in such meeting for the express
purpose of objecting to the transaction of any business on the ground that
such meeting is not lawfully called or convened.
4.19 Presumption of Assent. A Manager, or any member of a
committee thereof, who is present in person, by telephone or by proxy at a
meeting of the Managers or a committee thereof at which action on any matter
is taken shall be presumed to have assented to the action unless his dissent
is entered in the minutes of the meeting or unless he files his written
dissent to such action with the Person acting as secretary of the meeting
before the adjournment thereof or forwards any dissent by certified or
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registered mail to the Company immediately after the adjournment of the
meeting provided, however, that the affirmative votes of the Independent
Managers shall be required for the purposes set forth in Section 4.4. Such
right to dissent shall not apply to a Manager or committee member who voted
in favor of such action.
5. Principal Place of Business. The principal place of business
of the Company within the State of Delaware shall be c/o Global
Securitization Services, LLC, 000 Xxxxx Xxxx, Xxxxx 000-00 Xxxxxxxxxx, XX
00000 XXX. The Company may establish any other place of business as the
Chairman of Managers may from time to time deem advisable.
6. Dissolution. The Company shall dissolve, and its affairs
shall be wound up (i) upon the unanimous election by the Members so to
dissolve the Company, (ii) at any time there are no Members unless the
Company is continued in accordance with the Act, or (iii) upon the entry of a
decree of judicial dissolution pursuant to Section 18-802 of the Act.
Notwithstanding any other provision of the Agreement, the bankruptcy of a
Member (as defined in Section 18-101 and 18-304 of the Act) ("Bankruptcy")
shall not cause such Member to cease to be a member of the Company and upon
the occurrence of such an event, the business of the Company shall continue
without dissolution. The existence of the Company as a separate legal entity
shall continue until the cancellation of its Certificate of Formation as
provided in the Act. Upon the occurrence of any event that causes the Member
to cease to be a member of the Company (other than upon a transfer by the
Member of all of its interest in the Company and the admission of a
substitute Member, in accordance with the Act and this Agreement), the
following provisions shall apply:
(a) to the fullest extent permitted by law, the personal
representative of the Member is hereby authorized to, and shall, within 30
days after the occurrence of the event that terminated the continued
membership of the Member in the Company, agree in writing (i) to continue the
Company and (ii) to the admission of the personal representative or its
nominee or designee, as the case may be, as the substitute Member, effective
as of the occurrence of the event that terminated the continued membership of
the Member in the Company, and thereafter all references in this Agreement to
the Member shall be deemed to refer to such substitute Member; and
(b) Xxxxx X. Xxxxxx (or if he is no longer an Independent Manager,
the successor to him as Independent Manager) shall, without any action of any
person or entity and simultaneously with the Member ceasing to be a member of
the Company, be admitted to the Company as a Member of the Company that has
no interest in the profits, losses and capital of the Company and has no
right to receive any distributions of Company assets (the "Special Member")
and shall continue the Company without dissolution. Until such time as a
substitute Member has been admitted to the Company, the Special Member shall
not have any right to resign from the Company or to assign or transfer its
rights as Special Member. Pursuant to Section 18-301 of the Act, the Special
Member shall not be required to make any capital contribution to the Company
and shall not receive a limited liability company interest in the Company.
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The Special Member may not bind the Company. Except as required by any
mandatory provision of the Act, the Special Member, in its capacity as
Special Member, shall have no right to vote on, approve or otherwise consent
to any action by, or matter relating to, the Company, including, without
limitation, the merger, consolidation or conversion of the Company. In order
to implement the admission of Xxxxx X. Xxxxxx as a Special Member, Xxxxx X.
Xxxxxx has executed a counterpart to this Agreement as of the date hereof.
Prior to his admission to the Company as Special Member, Xxxxx X. Xxxxxx
shall not be a Member of the Company.
7. Initial Capital Contributions. The Member has contributed the
property set forth on Exhibit A as its capital contribution to the Company,
having the value set forth opposite such Member's name in Exhibit A hereto.
8. Additional Contributions. No Members shall be required to
make any additional capital contribution to the Company without such Member's
consent. A Member may make additional capital contributions to the Company
with the unanimous written consent of the other Members.
9. Distributions. Distributions shall be made to the Members at
the times and in the aggregate amounts determined by the Members. Such
distributions shall be allocated among the Members in proportion to the
percentage interests of the Members, as set forth on Exhibit A attached
hereto (the "Membership Interests").
10. Transfers. A Member may not transfer, assign, pledge,
hypothecate or encumber, in whole or in part, its interest in the Company,
without the prior written consent of all the other Members. Notwithstanding
such written consent, no such transfer, assignment or pledge shall be made if
it would cause the Company to have in the aggregate more than 100 members or
otherwise cause the Delaware business trust known as the "X.X. Xxxxxxxx
Trust", Greyhound Funding LLC, Xxxx Valley LLC or the Company to be
classified as a publicly traded partnership taxable as a corporation.
11. No Resignation. No Member shall be entitled to resign or
withdraw from the Company, and no Member shall be entitled to receive any
distribution or otherwise receive the fair market value of its interest in
the Company in compensation for any purported resignation or withdrawal from
the Company.
12. Admission of Additional Members. One or more additional
members of the Company may be admitted to the Company with the consent of
Members representing 100% of the Membership Interests in the Company;
provided, however, that the Company may not admit any additional member if
such new member is not a wholly-owned subsidiary of PHH Vehicle Management
Services LLC or if the admission of such member would cause there to be more
than 100 members or otherwise cause the Delaware business trust known as the
"X.X. Xxxxxxxx Trust", Greyhound Funding LLC, Xxxx Valley LLC or the Company
to be classified as a publicly-traded partnership taxable as a corporation in
each case, in the sole determination of the Sole Member. For purposes of
determining the number of members under this Section 12, a person (the
"beneficial owner") indirectly owning an interest in the Company through a
partnership, grantor trust or S corporation (as such terms are used in the
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Code) (the "flow-through entity") shall be considered a member, but only if
(i) substantially all of the value of the beneficial owner's interest in the
flow-through entity is attributable to the flow-through entity's interest
(direct or indirect) in the Company and (ii) in the sole discretion of the
Sole Member, a principal purpose of the use of the tiered arrangement is to
permit the Company to satisfy the 100-member limitation.
13. Limitation on Liability of Members. Except as otherwise
expressly provided by the Act, the debts, obligations and liabilities of the
Company, whether arising in contact, tort or otherwise, shall be the debts,
obligations and liabilities solely of the Company, and neither the Member nor
any Manager shall be obligated personally for any such debt, obligation or
liability of the Company solely by reason of being a Member or Manager of the
Company.
14. No Election to be a Corporation. Neither the Company nor any
Manager or Member shall make or authorize any Person to make an election to
have the Company classified or taxed as a corporation for federal income tax
purposes or any applicable state or local income or franchise tax purposes.
15. No Market in Interests in the Company. Each Member covenants
and agrees that it will not transfer, assign, participate, pledge or
otherwise dispose of its interest in the Company, or cause its interest to be
marketed, on or through an established securities market. No transfer of an
interest in the Company may be made unless the transferee makes
representations substantially similar to those set forth in Exhibit C hereto.
16. Governing Law. This Agreement, including its existence,
validity, construction and operating effect, and the rights of each of the
parties hereto, shall be governed by and construed in accordance with the
laws of the State of Delaware (without regard to principles of conflicts of
law).
17. Amendments. In addition to the vote required by Section
4.4(b) of this Agreement, the vote of all of the Members shall be necessary
to amend or repeal this Agreement or to adopt a new limited liability company
agreement.
18. Waiver. To the fullest extent permitted by law, each Member
waives its rights, if any, to reject this Agreement in any bankruptcy, or
insolvency proceeding involving such Member.
19. Waiver of Certain Rights; No Bankruptcy Petition. To the
fullest extent permitted by law, each Member irrevocably waives any right it
may have to maintain any action for dissolution of the Company or for
partition of any Company asset. Each Member and each Manager (by agreeing to
act in such capacity) hereby covenants and agrees (or shall be deemed to have
hereby covenanted and agreed) that it will not, in the capacity as creditor
of the Company, institute against, or join with any other Person in
instituting against, the Company, any involuntary bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceedings under any Federal or state bankruptcy or similar law. In the
event that a Member or Manager takes action in violation of this Section 19,
the Company agrees that it shall file an answer with the bankruptcy court or
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otherwise properly contest the filing of such petition or the commencement of
such action and raise the defense that the Member or Manager, as the case may
be, has agreed in writing not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as its counsel advises
that it may assert. The provisions of this Section 19 shall survive the
termination of this Agreement and the resignation or removal of any Manager.
Nothing herein contained shall preclude participation by a Member or Manager
in assertion or defense of its claims in any such proceeding involving the
Company.
20. Integration. This Agreement constitutes the entire agreement
of the parties with respect to the subject matter hereof and supersedes and
replaces all prior agreements of the parties with respect to the subject
matter hereof, including the Original Agreement.
21. Binding Agreement. Notwithstanding any other provision of
this Agreement, the Member agrees that this Agreement constitutes a legal,
valid and binding agreement of the Member, and is enforceable against the
Member by the Independent Managers, in accordance with its terms. In
addition, the Independent Managers shall be intended beneficiaries of this
Agreement.
22. Effectiveness. This Agreement shall be effective as of
October 28, 1999.
23. Rating Agency Condition. Notwithstanding any other provision
of this Agreement, no member may transfer its interest in the Company and no
additional Members may be admitted to the Company unless each Rating Agency
with respect to each Series of Investor Notes (as defined in the Original
Base Indenture) outstanding shall confirm in writing that such transfer or
admission shall not result in a withdrawal or downgrading in the rating of
any such Series of Investor Notes (as defined in the Original Base
Indenture).
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IN WITNESS WHEREOF, the Member has entered into this Agreement as
of the day and year first above written.
SOLE MEMBER
PHH VEHICLE MANAGEMENT SERVICES LLC
By /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
MANAGERS
By /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Manager
By /s/ F. Xxxxxx Xxxxxxx
---------------------------------
Name: F. Xxxxxx Xxxxxxx
Title: Manager
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Manager
INDEPENDENT MANAGERS
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Independent Manager
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Independent Manager
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SPECIAL MEMBER
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Special Member
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EXHIBIT A
LIST OF MEMBERS, CAPITAL CONTRIBUTIONS
AND MEMBERSHIP INTERESTS
Member Name Capital Membership
and Address Contribution Interest
----------- ------------ ----------
PHH Vehicle Management Services LLC $381,531,550 100%
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
EXHIBIT B
Manager Agreement
October 28, 1999
Raven Funding LLC
c/o Global Securitization Services, LLC
000 Xxxxx Xxxx, Xxxxx 000-00
Xxxxxxxxxx, XX 00000
XXX
Re: Manager Agreement - Raven Funding LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned persons,
who have been designated as Managers of Raven Funding LLC, a Delaware limited
liability company (the "Company"), in accordance with the Amended and
Restated Limited Liability Company Agreement of the Company, dated as of
October 28, 1999, as it may be amended or restated from time to time (the
"LLC Agreement"), hereby agree as follows:
1. Each of the undersigned accepts such person's rights and
authority as a Manager (as defined in the LLC Agreement) under the LLC
Agreement and agrees to perform and discharge such person's duties and
obligations as a Manager under the LLC Agreement, and further agrees that
such rights, authorities, duties and obligations under the LLC Agreement
shall continue until such person's successor as a Manager is designated or
until such person's resignation or removal as a Manager in accordance with
the LLC Agreement. Each of the undersigned agrees and acknowledges that it
has been designated as a "manager" of the Company within the meaning of the
Delaware Limited Liability Company Act.
2. THIS MANAGER AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND
REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
This Manager Agreement may be executed in any number of counterparts,
each of which shall be deemed an original of this Manager Agreement and all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Manager
Agreement as of the day and year first above written.
----------------------
----------------------
EXHIBIT C
REQUIRED REPRESENTATIONS OF A TRANSFEREE
OF ANY INTEREST IN THE COMPANY
The [transferee] is not and will not become for U.S. federal
income tax purposes a partnership, grantor trust, or S corporation unless (i)
none of the direct or indirect beneficial owners of any interest in the
[transferee] have or ever will have all or substantially all the value of its
interest in such [transferee] attributable to the interest of such
[transferee] in the Company and (ii) it is not and will not be a principal
purpose of the arrangement involving the transferee to permit any partnership
to satisfy the 100 partner limitation of Treasury Regulation Section 1.7704-
1(h)(1)(ii) necessary for such partnership not to be classified as a publicly
traded partnership under the Code.
The [transferee] may not acquire nor sell, transfer, assign,
participate, pledge, or otherwise dispose of its interest in the Company, or
cause its interest to be marketed, on or through an established securities
market.
